BOOYAH Flashcards

Question

In a bifurcated possession of firearm by convicted felon jury trial, the jury must decide in the first phase whether the defendant possessed the weapon. After that determination is made, the state must then produce evidence about convictions. The court cannot make the decision about whether defendant is a convicted felon over the defendant’s objection. Defendant’s admission in the first phase that he had been convicted does not allow the court to make the decision rather than the jury. // Walters v. S., 933 So. 2d 1229 (3d DCA 2006), 31 F.L.W. D1932 (7/19/2006)

Answer 1

In a bifurcated possession of firearm by convicted felon jury trial, the jury must decide in the first phase whether the defendant possessed the weapon. After that determination is made, the state must then produce evidence about convictions. The court cannot make the decision about whether defendant is a convicted felon over the defendant’s objection. Defendant’s admission in the first phase that he had been convicted does not allow the court to make the decision rather than the jury. // Walters v. S., 933 So. 2d 1229 (3d DCA 2006), 31 F.L.W. D1932 (7/19/2006)

Answer 2

The court need not bifurcate a possession of firearm by a felon trial. The status of being a convicted felon is a necessary element of the crime, and the jury should hear evidence on both elements of the offense. // Syder v. S., 921 So. 2d 871 (4th DCA 2006), 31 F.L.W. D734 (3/8/2006)

Answer 3

Defendant was in the back seat of a car that was lawfully stopped. The LEO got each person out of the car and searched it finding a gun under the front passenger seat. Defendant admitted the gun was his. He was charged with carrying a concealed weapon. Held: A gun under the front seat can be within the control of a passenger in the back seat of a car for concealed weapon purposes (but see dissent). // J.E.S. v. S., 931 So. 2d 276 (5th DCA 2006), 31 F.L.W. D1711 (6/23/2006)

Answer 4

In a possession of a weapon by a convicted felon case, the state must prove that the item possessed was a weapon and that it was concealed. The court errs in failing to instruct the jury about the definition of a weapon when the item is a common household item, such as a paring knife. // Whether a paring knife constitutes a “dirk” or an “other deadly weapon” is a jury issue and cannot be presumed by the court. // Caldwell v. S., 920 So. 2d 727 (5th DCA 2006), 31 F.L.W. D436 (2/10/2006)

Answer 5

Under the law in effect in 1989, the determination whether a knife was a “deadly weapon” or a “common pocketknife” for armed burglary purposes was a decision for the jury. The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), refining the definition of a “common pocketknife,” does not apply retroactively. // (See this case, including concurring and dissenting opinions, for discussion of when the Court’s decisions are to applied retroactively.) // Bunkley v. S., 882 So. 2d 890 (Fla. 2004), 29 F.L.W. S251 (5/27/2004)

Answer 6

The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), holding that a folding pocketknife with a blade of 4 inches or less falls within the statutory exception to the definition of a “weapon” in §790.001(3), is not applied retroactively. // Bunkley v. S., 833 So. 2d 739 (Fla. 2002), 27 F.L.W. S967 (11/21/2002)

Answer 7

Under §790.235, possession of a concealed weapon by a violent career criminal, a firearm is excluded from the definition of “concealed weapon.” when the defendant possesses a gun concealed in a bag, he can be convicted of possession of a firearm by a violent career criminal, but not possession of a concealed weapon. // •Baldwin v. S., 857 So. 2d 249 (2d DCA 2003), 28 F.L.W. D2079 (9/5/2003)

Answer 8

A BB gun with no cartridge that is incapable of firing is not a deadly weapon for carrying a concealed weapon purposes. // E.S. v. S., 886 So. 2d 311 (3d DCA 2004), 29 F.L.W. D2509 (11/10/2004)

Answer 9

A small wooden bat is not a “weapon” for concealed weapons purposes. // (See this case for discussion of what constitutes a “billie” for concealed weapons purposes.) // M.D. v. S., 873 So. 2d 525 (4th DCA 2004), 29 F.L.W. D1207 (5/19/2004)

Answer 10

A gun located in a closed console between the driver’s seat and the passenger seat, is “securely encased” for § 790.25(5) purposes. // Dixon v. S., 831 So. 2d 775 (4th DCA 2002), 27 F.L.W. D2589 (12/4/2002)

Answer 11

Whether a knife is a “deadly weapon” for purposes of carrying a concealed weapon is a question for the jury. The court errs in refusing to give a requested defense instruction on the definition of a deadly weapon. // McNeally v. S., 884 So. 2d 494 (5th DCA 2004), 29 F.L.W. D2248 (10/8/2004)

Answer 12

A kitchen knife may be a common household item or a “dirk” pursuant to §790.001(3)(a). The decision is up to the jury, and the court errs in granting a c(4) motion on the issue. // S. v. Walthour, 876 So. 2d 594 (5th DCA 2004), 29 F.L.W. D1360 (6/4/2004)

Answer 13

A straight-edged razor with a seven-inch handle and a two-inch blade is not a common household item and defendant is properly convicted of carrying a concealed weapon. // R.R. v. S., 826 So. 2d 465 (5th DCA 2002), 27 F.L.W. D2071 (9/20/2002)

Answer 14

A Chinese star is an “other deadly weapon” under the concealed weapon statute. An object can be considered a deadly weapon when its sole modern use is to cause great bodily harm. // C.A.W. v. S., 817 So. 2d 1077 (5th DCA 2002), 27 F.L.W. D1340 (6/7/2002)

Answer 15

To get a mandatory minimum sentence for possession of a firearm by a convicted felon, the defendant’s possession must be actual. While the defendant can be convicted of possession by being in constructive possession, to impose the mandatory minimum the defendant must be in actual possession. // Bundage v. S., 814 So. 2d 1133 (2d DCA 2002), 27 F.L.W. D781 (4/5/2002)

Answer 16

LEOs saw defendant drive up to a house that was being searched pursuant to a search warrant. Defendant turned around and drove away, and the officers followed him. They made a traffic stop, a drug dog alerted, and a search revealed a gun under the seat. Defendant was charged with possession of a firearm by a felon and he sought to exclude evidence that he drove away from the police. Held: Court properly admits the evidence. While it is not evidence of a collateral crime, it is evidence of his knowledge of the presence of the gun. // Barrientos v. S., 825 So. 2d 1065 (4th DCA 2002), 27 F.L.W. D2087 (9/18/2002)

Answer 17

Restoration of civil rights is an affirmative defense in a possession of firearm by convicted felon case, and the failure of the state to show that civil rights were not restored does not require dismissal. // Kluth v. S., 821 So. 2d 1210 (5th DCA 2002), 27 F.L.W. D1698 (7/26/2002)

Answer 18

Where the judgment admitted into evidence does not have a middle initial, fingerprints, or other identifying information, the state fails to prove that defendant is the subject of the conviction and the court errs in failing to grant a JOA in a possession of firearm by a felon case. // Mason v. S., 853 So. 2d 544 (1st DCA 2003), 28 F.L.W. D2021 (8/29/2003)

Answer 19

Section 790.23(1)(b), possession of a firearm by a felon, is not unconstitutional when applied to a person who was found to have committed a felony as a juvenile and had adjudication withheld. The fact that the statute requires an adjudication for a felony as an adult, but a withhold makes the statute apply for a juvenile proceeding, does not violate constitutional rights. // •S. v. Menuto, 912 So. 2d 603 (2d DCA 2005), 30 F.L.W. D1173 (5/4/2005)

Answer 20

The court errs in refusing to sever a possession of firearm by a felon charge when the motion is made after jury selection for tactical reasons. // Tucker v. S., 884 So. 2d 168 (2d DCA 2004), 29 F.L.W. D1702 (7/23/2004)

Answer 21

In a possession of firearm by a felon case, the fact of defendant’s status as a felon is sufficiently proved by proving identity and introducing a copy of the judgment. The state need not introduce the entire record of the case that resulted in a conviction. // Keith v. S., 844 So. 2d 715 (2d DCA 2003), 28 F.L.W. D1128 (5/9/2003)

Answer 22

When defendant is charged with possession of a firearm by a felon and robbery, the court need not sever the charges, but may conduct a bifurcated trial. In a bifurcated trial, the jury first hears the robbery case, and if he is convicted, the same jury then hears evidence regarding the defendant’s status as a convicted felon. // •Jackson v. S., 881 So. 2d 711 (3d DCA 2004), 29 F.L.W. D2034 (9/9/2004)

