In Re: Standard Jury Instructions in Criminal Cases-Report 2017-05.

Supreme Court of Florida
____________
No. SC17-1714
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2017-05.
[February 8, 2018]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize for publication and use the amended
standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following standard criminal jury
instructions: 28.4 (Leaving the Scene of a Crash Involving [Death] [Serious
Bodily Injury] [Injury]); 28.4(a) (Leaving the Scene of a Crash Involving Only
Damage to an Attended Vehicle or Attended Property); 28.4(b) (Leaving the Scene
of a Crash Involving Damage to an Unattended Vehicle or Unattended Property);
28.6 (Fleeing to Elude a Law Enforcement Officer); 28.7 (Fleeing to Elude a Law
Enforcement Officer (Siren and Lights Activated)); 28.8 (Fleeing to Elude a Law
Enforcement Officer (Siren and Lights Activated with High Speed or Reckless
Driving); 28.8(a) (Fleeing to Elude a Law Enforcement Officer (Siren and Lights
Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or
Death)); 28.8(b) (Aggravated Fleeing or Eluding (Leaving a Crash Involving
Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or
Death)); 28.8(c) (Aggravated Fleeing or Eluding (Leaving a Crash Involving
Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death));
28.8(d) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Serious Bodily
Injury, Injury or Death then Causing Injury or Property Damage to Another)); and
28.8(e) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Damage to a
Vehicle or Property then Causing Injury or Property Damage to Another)).
The Committee published all of the proposals in the January 15, 2017,
edition of The Florida Bar News. The Committee made responsive changes to a
majority of the proposals following its receipt of comments. The Court did not
publish the proposals after they were filed. Having considered the Committee’s
report, we authorize for publication and use the above-listed instructions as
proposed.
-2-
We note the more significant amendments to the standard criminal jury
instructions1 as follows. First, instructions 28.4, 28.8(b), 28.8(c), 28.8(d), and
28.8(e) are amended to remove the phrase “or accident” from the elements of the
offenses. Second, the Leaving the Scene instructions, 28.4, 28.4(a), and 28.4(b),
and the Aggravated Fleeing or Eluding instructions, 28.8(b), 28.8(c), 28.8(d), and
28.8(e), are amended to add a citation to Gaulden v. State, 195 So. 3d 1123 (Fla.
2016), with the definition for the phrase “a vehicle is ‘involved in a crash,’ ”
meaning “if it collides with another vehicle, person, or object.”
Having considered the Committee’s report, we authorize the amended
instructions, as set forth in the appendix to this opinion, for publication and use.2
New language is indicated by underlining, and deleted language is indicated by
struck-through type. In authorizing the publication and use of these instructions,
we express no opinion on their correctness and remind all interested parties that
1. Comments to the instructions also are amended based upon the
Committee’s proposals but are not discussed, as we caution all interested parties
that any comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability.
2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
-3-
this authorization forecloses neither requesting additional or alternative
instructions nor contesting the legal correctness of the instructions. The
instructions as set forth in the appendix shall become effective when this opinion
becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
28.4 LEAVING THE SCENE OF A CRASH INVOLVING [DEATH]
[SERIOUS BODILY INJURY] [INJURY]
§ 316.027(2), Fla. Stat.; § 316.062, Fla. Stat.
To prove the crime of Leaving the Scene of a Crash Involving [Death]
[Injury], the State must prove the following four elements beyond a
reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting
in [injury to] [death of] any person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.
3. a. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of
the circumstances, including the nature of the crash
or accident, of the injury to the person.
Give 4a, 4b, or both as applicable.
4. a. (Defendant) willfully failed to stop at the scene of the
crash or accident or as close to the crash or accident
as possible and remain there until [he] [she] had given
“identifying information” to the [injured person]
[driver] [occupant] [person attending the vehicle] and
to any police officer investigating the crash or
accident.
[or]
-5-
b. (Defendant) willfully failed to render “reasonable
assistance” to the injured person if such treatment
appeared to be necessary or was requested by the
injured person.
