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Dupree v. State

Florida Court of Appeals, First District

July 22, 2019

Antonio Dupree, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Robert R. Wheeler, Judge.

          Kevin Alvarez of the Law Office of Kevin Alvarez P.A., Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.

          PER CURIAM.

         Affirmed.

         See Ellis v State, 258 So.3d 491 (Fla. 1st DCA 2018).

          Osterhaus and Bilbrey, JJ., concur.

          Makar, J., dissenting.

         This is yet another case involving the statute prohibiting willfully fleeing or attempting to elude a "law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated," § 316.1935(3), Fla. Stat. (2019) (emphasis added), which has spawned two less than harmonious precedents in this District: Ellis v. State, 258 So.3d 491 (Fla. 1st DCA 2018), and Slack v. State, 30 So.3d 684, 687 (Fla. 1st DCA 2010).

         In Slack, an officer's testimony that "he was driving a 'marked patrol car' with 'lights on top' and that he activated his lights and siren" was deemed legally insufficient to prove the required element that the defendant was fleeing a patrol vehicle with "agency insignia and other jurisdictional markings prominently displayed on the vehicle." 30 So.3d at 687. Noting that "not all markings on law enforcement vehicles constitute agency insignia," this Court held that the failure to produce evidence that the police vehicle "had agency insignia or other jurisdictional markings" meant a "prima facie case of fleeing or attempting to elude a law enforcement officer" hadn't been shown, such that the defendant's motion for judgment of acquittal should have been granted. Id. (relying on Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001)) (finding lack of evidence "that any of the vehicles had an agency insignia as required by subsection 316.1935(3)," and noting that a city seal may be a jurisdictional marking but is not an agency insignia).

         The evidence in this case falls short of what was required in Slack. Here, the only evidence of "agency insignia and other jurisdictional markings prominently displayed on the vehicle" was the following testimony:

Q: Okay. Let me ask you about this. What exactly were you ...

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