Answer 23

Defendant may not get a mandatory minimum under the 10/20/Life statute for possession of a firearm by a felon when the jury does not make a specific finding that he possessed a firearm. // James v. S., 868 So. 2d 1242 (4th DCA 2004), 29 F.L.W. D702 (3/24/2004)

Answer 24

The “antique firearm” exception to the definition of a “firearm” under §790.001(6) applies to felons, and so it is not unlawful for a felon to be in possession of an antique firearm. // A firearm is not rendered an “antique” because it is a muzzle-loading gun that uses black powder. To be an antique, the gun must have been manufactured before 1918 or a replica of a gun manufactured before that date (but see dissent). // (See this case, including dissent, for an extensive discussion of the antique firearm exception, and its applicability to felons using such guns for hunting.) // •Bostic v. S., 902 So. 2d 225 (5th DCA 2005), 30 F.L.W. D1235 (5/13/2005)

Answer 25

Possession of a firearm by a felon is subject to a 3-year mandatory, not 10. // Johnson v. S., 855 So. 2d 218 (5th DCA 2003), 28 F.L.W. D2241 (9/26/2003)

Answer 26

A BB gun qualifies as a weapon for purposes of possession of a weapon on school property, §790.115(2)(b). // T.H. v. S., 859 So. 2d 549 (4th DCA 2003), 28 F.L.W. D2655 (11/19/2003)

Answer 27

Under §790.065(12), a firearm buyer cannot be prosecuted for answering falsely on the FDLE form inquiring about prior convictions. // Randall v. S., 805 So. 2d 917 (2d DCA 2001), 26 F.L.W. D2560 (10/26/2001) // see S. v. Watson, 788 So. 2d 1026 (Fla. 2d DCA 2001)

Answer 28

The court errs in denying a JOA in a possession of firearm by a felon case where the evidence of identity was a matching name and fingerprints that were not introduced into evidence. // (See this case for discussion of the sufficiency of fingerprint evidence in identifying a defendant as the person who was the subject of a prior conviction.) // Ling v. S., 15 So. 3d 914 (1st DCA 2009), 34 F.L.W. D1595 (8/6/2009)

Answer 29

Defendant was charged with a robbery occurring on March 13. The state presented evidence that on March 21 the police found a gun in a barbecue grill at his girlfriend’s apartment, and the victim testified that the gun looked like the gun used in the robbery. Defendant was convicted of robbery, and in a separate trial he was acquitted of possession of a firearm by a felon, in a trial where he stipulated to his prior conviction. Held: The subsequent acquittal requires reversal of the conviction (question certified). // Hines v. S., 983 So. 2d 721 (1st DCA 2008), 33 F.L.W. D1493 (6/10/2008)

Answer 30

The second amendment is not a defense to a charge of possession of a firearm by a convicted felon, as the decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) do not extend 2d amendment protection to persons convicted of felonies. // Epps v. S., ___ So. 3d ___, 36 F.L.W. D475 (1st DCA 3/2/2011)

Answer 31

LEO got a call about a drunk driver with a gun. He pulled over defendant, and got him out of the car. On the front seat under some papers were a gun. Held: Even though defendant was out of the car when the police located the gun, defendant was in possession of the gun prior to getting out of the car and his is properly convicted of possession of a concealed weapon. // Evans v. S., 24 So. 3d 1257 (1st DCA 2009), 35 F.L.W. D84 (12/31/2009)

Answer 32

Defendant may not be convicted of both possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon for the same act. // Pryor v. S., 48 So. 3d 159 (1st DCA 2010), 35 F.L.W. D2570 (11/22/2010)

Answer 33

Where defendant has a probation condition that prohibits possession of a “weapon,” the court errs in finding him in violation as a result of his possession of a common pocketknife. // The court errs in finding defendant in violation of probation for possessing a butcher knife, when the charging affidavit did not allege possession of that item. // Bishop v. S., 21 So. 3d 830 (1st DCA 2008), 33 F.L.W. D2438 (10/21/2008)

Answer 34

When defendant stipulates that he was a convicted felon, the court properly informs the jury of the stipulation and instructs the jury on all elements of the crime. The court cannot fail to instruct on the element, which would result in a conviction for a nonexistent crime. // (See this case for discussion of the difference between a bifurcated trial on the issue of prior convictions and the effect of a stipulation to the element.) // Milton v. S., 19 So. 3d 1143 (1st DCA 2009), 34 F.L.W. D2124 (10/14/2009)

Answer 35

Defendant was found with an unloaded pistol wedged between the front seats of his car. The magazine was in the closed center console. Held: The court properly grants a motion dismissing a charge of possession of a concealed firearm. Because the ammunition was securely encased, the gun was not readily accessible for immediate use (but see dissent discussing when an unloaded gun is considered a concealed weapon). // S. v. Weyant, 990 So. 2d 675 (2d DCA 2008), 33 F.L.W. D2231 (9/19/2008)

Answer 36

When the defense refuses to stipulate to defendant's status as a convicted felon, the state properly introduces certified copies of judgments of conviction. However, including copies of the informations, sentencing orders, and related documents is error. // Johnson v. S., 42 So. 3d 899 (2d DCA 2010), 35 F.L.W. D1900 (8/20/2010)

Answer 37

The court errs in dismissing a concealed firearm charge where the gun was found under the driver’s seat of a car defendant was driving. The evidence is sufficient to go to trial. // (See this case for discussion of cases where the gun is under a seat in a car.) // S. v. Lopez, 980 So. 2d 1270 (2d DCA 2008), 33 F.L.W. D1275 (5/9/2008)

Answer 38

Defendant was charged with one count of possession of a firearm by a felon, and listed two guns stating that he possessed one or both guns at three separate times and places over a two-day period. The court refused a statement of particulars, and at trial refused to give a special instruction that required the jury to find unanimously that he possessed a specific gun at a specific time. Held: The court properly allows the state to proceed on the information as charged, and no statement of particulars is required. However, the court errs in refusing the requested instruction, because the jury could find him guilty while disagreeing on the gun and circumstances of his possession. // Saldana v. S., 980 So. 2d 1220 (2d DCA 2008), 33 F.L.W. D1229 (5/2/2008)

Answer 39

LEO stopped defendant’s car for a noise violation. A dog alerted to drugs in the car, and the officer detained defendant in his patrol car. While searching the car, the officer found an unloaded gun under the driver’s seat with ammunition in the center console. Held: The gun was not readily accessible for immediate use and the court errs in refusing to grant a c(4) motion. // Strikertaylor v. S., 997 So. 2d 488 (2d DCA 2008), 33 F.L.W. D2853 (12/17/2008)

Answer 40

Section 790.23(1) has two subparts. It makes it illegal for a convicted felon to have in his care, custody, possession or control” any firearm or other listed weapon. Second, it makes it illegal for a felon to “carry a concealed weapon.” An information that alleges defendant had in his possession a concealed weapon does not properly charge the crime. // Where defendant is in possession of a box cutter that he uses as a weapon, the state must charge and the court must instruct the jury that he “carried” a concealed weapon to properly charge a crime under the statute. Charging “possession” is not sufficient. // Williams v. S., 48 So. 3d 192 (2d DCA 2010), 35 F.L.W. D2611 (12/1/2010)

Answer 41

Where the defendant is found in possession of a knife with a blade less than four inches long that is folded and put in his pocket, the court err in failing to grant a c(4) motion on a charge of carrying a concealed weapon. The knife qualifies as a “common pocketknife” under §790.001(13) and is not a weapon. // Browder v. S., 27 So. 3d 150 (2d DCA 2010), 35 F.L.W. D271 (1/29/2010)

Answer 42

The court must impose a three-year mandatory minimum upon conviction of possession of a firearm by a felon when the defendant has the gun in his actual possession. The crime can be committed by constructive possession, but the mandatory cannot be imposed in a constructive possession case. // S. v. Mulus, 970 So. 2d 349 (3d DCA 2007), 32 F.L.W. D1995 (8/22/2007)