If the State proves that the defendant willfully failed to give any part of
the “identifying information” or willfully failed to give reasonable assistance,
the State satisfies this element of the offense.
Give if serious bodily injury is charged. § 316.027(1)(a), Fla. Stat.;
§ 316.027(2)(b), Fla. Stat.
If you find that (defendant) committed the crime of Leaving the Scene
of a Crash Involving Injury, you must then determine whether the State
proved beyond a reasonable doubt that the injury was a serious bodily injury.
“Serious bodily injury” means an injury to a person, including the
driver, which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
If you find that (defendant) committed the crime of Leaving the Scene
of a Crash Involving [Death] [Serious Bodily Injury] [or] [Injury], you must
then determine whether the State proved beyond a reasonable doubt that the
[injured person] [person who died] was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-
of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed
primarily for farm use] [a skateboard] [roller-skates] [in-line
skates] [a horse-drawn carriage] [an electric personal assistive
mobility device] [a wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].
-6-
Definitions. Give as applicable. § 316.003(75), Fla. Stat.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
§ 316.003(75), Fla. Stat.
A “vehicle” is any device in, upon, or by which any person or property
is, or may be, transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
“Reasonable assistance” includes carrying or making arrangements to
carry the injured person to a physician or hospital for medical treatment.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means knowingly, intentionally and purposely.
If the “vulnerable road user” enhancement is given, insert applicable
definitions from § 316.003, Fla. Stat.
Lesser Included Offenses
LEAVING THE SCENE OF A CRASH INVOLVING DEATH —
316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Leaving the Scene of a 316.027(2)(b) 28.4
Crash Involving
Serious Bodily Injury*
Leaving the Scene of a 316.027(2)(a) 28.4
Crash Involving
Injury*
Attempt 777.04(1) 5.1
-7-
LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS
BODILY INJURY — 316.027(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Leaving the Scene of a 316.027(2)(a) 28.4
Crash Involving Injury
Attempt 777.04(1) 5.1
Comments
* In Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999), the court stated
in dictum that Leaving the Scene of a Crash Involving Injury is a necessarily
lesser-included offense of Leaving the Scene of a Crash Involving Death. In other
areas, however, where there is no issue that a person was killed as a result of an
incident giving rise to criminal charges, non-death lessers are not appropriate. See,
e.g., State v. Barritt, 531 So. 2d 338 (Fla. 1988); Humphrey v. State, 690 So. 2d
1351 (Fla. 3d DCA 1997).
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008
[973 So. 2d 432], 2015 [166 So. 3d 1361], and 2016 [192 So. 3d 1190], and 2018.
28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY
DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY
§ 316.061(1), Fla. Stat.
To prove the crime of Leaving the Scene of a Crash Involving Only
Damage to an Attended Vehicle or Attended Property, the State must prove
the following four elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash.
2. The crash resulted only in damage to a vehicle or other property.
-8-
3. The [vehicle] [other property] was [driven] [attended] by [a person]
[(name of person)].
4. (Defendant) failed to stop at the scene of the crash or as close to the
crash as possible and remain there until [he] [she] had given
“identifying information” to the [driver or occupant of the damaged
vehicle] [person attending the damaged vehicle or property] [and to
any police officer at the scene of the crash or who is investigating the
crash].
If the State proves that the defendant failed to give any part of the
“identifying information,” the State satisfies this element of the offense.
Definitions.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
Fla. Stat. § 316.062(1), Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and if available and requested, the exhibition of the defendant’s
license or permit to drive.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Lesser Included Offenses
LEAVING THE SCENE OF A CRASH INVOLVING ONLY
DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED
PROPERTY—316.061(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
-9-
Comments
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007), which was decided before Gaulden v. State,
195 So. 3d 1123 (Fla. 2016).
As of August 2017, there was no case law directly addressing the issue of
whether the State must prove the defendant knew, or should have known, of either
the crash or the property damage. Compare State v. Dorsett, 158 So. 3d 557 (Fla.
2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995), dealing with § 316.027,
Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness
requirement.
This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2018.
28.4(b) LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE
TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY
§ 316.063(1), Fla. Stat.