Answer 43

LEO stopped a car to make an arrest of the driver, for whom he had a warrant. One officer got the passenger out, and another removed defendant driver. While defendant was getting out of the car, the officer saw a gun on the floor of the driver’s side. The state presented evidence that the car belonged to defendant’s girlfriend, and she had not put the gun there. Held: The circumstantial evidence is sufficient to sustain a finding of possession of a firearm by a felon. // Barlatier v. S., 26 So. 3d 29 (3d DCA 2009), 34 F.L.W. D2587 (12/16/2009)

Answer 44

A nail clipper with a portion sharpened into a knife is not a “common pocketknife” under § 790.001(13). // Johnson v. S., 21 So. 3d 911 (3d DCA 2009), 34 F.L.W. D2308 (11/12/2009)

Answer 45

Defendant was charged with armed robbery resisting without violence, and possession of a firearm by a felon. The court bifurcated the trial, and the jury heard evidence relating to the robbery and resisting first. The jury acquitted on robbery, convicted on resisting, and found by special verdict that he possessed a firearm. The state then presented evidence of defendant's status as a convicted felon. During closing, the defendant attempted to argue that the evidence did not show that defendant possessed a gun, the state objected, and the court sustained. Held: In the first part of the trial, the jury found defendant possessed a gun, and the defense cannot argue against that finding in the second part of the bifurcated trial. // (But see dissent, arguing that because defendant was acquitted of robbery, the finding that he possessed a gun was irrelevant.) // (See this case for discussion of the effect of findings in the first part of a trial on the process used in the second part of a bifurcated trial.) // Emory v. S., 46 So. 3d 89 (4th DCA 2010), 35 F.L.W. D2159 (9/29/2010)

Answer 46

Section 790.23(1) creates two crimes, possession of a firearm by a convicted felon, and carrying a concealed weapon by a convicted felon. Where defendant is charged with carrying a concealed weapon by a felon, the court errs in instructing the jury on “possession of a concealed weapon by a convicted felon,” a crime which does not exists. Instructions regarding the definition of possession are irrelevant, because the definition of “possession” is different than the definition of “carrying.” // James v. S., 16 So. 3d 322 (4th DCA 2009), 34 F.L.W. D1886 (9/16/2009)

Answer 47

Under §790.115(2), prohibiting possessing or discharging a weapon or firearm on school property, the term “weapon” is defined in §790.001(13). When the weapon is not one of those listed in the statute, the state must show that it is a “deadly weapon”, which is a weapon likely to produce death or great bodily harm. Where defendant possessed an unloaded BB gun at school, the evidence is insufficient to show that it is a “deadly weapon,” and the court errs in failing to grant a JOA. // J.M.P. v. S., 43 So. 3d 189 (4th DCA 2010), 35 F.L.W. D2072 (9/15/2010)

Answer 48

Defendant may not be convicted of both possession of a firearm by a felon, and possession of ammunition by a felon for the same incident. // Boyd v. S., 17 So. 3d 812 (4th DCA 2009), 34 F.L.W. D1698 (8/19/2009)

Answer 49

A butter knife is not a “weapon” for concealed weapons purposes. // (See this case for discussion of the two categories of weapons.) // Coultas v. S., 955 So. 2d 64 (4th DCA 2007), 32 F.L.W. D886 (4/4/2007)

Answer 50

Carrying a concealed weapon is not a lesser of carrying a concealed firearm, because a firearm is distinguished from a weapon in §790.001. // Crum v. S., ___ So. 3d ___, 36 F.L.W. D504 (4th DCA 3/9/2011)

Answer 51

The definition of “carrying” is narrower than “possession,” and carrying a concealed firearm is not a lesser of possession of firearm on school property. // S. v. D.C., 29 So. 3d 1167 (4th DCA 2010), 35 F.L.W. D505 (3/3/2010)

Answer 52

Defendant cannot be found guilty of possessing a weapon on school property under §790.115(2) for possessing a common pocketknife. // R.H. v. S., ___ So. 3d ___, 36 F.L.W. D604 (4th DCA 3/23/2011)

Answer 53

The private conveyance exception to carrying a concealed firearm does not apply to a gun carried on the person of a person driving a motorcycle. // Doughty v. S., 979 So. 2d 1048 (4th DCA 2008), 33 F.L.W. D799 (3/19/2008)

Answer 54

The lack of a license is not an element the state needs to prove in a charge of carrying a concealed firearm under §790.01(2). A license to carry a concealed weapon is an affirmative defense for the defendant to prove. // Watt v. S., 31 So. 3d 238 (4th DCA 2010), 35 F.L.W. D622 (3/17/2010)

Answer 55

A felon must be in actual possession of a firearm before he can receive a mandatory minimum sentence after being convicted of possession of a firearm by a felon. Where the jury finds him in joint possession, the finding is insufficient to get the mandatory sentence. // Banks v. S., 949 So. 2d 353 (4th DCA 2007), 32 F.L.W. D594 (2/28/2007)

Answer 56

A BB gun can be a deadly weapon for possession of a weapon on school grounds purposes under §790.115(2). However, when the gun is unloaded and no other evidence is presented to show that it had the capacity to inflict death or great bodily harm, the evidence is insufficient to sustain a conviction. // (See this case for discussion of BB guns as deadly weapons.) // K.C. v. S., 49 So. 3d 841 (4th DCA 2010), 35 F.L.W. D2694 (12/8/2010)

Answer 57

Carrying a concealed firearm is not a crime in Florida if one has a permit. Thus, when an LEO received information that a person is carrying a concealed firearm, and has no other information that defendant has committed a crime or is about to commit a crime, the officer cannot perform a Terry stop. // (See this case for discussion and rejection of a “firearm exception” to the Terry requirements for making a reasonable suspicion stop.) // •Regalado v. S., 25 So. 3d 600 (4th DCA 2009), 34 F.L.W. D2571 (12/16/2009)

Answer 58

Defendant was stopped for a traffic offense, and as the officer walked up to the car, defendant placed his hands outside the window and told the officer he had a gun in the car. The unloaded gun was on the front seat under a bouquet of flowers, and he was charged with carrying a concealed firearm. Defendant filed a c(4) motion alleging that the gun was not concealed and the court dismissed. Held: A gun need not be totally hidden to be concealed, and whether the gun is concealed is a question of fact for the jury. The court errs in dismissing. // S. v. Hinkle, 970 So. 2d 433 (4th DCA 2007), 32 F.L.W. D2825 (11/28/2007)

Answer 59

A BB gun is not a firearm but can be a “weapon” as defined in §790.001(13). Whether a BB gun is a deadly weapon is an issue of fact. Where the gun is admitted into evidence, the arresting officer testifies that it contained a gas cartridge and a pellet, and he testified that the gun could put someone’s eye out, the evidence is sufficient to find the child guilty of possessing a weapon on school property under §790.115(2). // J.T. v. S., 47 So. 3d 934 (4th DCA 2010), 35 F.L.W. D2559 (11/17/2010)

Answer 60

Defendant, who was an inactive auxiliary officer for the Fish and Wildlife Commission, is exempt from the concealed carry provisions as set forth in § 790.052(1) and §943.10(8). // Stumpf v. S., 998 So. 2d 1186 (4th DCA 2009), 34 F.L.W. D87 (1/5/2009)

Answer 61

Guns found inside a zippered duffle bag behind the driver’s seat in defendant’s car are “securely encased” under §790.25(5), and defendant's conviction for possessing a concealed firearm is reversed. // Trock v. S., 990 So. 2d 1195 (5th DCA 2008), 33 F.L.W. D2228 (9/19/2008)

Answer 62

LEO at a football game called out to defendant. Defendant knelt down on a platform near the officer, and the officer found a gun. Defendant as charged with possession of a concealed firearm. Held: There was no evidence that the weapon was concealed before the officer found it, and the court errs in refusing to grant a JOA. // Circumstantial proof of concealment will not sustain a conviction when the evidence is not inconsistent with a reasonable hypotheses of innocence. // Adams v. S., 987 So. 2d 1255 (5th DCA 2008), 33 F.L.W. D1986 (8/15/2008)

Answer 63

Defendant cannot be convicted of both possession of a firearm by a felon and possession of ammunition for bullets found in the gun. // Francis v. S., 41 So. 3d 975 (5th DCA 2010), 35 F.L.W. D1704 (7/30/2010)

Answer 64

Defendant may not be convicted of both shooting from a vehicle under §790.15(2) and shooting into a vehicle under §790.19 for the same incident (but see concurring opinion). // Luciano v. S., 983 So. 2d 759 (5th DCA 2008), 33 F.L.W. D1555 (6/13/2008)

Answer 65

A folding knife with a blade 3 inches long with a push-button release that swings the blade into an open position is not a “common pocketknife” and the defendant is properly convicted of furnishing a weapon to a minor. // K.H. v. S., 29 So. 3d 426 (5th DCA 2010), 35 F.L.W. D523 (3/5/2010)

Answer 66

The court errs in failing to give improper exhibition of a firearm as a category 2 lesser of aggravated assault with a firearm when the pleadings include all elements of the lesser and the defense requests it. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)

Answer 67

Section 790.25(3)(n), which states that it is lawful to possess a weapon at home or in the possessor’s place of business, applies to concealed weapons. An employee playing cards after hours at the store where he works it exempt from the concealed weapons provisions, and the court errs in failing to dismiss the charge. // •Brook v. S., 999 So. 2d 1093 (5th DCA 2009), 34 F.L.W. D121 (1/9/2009)

Answer 68

Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)

Answer 69

It is not fundamental error for the court to omit from the instructions the element from first degree murder by drug distribution under §782.04(1)(a)(3) that the defendant is over 18, where there is no dispute that he is over 18 and defendant does not raise the issue. // Pena v. S., 901 So. 2d 781 (Fla. 2005), 30 F.L.W. S122 (2/24/2005)

Answer 70

Defendant was indicted for premeditated first-degree murder in Count I, and kidnapping in Count II. The Count II kidnapping alleged only kidnapping with intent to commit homicide. In Count I, the court instructed on premeditated murder and felony murder with both kidnapping with intent to inflict bodily harm, and kidnapping with intent to facilitate a felony as the underlying felony. The defense did not object. Held: Instructing the jury on kidnapping based on intent to inflict bodily harm as a predicate for Count I felony murder, despite not being charged in Count II, is not fundamental error. // (See this case for extensive discussion of instructions on the underlying felony in a felony murder instruction.) // •Crain v.S., 894 So. 2d 59 (Fla. 2004), 29 F.L.W. S635 (10/28/2004)

Answer 71

Where defendant shoots four victims with a pump-action shotgun, the evidence is sufficient to show premeditation. // Hutchinson v. S., 882 So. 2d 943 (Fla. 2004), 29 F.L.W. S337 (7/1/2004)

Answer 72

(See Pearce v. S., 880 So. 2d 561 (Fla. 2004), 29 F.L.W. S330 (7/1/2004) for discussion of the sufficiency of premeditation evidence.)

Answer 73

Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. Because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)

Answer 74

(See •Conde v. S., ___ So. 2d ___, 28 F.L.W. S669 (Fla. 9/4/2003) for discussion of the admissibility of other murders in the trial of an accused serial murderer.)

Answer 75

Where the victim was tied to a tree and strangled, and Williams rule evidence shows that defendant committed a similar crime with another victim who did not die, the circumstantial evidence is sufficient to show premeditation. // Conahan v. S., 844 So. 2d 629 (Fla. 2003), 28 F.L.W. S366 (4/24/2003)

Answer 76

When the jury is instructed on both felony and premeditated murder, and the court errs in denying a JOA on the felony murder theory but there is sufficient evidence to sustain a premeditated murder theory, the conviction will not be overturned. // The state can proceed on a felony murder theory based on an indictment that charges only premeditated murder. Where there is no discussion of felony murder, and the state raises it only during the charge conference, no error is shown. // Anderson v. S., 841 So. 2d 390 (Fla. 2003), 28 F.L.W. S51 (1/16/2003)

Answer 77

The defendant’s predetermined choice of a weapon can be a key factor in determining whether he acted with premeditation. Where the defendant selected a gun and drove to the victim’s house with it, such evidence is sufficient to withstand a motion for JOA regarding premeditation. // (See this case for extensive discussion of the sufficiency of evidence relating to premeditation.) // Floyd v. S., 850 So. 2d 383 (Fla. 2002), 27 F.L.W. S697 (8/22/2002)

Answer 78

Where the victim suffers two knife wounds to the neck, one a slash and the other a stab that penetrated most of the way through the neck, the evidence sufficiently shows an intent to kill from which the jury can infer premeditation, and the court does not err in refusing a JOA. // Morrison v. S., 818 So. 2d 432 (Fla. 2002), 27 F.L.W. S253 (3/21/2002)

Answer 79

Where the evidence shows that the defendant sexually battered the victim, and that she was then killed by a gunshot to the head with an attempt to muffle the gun with a pillow, the evidence is sufficient to sustain a finding of premeditation. // Darling v. S., 808 So. 2d 145 (Fla. 2002), 27 F.L.W. S41 (1/3/2002)

Answer 80

Where one victim is stabbed 23 times and another is stabbed 16 times, the evidence is sufficient to support premeditation (but see dissent). // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)

Answer 81

Aggravated assault is not a lesser of attempted 1st degree murder when the information does not charge that the victims were placed in fear. // McClenithan v. S., 855 So. 2d 675 (2d DCA 2003), 28 F.L.W. D2234 (9/26/2003)

Answer 82

Defendant testified that he accidentally shot the victim, who was his friend. There was no evidence of a fight and no evidence of a motive to kill the victim. There was some circumstantial evidence to show the killing was intentional, but the evidence was not inconsistent with defendant’s testimony. Held: Court errs in refusing JOA on first-degree murder. The circumstantial evidence is not inconsistent with defendant’s reasonable hypothesis of innocence. The first-degree murder conviction is reduced to manslaughter. // Tillman v. S., 842 So. 2d 922 (2d DCA 2003), 28 F.L.W. D706 (3/12/2003)

Answer 83

The court errs in an attempted first degree murder trial in failing to read the excusable and justifiable homicide instructions. The failure to read the instruction is permitted only when counsel affirmatively requests that it not be read. // Pignataro v. S., 834 So. 2d 965 (2d DCA 2003), 28 F.L.W. D308 (1/24/2003)

Answer 84

First degree murder by drug distribution under § 782.04(3) requires that the defendant be over 18 years of age. Where the information does not allege that the defendant is over that age, and evidence is presented to the jury that would show he is over that age, there is no fundamental error. The failure to allege the defendant’s age must be raised by motion prior to trial. // Failure to instruct on the defendant’s age is not fundamental error where it is undisputed that the defendant was over 18. // No error occurs when the court fails to instruct on excusable and justifiable homicide in a case of first degree murder by drug distribution (question certified). // •Pena v. S., 829 So. 2d 289 (2d DCA 2002), 27 F.L.W. D1542 (7/3/2002)

Answer 85

The provision requiring life without parole for first-degree murder applies to crimes committed after May 25, 1994. // Negron v. S., 932 So. 2d 1250 (3d DCA 2006), 31 F.L.W. D1882 (7/12/2006)

Answer 86

Defendant may not be convicted of both attempted felony murder and attempted first degree murder for a single act involving a single victim. // McGlocklin v. S., 907 So. 2d 1288 (3d DCA 2005), 30 F.L.W. D1919 (8/10/2005)

Answer 87

Defendant admitted to helping plan the robbery but denied participating in it. During the robbery, the owner of the store verbally resisting and was killed. Held: Defendant is not entitled to an independent act instruction. A killing in the face of resistance by a victim of a robbery is within the criminal design of the robbery, and defendant is properly convicted of murder. // Jones v. S., 804 So. 2d 551 (3d DCA 2002), 27 F.L.W. D183 (1/16/2002)

Answer 88

When defendant is involved in a robbery from the beginning, he is responsible for the death of the victim regardless of whether he intended that a codefendant shoot the victim. He is not entitled to an independent act instruction when he is fully involved in the robbery that culminated in the shooting of the victim. To get an independent act instruction, the killing must be independent of the robbery. // Washington v. S., 873 So. 2d 1268 (4th DCA 2004), 29 F.L.W. D1316 (6/2/2004)

Answer 89

Defendant may not be convicted of attempt felony murder when the only underlying felony is attempted first-degree murder. Conviction of both attempted felony murder and attempted first-degree murder violates double jeopardy. // Tucker v. S., 857 So. 2d 978 (4th DCA 2003), 28 F.L.W. D2484 (10/29/2003)

Answer 90

In a first-degree felony murder case, the defendant is entitled to an instruction stating that there is no robbery if the victim’s property was taken after the murder. The failure to give that requested instruction gets reversal in a case where the evidence would support either premeditate or felony murder. // •Perkins v. S., 814 So. 2d 1177 (4th DCA 2002), 27 F.L.W. D882 (4/17/2002)

Answer 91

Where the defendant chases the victim with his car and tries to run her over, he chases her into the woods, and then stabs her 51 times, the evidence is sufficient to go to the jury on the issue of premeditation. // Arnold v. S., 892 So. 2d 1172 (5th DCA 2005), 30 F.L.W. D345 (2/4/2005)

Answer 92

(See St. Nattis v. S., 827 So. 2d 320 (5th DCA 2002), 27 F.L.W. D2051 (9/13/2002) (Harris, J., concurring) for the request that the Florida Supreme Court review Florida’s rule regarding conviction for first-degree murder under either a premeditation theory or felony murder theory, without unanimity on either theory.)