To prove the crime of Leaving the Scene of a Crash Involving Damage
to an Unattended Vehicle or Unattended Property, the State must prove the
following four elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
collision.
2. The crash or collision resulted in damage to another vehicle or
other property.
3. The vehicle or other property was not driven or attended by any
person.
4. (Defendant) failed to immediately stop at the scene of the crash or
collision and then and there either
- 10 -
a. locate and notify the operator or owner of the vehicle
or other property of [his] [her] name and address and
the registration number of the vehicle [he] [she] was
driving, or
b. attach securely in a conspicuous place in or on the
vehicle or other property a written notice giving [his]
[her] name and address and the registration number
of the vehicle [he] [she] was driving, and, without
unnecessary delay, notify the nearest office of a duly
authorized police authority.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Lesser Included Offense
LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO
AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY—
316.063(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
- 11 -
As of September 2015August 2017, there was no case law directly
addressing the issue of whether the State must prove the defendant knew, or should
have known, of either the crash or the property damage. Compare State v. Dorsett,
158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652 So. 2d 370 (Fla. 1995),
dealing with § 316.027, Fla. Stat., which, unlike § 316.063, Fla. Stat., contains an
explicit willfulness requirement.
This instruction was adopted in 2016 [192 So. 3d 1190] and amended in
2018.
28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
§ 316.1935(1), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in
Florida.
2. A duly authorized law enforcement officer ordered the defendant
to stop or remain stopped.
Give 3a or 3b as applicable.
3. (Defendant), knowing [he] [she] had been ordered to stop by a duly
authorized law enforcement officer,
a. willfully refused or failed to stop the vehicle in compliance
with the order
b. having stopped the vehicle, willfully fled in a vehicle in an
attempt to elude the officer.
Definitions.
“Operator” means any person who is in actual physical control of a
motor vehicle upon the highway [or who is exercising control over or steering
a vehicle being towed by a motor vehicle].
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Fla. Stat. § 316.003(53), Fla. Stat.
“Street or highway” means the entire width between boundary lines of
every way or place of whatever nature when any part thereof is open to the
public for purposes of vehicular traffic.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police 316.072(3) 28.18
or Fire Department
Officials*
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).*The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
- 13 -
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008
[976 So. 2d 1081], 2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2018.
28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated)
§ 316.1935(2), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in
Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly
authorized law enforcement officer, willfully fled in a vehicle in an
attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement
patrol vehicle with agency insignia and other jurisdictional markings
prominently displayed on the vehicle and with siren and lights
activated.
Definitions.
“Operator” means any person who is in actual physical control of a
motor vehicle upon the highway [or who is exercising control over or steering
a vehicle being towed by a motor vehicle].
Fla. Stat. § 316.003(53), Fla. Stat.
“Street or highway” means the entire width between boundary lines of
every way or place of whatever nature when any part thereof is open to the
public for purposes of vehicular traffic.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
- 14 -
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude 316.1935(1) 28.6
Reckless Driving (if 316.192(1)(b) 28.5
there is evidence that
the fleeing was in a
motor vehicle)
Disobedience to Police
or Fire Department 316.072(3) 28.18
Officials*
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).*The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008
[976 So. 2d 1081], 2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2018.
- 15 -
28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving)
§ 316.1935(3)(a), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the
State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in
Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly
authorized law enforcement officer, willfully fled in a vehicle in an
attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement
patrol vehicle with agency insignia and other jurisdictional markings
prominently displayed on the vehicle and with siren and lights
activated.
4. During the course of the fleeing or the attempt to elude, (defendant)
drove at high speed or in any manner demonstrating a wanton
disregard for the safety of persons or property.
Definitions.
“Operator” means any person who is in actual physical control of a
motor vehicle upon the highway [or who is exercising control over or steering
a vehicle being towed by a motor vehicle].
Fla. Stat. § 316.003(53), Fla. Stat.
“Street or highway” means the entire width between boundary lines of
every way or place of whatever nature when any part thereof is open to the
public for purposes of vehicular traffic.