Answer 93

Where defendant was jealous of the victim’s new boyfriend, there were prior troubles between the defendant and the boyfriend, the defendant was with the victim making threats for several minutes before the shooting, and the victim was shot four times, the circumstantial evidence of premeditation is sufficient to go to the jury. // Skanes v. S., 821 So. 2d 1102 (5th DCA 2002), 27 F.L.W. D1352 (6/7/2002)

Answer 94

A indictment that cites the first-degree murder statute and alleges that defendant feloniously and intentionally killed the victim, but does not specify whether the killing was done from a premeditated design or was done in the course of another felony, is sufficient to sustain a first-degree murder conviction when the defense does not raise the objection before trial. // •Deparvine v. S., 995 So. 2d 351 (Fla. 2008), 33 F.L.W. S784 (9/29/2008)

Answer 95

Evidence that the victim died by strangulation, and that the defendant and victim had sex around the time she dies, is insufficient to sustain a finding of premeditation. // (See this case for extensive discussion of premeditation.) // Bigham v. S., 995 So. 2d 207 (Fla. 2008), 33 F.L.W. S527 (7/10/2008)

Answer 96

The court properly denies a JOA on first degree felony murder when the victim of the sexual battery dies as a result of the criminal episode, even though the death occurs weeks after the crime. // The jury need not be instructed that their verdict must be unanimous regarding the theory of the case. Thus, when the jury is instructed on both felony and premeditated murder, there is no error in failing to instruct that they must be unanimous in choosing the theory. // (See this case for discussion of premeditation in a case where the victim dies weeks after a knife attack.) // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)

Answer 97

Defendant’s convictions for both felony murder and the lesser included misdemeanor of the separately charged underlying felony are truly inconsistent verdicts. // Where the jury finds defendant guilty of felony murder, but finds the defendant guilty of petit theft as a lesser of armed robbery, the felony murder verdict is legally inconsistent and must be vacated. // Truly inconsistent verdicts occur when the charged crimes legally interlock. Crimes are interlocking when an acquittal on one count negates a necessary element for the conviction on another count. // Brown v. S., 959 So. 2d 218 (Fla. 2007), 32 F.L.W. S322 (6/14/2007)

Answer 98

(See Walker v. S., 957 So. 2d 560 (Fla. 2007), 32 F.L.W. S201 (5/3/2007) for discussion of the use of circumstantial evidence to prove premeditation in a case where defendant admits to shooting the victim but claims he did not intend to kill.)

Answer 99

Where defendant took the victim to get drugs, he got her to a secluded location, and he manually strangled her during or after sex, the court properly denies a JOA on premeditation grounds. The evidence is sufficient to go to the jury on the issue whether the killing was premeditated. // McWatters v. S., 36 So. 3d 613 (Fla. 2010), 35 F.L.W. S169 (3/18/2010)

Answer 100

When defendant is charged with first-degree murder felony murder with trafficking in cocaine as the underlying felony, and the court on appeal determines that the evidence was insufficient to show that the weight of the cocaine was over 28 grams, the first-degree murder conviction is reversed and remanded and the trial court is required to direct a verdict for third-degree murder. // Hernandez v. S., ___ So. 3d ___, 35 F.L.W. S714 (Fla. 12/8/2010) // reversing in part Hernandez v. S., 994 So. 2d 488 (3d DCA 2008)

Answer 101

When defendant has a premeditated intent to kill one person, and he ends up killing a second person, the premeditation can be transferred to convert the killing of the second victim into first degree murder. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)

Answer 102

Evidence that defendant had talked about killing the victim several months before the killing took place, and on the day of the killing defendant bought duct tape, a gas can, and gasoline which he used in the killing, is sufficient to allow the court to deny a JOA on premeditation grounds. // Abdool v. S., 53 So. 3d 208 (Fla. 2010), 35 F.L.W. S571 (10/7/2010)

Answer 103

Where evidence of guilt is wholly circumstantial, the evidence must not only be sufficient to establish every element of the crime, but also it must be inconsistent with an reasonable hypothesis of innocence proposed by the defendant. The issue of inconsistency is for the jury to decide, and the verdict with be sustained on appeal if supported by competent, substantial evidence. // Circumstantial evidence of premeditation is sufficient to sustain a finding of guilt for first-degree murder when the victim was shot in the back at a downward angle, he was shot close to the time defendant was seen digging a hole in the victim’s yard, in which his body was found; a large amount of money was missing; and defendant made several large purchases with cash soon after the crime. // Twilegar v. S., 42 So. 3d 177 (Fla. 2010), 35 F.L.W. S13 (1/7/2010)

Answer 104

When a single act of child abuse (here, a single blow to the child) causes the child’s death, the act of child abuse is merged with the homicide. Because it merges with the homicide, it cannot serve as the predicate felony for felony murder. Thus, when defendant commits a single act of child abuse resulting in the death of a child, unless the state can prove premeditated murder the defendant cannot be convicted of first-degree murder (question certified). // (But see dissent for extensive discussion of the rule of Brooks v. S., 918 so. 2d 181 (Fla. 2005) and its application.) // •Sturdivant v. S., ___ So. 3d ___, 35 F.L.W. D1993 (1st DCA 9/7/2010) // see Brooks v. S., 918 So. 2d 181 (Fla. 2005); Lewis v. S., 34 So. 2d 183 (1st DCA 2010)

Answer 105

When defendant is charged with attempted first-degree murder by shooting at and injuring the victim, the court errs in refusing to instruct on aggravated battery and battery as lessers. // Anderson v. S., ___ So. 3d ___, 36 F.L.W. D692 (1st DCA 3/31/2011)

Answer 106

A sentence of life in prison without the possibility of parole imposed on a person who committed the crime while a juvenile does not violate the federal or state prohibitions against cruel and unusual punishment. // Gonzalez v. S., 50 So. 3d 633 (1st DCA 2010), 35 F.L.W. D2472 (11/5/2010)

Answer 107

The merger doctrine does not prevent a conviction for both first-degree murder and aggravated child abuse when a single act of abuse resulted in the death of the victim // Lim v. S., 50 So. 3d 34 (1st DCA 2010), 35 F.L.W. D2526 (11/17/2010) // contra, Sturdivant v. S., 35 F.L.W. D1993 (1st DCA 9/7/10)

Answer 108

When an attempted first-degree murder conviction could have been based on attempted felony murder, which crime was held nonexistent in S. v. Gray, 654 So. 2d 552 (Fla. 1995), defendant is entitled to a new trial. // Clark v. S., 946 So. 2d 110 (1st DCA 2007), 32 F.L.W. D190 (1/5/2007)

Answer 109

When death is caused by more than one hold around the victim’s neck and there were multiple applications of strangling force applied to the neck, more than one instance of abuse occurs and there is no merger between the aggravated child abuse and felony murder, and defendant may be convicted of both crimes. // Even where the murder is committed by a single act of abuse, defendant is properly convicted of both aggravated child abuse and murder. // Rosa v. S., ___ So. 3d ___, 36 F.L.W. D482 (2d DCA 3/2/2011)