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
- 16 -
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935 (3)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude 316.1935(2) 28.7
Fleeing to elude 316.1935(1) 28.6
Reckless Driving (if 316.192(1) 28.5
wanton disregard for the
safety of persons or
property is charged or if
there is evidence that
the fleeing was in a
motor vehicle)
Disobedience to Police
or Fire Department 316.072(3) 28.18
Officials*
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).*The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008
[976 So. 2d 1081], 2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2018.
- 17 -
28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving Causing
Serious Bodily Injury or Death)
§ 316.1935(3)(b), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the
State must prove the following five elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in
Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly
authorized law enforcement officer, willfully fled in a vehicle in an
attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement
patrol vehicle with agency insignia and other jurisdictional
markings prominently displayed on the vehicle and with siren and
lights activated.
4. During the course of the fleeing or the attempt to elude, (defendant)
drove at high speed or in any manner demonstrating a wanton
disregard for the safety of persons or property.
5. As a result of (defendant’s) fleeing or eluding at high speed or
wanton disregard for safety, [he] [she] caused [the death of] [serious
bodily injury to] [another person] [a law enforcement officer
involved in pursuing or otherwise attempting to stop [his] [her]
vehicle].
Definitions.
“Operator” means any person who is in actual physical control of a
motor vehicle upon the highway [or who is exercising control over or steering
a vehicle being towed by a motor vehicle].
Fla. Stat. § 316.003(53), Fla. Stat
“Street or highway” means the entire width between boundary lines of
every way or place of whatever nature when any part thereof is open to the
public for purposes of vehicular traffic.
- 18 -
Fla. Stat. § 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER —
316.1935(3)(b)
CATEGORY CATEGORY FLA. STAT. INS. NO.
ONE TWO
Fleeing to elude 316.1935(3)(a) 28.8
Fleeing to elude 316.1935(2) 28.7
Fleeing to elude 316.1935(1) 28.6
Reckless Driving 316.192(1) 28.5
(if wanton
disregard for the
safety of persons
or property is
charged or if there
is evidence that the
fleeing is in a
motor vehicle)
Disobedience to
Police or Fire 316.072(3) 28.18
Department
Officials*
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).*The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
- 19 -
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2018.
28.8(b) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Serious Bodily Injury or Death)
§ 316.1935(4)(b) and § 316.027, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting
in [serious bodily injury to] [injury to] [the death of] any
person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
Give 3a if death is charged or 3b if injury or serious bodily injury is
charged.
3. a. (Defendant) knew, or should have known from all of the
circumstances, including the nature of the crash or
accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of the
circumstances, including the nature of the crash or
accident, of the injury to the person.
Give 4a or 4b or both as applicable.
4. (Defendant)
a. willfully failed to stop at the scene of the crash or accident
or as close to the crash or accident as possible and remain
- 20 -
there until [he] [she] had given “identifying information” to
the [injured person] [driver] [occupant][person attending
the vehicle or other damaged property] and to any police
officer investigating the crash or accident.
[or]
b. willfully failed to render “reasonable assistance” to
the injured person if such treatment appeared to be
necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant), knowing [he][she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his][her]vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [serious bodily injury to] [the death of] (name of
victim).
§ 316.027, Fla. Stat.
A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”
If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
- 21 -
If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-of-
way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed primarily
for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-
drawn carriage] [an electric personal assistive mobility device] [a
wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the
roadway]].
Definitions. Give as applicable.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
“Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.
- 22 -
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
§ 316.027(1)(a), Fla. Stat.
“Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Death and then Causing Serious Injury Bodily
Injury or Death) —
316.1935(4)(b) and 316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Leaving Scene of a 316.027(2)(c) 28.4
Crash Involving
Death*
Leaving the Scene of 316.027(2)(b) 28.4
a Crash Involving
Serious Bodily
Injury*
Aggravated Fleeing 316.1935(4)(a) 28.84
Leaving Scene of a 316.027(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO 316.1935(1) 28.6
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
- 23 -
Disobedience to Police
or Fire Department 316.072(3) 28.18
Officials**
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016 [192 So. 3d 1190], and
2018.