Answer 110

Defendant shot at victim #1 and hit victim #2, killing her. He was charged with attempted first degree murder of victim #1, and first-degree felony murder of victim #2, with the attempted murder of victim #1 as the predicate felony. Defendant was convicted of attempted second-degree murder of victim #1 and first-degree murder of victim #2. Held: Under the circumstances of this case, no double jeopardy violation occurs. // Brinson v. S., 18 So. 3d 1075 (2d DCA 2009), 34 F.L.W. D282 (2/4/2009)

Answer 111

Defendant was charged with the strangulation murder of a prostitute, occurring during an incident involving sex with her in a motel room. Defendant argued that the evidence at best showed 2d degree murder and the state filed to show premeditation. Held: While evidence of strangulation standing alone is insufficient to prove premeditation, strangulation plus evidence of repositioning the cord and evidence of a struggle between the defendant and victim is sufficient to overcome a motion for JOA. // Berube v. S., 5 So. 3d 734 (2d DCA 2009), 34 F.L.W. D436 (2/25/2009)

Answer 112

The court properly imposes a life sentence on a 15-year old convicted of being the wheelman in a robbery in which a co-perpetrator killed the victim. // Arrington v. S., ___ So. 3d ___, 35 F.L.W. D327 (2d DCA 2/19/2010)

Answer 113

When the state presents both a felony murder and premeditated theory of the case, and the jury returns a general verdict of guilty, and the evidence is insufficient to sustain a finding of guilt on the predicate felony, the conviction for 1st degree murder will be upheld where there is sufficient evidence to sustain a conviction for premeditated murder. // Bell v. S., 27 So. 3d 209 (2d DCA 2010), 35 F.L.W. D323 (2/10/2010)

Answer 114

A sentence of life in prison for a 14-year old convicted of first-degree murder does not violate cruel and unusual provisions of the constitution. // Culpepper v. S., 971 So. 2d 259 (2d DCA 2008), 33 F.L.W. D164 (1/4/2008)

Answer 115

Attempted first degree murder is an F1 with a maximum 30-year sentence. // Pettigrew v. S., 19 So. 3d 428 (3d DCA 2009), 34 F.L.W. D1930 (9/23/2009)

Answer 116

Defendant was charged by indictment with first-degree felony murder and other charges. He filed a demand for speedy trial, and jury selection began with a few days remaining in the demand period. The state asked to continue to obtain a new indictment that charged premeditated murder, which the court allowed. Trial started a few days later, after speedy trial had run, on a new indictment. Held: The new indictment alleging premeditated and felony murder was not sufficient changed that it constituted new charge filed after the speedy trial period had run, and the convictions are affirmed. // When the court modifies the standard instruction to state as an element “The defendant or another person acting as a principal,” defendant could be convicted based on the acts of another person and fundamental error occurs. // Brown v. S., 967 So. 2d 236 (3d DCA 2007), 32 F.L.W. D1941 (8/15/2007)

Answer 117

Defendant snatched the purse belonging to a person with the victim. Defendant fled the scene in a car driven by another person, and the victim attempted to stop the car by grabbing the passenger door handle. He held on for a while, and ultimately released the car and died from injuries sustained while being dragged. Held: Under the 1987 amendments to the robbery statute, defendant’s acts in fleeing while the victim was holding onto the car are part of the robbery, and the victim's death thus occurs in the course of the robbery for felony murder purposes. // Thomas v. S., 36 So. 3d 853 (3d DCA 2010), 35 F.L.W. D1244 (6/2/2010)

Answer 118

Attempted first-degree murder with a firearm is a life felony, and the maximum term of years is 40 years, or life. The court errs in imposing 60 years. // Jordan v. S., 28 So. 3d 929 (3d DCA 2010), 35 F.L.W. D357 (2/10/2010)

Answer 119

The state is not required to inform defendant whether it is proceeding on a premeditated murder theory or felony murder theory. // Leyva v. S., 972 So. 2d 1056 (3d DCA 2008), 33 F.L.W. D305 (1/23/2008)

Answer 120

Where the evidence show that the defendant stalked the victim and called her repeatedly the day of the crime, and then shot her several times, the court properly denies a JOA on premeditation. The evidence is sufficient to allow the jury to determine that the murder was premeditated. // Garcia v. S., 41 So. 3d 1072 (4th DCA 2010), 35 F.L.W. D1830 (8/11/2010)

Answer 121

Where the evidence showed that another person attacked the victim with the defendant's knowledge, and the defendant ultimately killed the victim by strangling her, the evidence is sufficient to establish premeditation for 1st degree murder purposes. // Carranza v. S., 985 So. 2d 1199 (4th DCA 2008), 33 F.L.W. D1726 (7/9/2008)

Answer 122

When the defendant stabs the victim in the back, and stabs him several time when he turns around, the evidence is sufficient to support a determination of premeditation. // (See this case for discussion of premeditation is the case of drunks engaging in sudden combat.) // McJimsey v. S., 959 So. 2d 1257 (4th DCA 2007), 32 F.L.W. D1644 (7/5/2007)

Answer 123

When the state presents evidence that defendant had threatened to kill the victim in the recent past and the victim’s gunshot wounds are consistent with a close-contact fight, the circumstantial evidence of premeditation is sufficient to sustain a conviction. // Fennell v. S., 959 So. 2d 810 (4th DCA 2007), 32 F.L.W. D1645 (7/5/2007)

Answer 124

Where defendant intentionally cocked a rifle and aimed it at the victim, the evidence is sufficient to show premeditation (See this case for discussion of and citation to premeditation cases.). // Jones v. S., 36 So. 3d 903 (4th DCA 2010), 35 F.L.W. D1286 (6/9/2010)

Answer 125

Evidence that defendant and codefendant, although originally attacked by the victim, beat him repeatedly while helpless on the floor, is sufficient to show premeditation for first-degree murder purposes. // Rolls v. S., 12 So. 3d 816 (4th DCA 2009), 34 F.L.W. D1005 (5/20/2009)

Answer 126

Where the evidence shows that defendant asked a witness for a gun, and a few minutes returned, he was sweating, breathing hard, and acting nervous, and he said that he had shot a person accidentally, he had property of the victim in his possession, and his fingerprints are found inside the victim’s car, the evidence is insufficient to show premeditation but is sufficient to sustain a first degree murder conviction based on felony murder with robbery as the predicate. // Graham v. S., ___ So. 3d ___, 36 F.L.W. D502 (4th DCA 3/9/2011)

Answer 127

When an indictment charges only felony first-degree murder, the court properly instructs the jury on both felony murder and premeditated murder. // Defendant is properly convicted of both first-degree murder and leaving the scene of an accident involving death. // Stanley v. S., ___ So. 3d ___, 36 F.L.W. D659 (4th DCA 3/30/2011)

Answer 128

LEO was shot at a building after he was thrown out of a bar, and about an hour later he shot another man at a different bar. The police chased him, but he escaped. While staking out his house, the defendant drove by about 46 minutes after the second shooting, and while speeding through a red light he hit a car, killing two. He was charged with 1st degree felony murder for those deaths, alleging he was escaping from the attempted murder scene. Held: The evidence is sufficient to show an unbroken chain of event from the shooting to the accident scene, and the felony murder convictions are affirmed. Because defendant took evasive maneuvers to escape the scene of the shooting, and then sped past his own house, there is a sufficient connection to show that the killing occurred while seeking to escape from the shooting. // •Baines v. S., 25 So. 3d 1277 (4th DCA 2010), 35 F.L.W. D237 (1/27/2010)

Answer 129

Methadone is not a synthetic opium as that term is used in §782.04(1)(a)3, relating to first-degree murder by distribution of drugs. // S. v. McCartney, 1 So. 3d 326 (4th DCA 2009), 34 F.L.W. D187 (1/21/2009)

Answer 130

Because of the length of time it takes to strangle a person to death, that circumstance is sufficient to create a jury question regarding whether the killing was premeditated. // Perez-Ortiz v. S., 954 So. 2d 1256 (5th DCA 2007), 32 F.L.W. D1099 (4/27/2007)

Answer 131

Heat of passion is a valid defense to 2d degree murder because it negates the depraved mind element. // Heat of passion as a defense to 2d degree murder is different than excusable homicide. Under Florida law, if the jury believes that defendant’s passion resulted in a state of mind where the depravity which characterizes 2d degree murder is absent, he is not guilty of 2d degree murder. // •Palmore v. S., 838 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D671 (3/7/2003)

Answer 132

Aggravated manslaughter of a child is not a lesser of 2d degree murder. Where the victim is a child, but the state does not allege the age of the victim in the information charging 2d degree murder, the court reversibly errs in giving aggravated manslaughter as a lesser of 2d degree murder. // Hankerson v. S., 831 So. 2d 235 (1st DCA 2002), 27 F.L.W. D2353 (10/30/2002)

Answer 133

Attempted aggravated battery is a permissive lesser of attempted 2d degree murder of an LEO, and the court errs in refusing to give the instruction. // Blandin v. S., 916 So. 2d 969 (2d DCA 2005), 30 F.L.W. D2813 (12/14/2005)

Answer 134

(See Rayl v. S., ___ So. 2d ___, 29 F.L.W. D2099 (2d DCA 9/17/2004) for discussion of when manslaughter is a lesser of 2d degree murder.)