- 24 -
28.8(c) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then
Causing Serious Bodily Injury or Death)
§ 316.1935(4)(b) and § 316.061, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident.
2. The crash or accident resulted only in damage to a vehicle
or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a
person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or
accident or as close to the crash or accident as possible and
remain there until [he] [she] had given “identifying
information” to the [driver or occupant of the damaged
vehicle] [person attending the damaged vehicle or property]
[and to any police officer at the scene of the crash or
accident or who is investigating the crash or accident.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his] [her] vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] she] caused
[serious bodily injury to] [the death of] (name of victim).
If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.
- 25 -
Definitions.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 316.062(1), Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Aggravated Fleeing 316.1935(4)(a) 28.85
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving the Scene of a 316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police 316.072(3) 28.18
or Fire Department
Officials**
- 26 -
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.
As of September 2015August 2017, there was no case law directly
addressing the issue of whether the State must prove the defendant knew, or should
have known, of either the crash or the property damage to violate this statute.
Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652
So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061,
Fla. Stat., contains an explicit willfulness requirement.
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016 [192 So. 3d 1190], and
2018.
- 27 -
28.8(d) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then
Causing Injury or Property Damage to Another)
§ 316.1935(4)(a) and § 316.027 Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident occurring on public or private property resulting in
[serious bodily injury to] [injury to] [the death of] any
person.
2. (Defendant) knew that [he] [she] was involved in a crash or
accident.
Give 3a if death is charged or 3b if serious bodily injury or injury is
charged.
3. a. (Defendant) knew, or should have known from all of the
circumstances, including the nature of the crash or
accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of the
circumstances, including the nature of the crash or
accident, of the injury to the person.
Give 4a or 4b or both as applicable.
4. (Defendant)
a. willfully failed to stop at the scene of the crash or
accident or as close to the crash or accident as
possible and remain there until [he] [she] had given
“identifying information” to the [injured person]
[driver] [occupant] [person attending the vehicle or
other damaged property] and to any police officer
investigating the crash or accident.
[or]
- 28 -
b. willfully failed to render “reasonable assistance” to
the injured person if such treatment appeared to be
necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant) knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his][her]vehicle in compliance with the order to stop][and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [an injury to] [damage to the property of] (name of
victim).
§ 316.027, Fla. Stat.
A driver has the legal duty to immediately stop [his] [her] vehicle at the
scene of the crash or accident or as close to the scene of the crash or accident
as possible and provide “identifying information.”
If the State proves beyond a reasonable doubt that the defendant
willfully failed to give any part of the “identifying information” or willfully
failed to give reasonable assistance, the State satisfies this element of the
offense.
Enhancement. Give when the State alleged the victim was a “vulnerable
road user.” § 316.027(2)(f), Fla. Stat.
If you find that the State proved beyond a reasonable doubt that
(defendant) committed elements #1 – #4, you must then determine whether the
State also proved beyond a reasonable doubt that the [injured person] [person
who died] in element #1 was:
[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
- 29 -
[engaged in the provision of emergency services within the right-of-
way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on
the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed primarily
for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-
drawn carriage] [an electric personal assistive mobility device] [a
wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].
Definitions. Give as applicable.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 316.062, Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
“Reasonable assistance” includes carrying or making arrangement to
carry the injured person to a physician or hospital for medical treatment.
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
§ 316.027(1)(a), Fla. Stat.
“Serious bodily injury” means an injury to a person [including the
driver,] which consists of a physical condition that creates a substantial risk of
death, serious disfigurement, or protracted loss or impairment of the function
of a bodily member or organ.
- 30 -
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Death and then Causing Injury or Property
Damage to Another) —
316.1935(4)(a) and § 316.027(2)(c)
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Leaving Scene of a 316.027(2)(c) 28.4
Crash Involving
Death*
Leaving Scene of 316.027(2)(b) 28.4
Crash Involving
Serious Bodily
Injury*
Leaving Scene of a 316.027(2)(a) 28.4
Crash Involving
Injury*
Fleeing to Elude LEO 316.1935(1) 28.6
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police
or Fire Department 316.072(3) 28.18
Officials**
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death,
Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is
charged as a separate count, then Leaving the Scene should not be given as a
lesser-included offense of Aggravated Fleeing or Eluding.