Answer 135

The failure to instruct on excusable and justifiable homicide in an attempted 2d degree murder case is fundamental error. The failure of appellate counsel to raise the issue is ineffective assistance of counsel. // Guardiola v. S., 884 So. 2d 140 (2d DCA 2004), 29 F.L.W. D1650 (7/16/2004)

Answer 136

The intoxicated victim bumped into the defendant in a mosh pit at a bar. The defendant picked up the victim and slammed him to the ground, causing injured that resulted in death. Held: The evidence is insufficient to show that defendant acted with sufficient ill will, hatred, spite, or evil intent for 2d degree murder. // (See this case for discussion of the sufficiency of evidence to show the intent element of 2d degree murder.) // •Light v. S., 841 So. 2d 623 (2d DCA 2003), 28 F.L.W. D883 (4/4/2003)

Answer 137

Attempted aggravated battery with a firearm is a lesser of attempted 2d degree murder with a firearm, despite the fact that both carry a mandatory minimum 20 year sentence. // An allegation in the information that defendant discharged a firearm is a sufficient allegation of the use of a deadly weapon to permit the giving of attempted aggravated battery as a lesser. // Washington v. S., 912 So. 2d 344 (3d DCA 2005), 30 F.L.W. D2353 (10/5/2005)

Answer 138

Section 775.082(3)(a) was amended to state that for a life felony committed on or after 7/1/95, the defendant may be sentenced to life or to a term of years not exceeding life. The amending law, however, was session law 95-184, which was found unconstitutional in Heggs. Thus, for a 2d degree murder occurring on December 27, 1995, the maximum term of years was 40, and a sentence of 50 years is unlawful. // Rolle v. S., 830 So. 2d 239 (3d DCA 2002), 27 F.L.W. D2438 (11/13/2002)

Answer 139

The crime of solicitation to commit second degree murder does not exist in Florida. Where defendant is charged with solicitation to commit first degree murder, he cannot be convicted of solicitation to commit 2d degree murder as a lesser. // •Jones v. S., 908 So. 2d 615 (4th DCA 2005), 30 F.L.W. D2002 (8/24/2005)

Answer 140

Pointing a loaded gun at the victim and pulling the trigger is an act imminently dangerous to another and evincing a depraved mind regardless of human life. Where the evidence shows defendant intended to point the gun at the victim, the evidence is sufficient to sustain 2d degree murder. // Gibbs v. S., 904 So. 2d 432 (4th DCA 2005), 30 F.L.W. D530 (2/23/2005)

Answer 141

The victim’s failure to testify that the defendant shot a gun at him precludes a conviction for attempted 2d degree murder. // (See this case for citations to cases in which the state was able to prove murder or attempted murder without the victim’s testimony.) // Johnson v. S., 888 So. 2d 691 (4th DCA 2004), 29 F.L.W. D2602 (11/17/2004)

Answer 142

Aggravated battery with a firearm is the same degree of crime as attempted second degree murder with a firearm, and so aggravated battery with a firearm is not a lesser of attempted murder. The court errs in giving the aggravated battery charge. // Franklin v. S., 877 So. 2d 19 (4th DCA 2004), 29 F.L.W. D1211 (5/19/2004)

Answer 143

Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he helped his co-defendant escape from prison, and the next day while driving the police tried to stop him. He fled and after a short chase, defendant ran a stop sign resulting in an accident that killed the other driver. He objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. The evidence is sufficient to sustain 3d degree felony murder conviction, and the conviction is reduced to that charge. // •Michelson v. S., 805 So. 2d 983 (4th DCA 2001), 26 F.L.W. D2878 (12/5/2001)

Answer 144

Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)

Answer 145

Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)

Answer 146

Court commits fundamental error by failing to read justifiable and excusable homicide instructions during a 2d degree murder trial. // Burgess v. S., 830 So. 2d 950 (5th DCA 2002), 27 F.L.W. D2542 (11/22/2002)

Answer 147

Defendant may not be convicted of both attempted second degree murder and attempted 1st degree felony murder for shooting one victim (question certified). // Mitchell v. S., 830 So. 2d 944 (5th DCA 2002), 27 F.L.W. D2543 (11/22/2002)

Answer 148

Aggravated assault is a category 2 lesser of attempted 2d degree murder. If the information does not allege the elements of aggravated assault, it should not be given as a lesser. // When the defense requests aggravated assault as a lesser, any error in giving the instruction is waived (conflict certified). // (See this case, Harris, J., concurring, for extensive discussion of when a person may be convicted of an offense not charged in an information.) // •Nesbitt v. S., 819 So. 2d 993 (5th DCA 2002), 27 F.L.W. D1496 (6/28/2002) // contra, Levesque v. S., 778 So. 2d 1049 (4th DCA 2001); Mateo v. S., 757 So. 2d 1229 (2d DCA 2000)

Answer 149

Court errs in denying a JOA in a 3d degree murder charged based on a traffic accident resulting in death caused by defendant driving a stolen car. The death did not occur in the course of the theft, which had been completed many hours prior to the accident. // House v. S., 831 So. 2d 1230 (2d DCA 2002), 27 F.L.W. D2640 (12/11/2002)

Answer 150

An erroneous instruction on manslaughter by act as a lesser of second degree murder is not fundamentally erroneous when defendant is convicted of murder and the jury was instructed on both manslaughter by act and manslaughter by culpable negligence. // Barros-Dias v. S., 41 So. 3d 370 (2d DCA 2010), 35 F.L.W. D1667 (7/28/2010)

Answer 151

Defendant may not be convicted of both second degree murder and vehicular homicide when a traffic crash he caused resulted in one death. // Defendant fled from the police who were trying to stop him for a traffic infraction, and he drove the wrong way on an interstate, killing another driver. Held: The evidence is insufficient to show hatred, spite, or ill-will. Extremely reckless behavior is insufficient to infer any malice, and counsel was ineffective in failing to move for a JOA on a 2d degree murder charge. // Hicks v. S., 41 So. 3d 327 (2d DCA 2010), 35 F.L.W. D1590 (7/16/2010)

Answer 152

Second degree murder is a first degree felony punishable by life. When second degree murder is committed with a firearm, it is reclassified to a life felony, which is punishable by a term of years up to forty, or life. A sentence of thirty years followed by life probation is a lawful sentence. // Robinson v. S., 37 So. 3d 921 (2d DCA 2010), 35 F.L.W. D1261 (6/4/2010)

Answer 153

Defendant stabbed his friend when the friend lunged at a third person inside a small RV. The single stab killed him. He was charged with first-degree murder and convicted of second. Held: The evidence is insufficient to show ill will, hatred, or spite. However, the jury could have rejected defendant’s self-defense defense, and the case is remanded for resentencing for manslaughter. // Poole v. S., 30 So. 3d 696 (2d DCA 2010), 35 F.L.W. D697 (3/26/2010)

Answer 154

Where defendant and the victim, who did not know each other, engaged in a bar fight, and the evidence shows that the defendant’s actions were possibly an impulsive overreaction to an attack or injury, such acts do not show ill will, hatred, spite, or evil intent sufficient to sustain a 2d degree murder conviction. // Bellamy v. S., 977 So. 2d 682 (2d DCA 2008), 33 F.L.W. D634 (2/29/2008)