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires
- 31 -
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016 [192 So. 3d 1190], and
2018.
28.8(e) AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Damage to a Vehicle or Property then
Causing Injury or Property Damage to Another)
§ 316.1935(4)(a) and § 316.061, Fla. Stat.
To prove the crime of Aggravated Fleeing or Eluding, the State must
prove the following seven elements beyond a reasonable doubt:
1. (Defendant) was the driver of a vehicle involved in a crash or
accident.
2. The crash or accident resulted only in damage to a vehicle
or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a
person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or
accident or as close to the crash or accident as possible and
- 32 -
remain there until [he] [she] had given “identifying
information” to the [driver or occupant of the damaged
vehicle] [person attending the damaged vehicle or property]
[and to any police officer at the scene of the crash or
accident or who is investigating the crash or accident].
5. A duly authorized law enforcement officer ordered
(defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by
a law enforcement officer, [willfully refused or failed to stop
[his] [her] vehicle in compliance with the order to stop] [and
after having stopped in knowing compliance with the order
to stop, willfully fled in a vehicle in an attempt to elude the
law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] [she]
caused [injury to] [damage to the property of] (name of
victim).
If the State proves beyond a reasonable doubt that the defendant failed
to give any part of the “identifying information,” the State satisfies this
element of the offense.
Definitions.
Gaulden v. State, 195 So. 3d 1123 (Fla. 2016).
A vehicle is “involved in a crash” if it collides with another vehicle,
person, or object.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 316.062(1), Fla. Stat.
“Identifying information” means the name, address, vehicle registration
number, and, if available and requested, the exhibition of the defendant’s
license or permit to drive.
§ 316.003(75), Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
- 33 -
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving A Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
Fleeing to Elude LEO 316.1935(1) 28.6
Leaving the Scene of a 316.061 28.4(a)
Crash Involving
Damage to Vehicle or
Property*
Fleeing to Elude LEO 316.1935(3)(b) 28.81
Fleeing to Elude LEO 316.1935(3)(a) 28.8
Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving (if 316.192(1)(b) 28.5
there was evidence
that the fleeing was in
a motor vehicle)
Disobedience to Police 316.072(3) 28.18
or Fire Department
Officials**
Comments
* § 316.1935(4), Fla. Stat., states that a person may be charged with both
Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving
Damage to Attended Property. Therefore, if Leaving the Scene is charged as a
separate count, then Leaving the Scene should not be given as a lesser-included
offense of Aggravated Fleeing or Eluding.
As of September 2015August 2017, there was no case law directly
addressing the issue of whether the State must prove the defendant knew, or should
have known, of either the crash or the property damage to violate this statute.
Compare State v. Dorsett, 158 So. 3d 557 (Fla. 2015), and Mancuso v. State, 652
So. 2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061,
Fla. Stat., contains an explicit willfulness requirement.
For the category two lesser included offense, see Koch v. State, 39 So. 3d
464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires
- 34 -
Disobedience to Police to be given as a lesser when the charging document tracks
the Fleeing statute. See Koch v. State, 39 So. 3d 464 (Fla. 2d DCA 2010); Lucas v.
State, 192 So. 3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience
to Police in the Category Two box, however, because Disobedience to Police
requires the police order or direction to be lawful and the crime of Fleeing to Elude
LEO does not contain that element. See State v. Kirer, 120 So. 3d 60 (Fla. 4th
DCA 2013); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
It is unclear whether the courts will interpret the statutory phrase of
“involved in a crash” as including instances where the defendant’s vehicle did not
collide with another vehicle, person, or object, but the defendant’s driving pattern
caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder,
975 So. 2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So. 3d
1123 (Fla. 2016)).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in
2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016 [192 So. 3d 1190], and
2018.
- 35 -