Answer 155

The act of driving a butcher knife five inches into the victim’s chest, causing his death, is sufficient to show the “depraved mind” element of second-degree murder. // Bonilla v. S., 19 So. 3d 431 (3d DCA 2009), 34 F.L.W. D1926 (9/23/2009)

Answer 156

The court errs in granting a c(4) motion reducing a charge from 2d degree murder to manslaughter. Whether the defendant had the required state of mind is not an issue to be determined in a c(4) motion. // S. v. Yaqubie, 51 So. 3d 474 (3d DCA 2010), 35 F.L.W. D1342 (6/16/2010) // See Peterson v. S., 983 So. 2d 27 (1st DCA 2008); Horn v. S., 17 So. 3d 836 (2d DCA 2009); Gray v. S., 13 So. 3d 114 (5th DCA 2009) // contra, Velasquez v. S., 9 So. 3d 22 (4th DCA 2009)

Answer 157

Photographic evidence of the victim’s skull, showing three gunshot wounds to the face, is admissible to show that the killing was not accidental but was committed with malice, and the court does not err in admitting the photos. // When the jury is instructed on both manslaughter by culpable negligence and manslaughter by act as lessers of 2d degree murder, the error in giving the flawed manslaughter by act instruction is not fundamental. // Moore v. S., ___ So. 3d ___, 36 F.L.W. D512 (3d DCA 3/9/2011)

Answer 158

The victim was shot by the defendant when the occupants of the cars in which each were riding started arguing between the cars, and defendant shot into the victim’s car, killing the victim. Earlier in the evening, a witness said that defendant had said that he wanted to “shoot someone’s head off.” Held: Admission of the evidence goes to defendant’s state of mind, which is relevant in a second degree murder charge. // Lumsdon v. S., 29 So. 3d 390 (3d DCA 2010), 35 F.L.W. D514 (3/3/2010)

Answer 159

The act of striking a person with a loaded gun, resulting in the gun discharging and killing the victim, constitutes second degree murder. // Aguilera v. S., 975 So. 2d 1270 (3d DCA 2008), 33 F.L.W. D723 (3/12/2008)

Answer 160

The victim got into an argument with his former girlfriend in the parking lot of a bar. She made a phone call, and a car driven by defendant arrived. Several people got out with guns, and one of them shot and killed the victim, and defendant drove him away from the scene. Held: The evidence is sufficient to convict defendant of 2d degree murder. // Francis v. S., 29 So. 3d 1145 (3d DCA 2009), 35 F.L.W. D19 (12/23/2009)

Answer 161

(See Barnes v. S., 993 So. 2d 542 (3d DCA 2008), 33 F.L.W. D311 (1/23/2008) for discussion of when sufficient evidence is presented to sustain a second-degree murder conviction based on a fight between defendant and the victim.)

Answer 162

Attempted 2d degree murder with a firearm is a first degree felony. If defendant causes great bodily harm, the mandatory sentence range is 25 years to life. The maximum penalty for a first degree felony is 30 years. The 10-20-Life law does not create a a new statutory maximum of life, and the court errs in imposing 50 years with a 25-year mandatory. // Wooden v. S., 42 So. 3d 837 (5th DCA 2010), 35 F.L.W. D1641 (7/23/2010)

Answer 163

Attempted 2d degree murder with a firearm is a 1st degree felony with a maximum penalty of 30 years, and the court errs in imposing 35 year in prison followed by 10 years of probation. // Brown v. S., 983 So. 2d 706 (5th DCA 2008), 33 F.L.W. D1476 (6/6/2008)

Answer 164

Attempted second degree murder is a second degree felony. The charge is properly reclassified to a first degree felony when defendant uses a knife during the commission of the crime. // Williams v. S., 29 So. 3d 327 (5th DCA 2010), 35 F.L.W. D166 (1/15/2010)

Answer 165

Third degree murder is not a necessarily included lesser offense of first-degree murder, and the court does not err in refusing to give the instruction when it is not supported by the evidence. // Jimenez v. S., 703 So. 2d 437 (Fla. 1997), 22 F.L.W. S685 (10/30/97)

Answer 166

Defendant, a pregnant teenager, shot herself in an attempt to kill the fetus. The baby died fifteen days after the shooting as a result of the premature birth. The state charged the mother with third-degree murder with criminal abortion as the underlying felony, and with manslaughter in the alternative. Held: A pregnant woman is immune under common law from a criminal charge in causing the death of her unborn child. // •S. v. Ashley, 701 So. 2d 338 (Fla. 1997), 22 F.L.W. S682 (10/30/97) // approving and reversing in part State v. Ashley, 670 So. 2d 1087 (Fla. 2d DCA 1996)

Answer 167

When the underlying felony for 3d degree murder is aggravated assault with a firearm, the court errs in reclassifying the crime because the use of the firearm was an essential element of the crime. // Collazo v. S., 936 So. 2d 782 (4th DCA 2006), 31 F.L.W. D2301 (9/6/2006)

Answer 168

Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he escaped from prison with the help of his codefendant, and the next day while the codefendant was driving the police tried to stop them. They fled and after a short chase, codefendant ran a stop sign resulting in an accident that killed the other driver. Defendant objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. // The evidence is sufficient to sustain 3d degree felony murder conviction with harboring an escaped prisoner as the predicate, and the conviction is reduced to that charge. Defendant, as the escaped prisoner, can be a principal to the crime of harboring an escaped prisoner when he allows another person to harbor him. The evidence showed that defendant participated in concocting an elaborate plan for an escape, and then worked with his codefendant to conceal himself. Defendant is properly found to be a principal. // Sigler v. S., 805 So. 2d 32 (4th DCA 2001), 26 F.L.W. D2880 (12/5/2001)

Answer 169

When the defense requests 3d degree murder as a lesser of 1st degree murder, with aggravated battery of a pregnant person as the predicate offense, the defense is precluded from arguing on appeal that the court erred in admitting evidence that the victim was pregnant. // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)

Answer 170

Defendant was charged with first-degree murder occurring during the course of a robbery. The jury was instructed on third-degree murder as a lesser, and he was convicted of robbery and third degree murder. Held: Because third degree murder requires as a predicate the commission of a crime other than the 18 listed offense, of which robbery is one, he cannot be convicted of third degree murder with robbery as the predicate. Thus, he was convicted of a nonexistent crime, and conviction is reversed. // Moore v. S., 983 So. 2d 691 (1st DCA 2008), 33 F.L.W. D1473 (6/5/2008)

Answer 171

When defendant is convicted of 3d degree murder with a firearm, the crime is a second-degree felony. The court cannot impose a sentence longer than 25 years under the 10-20-Life law. // Collazo v. S., 966 So. 2d 429 (4th DCA 2007), 32 F.L.W. D2124 (9/5/2007)

Answer 172

Multiple deaths in a single accident will support multiple convictions for DUI manslaughter. // (See this case for extensive discussion of the statutory construction “a / any” rule from Grappin v. S., 450 So. 2d 480 (Fla. 1984).) // Bautista v. S., 863 So. 2d 1180 (Fla. 2003), 28 F.L.W. S849 (12/4/2003)

Answer 173

The court does not err in giving a jury instruction that required the jury to find that defendant “contributed to the cause” of the accident. // Smallridge v. S., 904 So. 2d 601 (1st DCA 2005), 30 F.L.W. D1540 (6/20/2005)

Answer 174

Defendant cannot be adjudicated guilty of both vehicular homicide and DUI manslaughter when the accident causes a single death. // Leveritt v. S., 817 So. 2d 891 (1st DCA 2002), 27 F.L.W. D1122 (5/7/2002)

Answer 175

The creation in 1996 of DUI manslaughter with failure to provide information and render aid, a 1st degree felony, was not affected by the invalidation of the 1995 guidelines in Heggs. The new crime was designated a level 9 felony, and the designation was lawful. The court errs in refusing to score the crime as a level 9 offense in a Heggs resentencing. // Gill v. S., 886 So. 2d 988 (2d DCA 2004), 29 F.L.W. D2154 (9/24/2004)

Answer 176

Defendant may not be adjudicated guilty of, or sentenced for, both DUI manslaughter and 3d degree murder for causing a single death. // (See this case for extensive discussion of double jeopardy considerations in determining when multiple convictions are allowed for a single act.) // Rodriguez v. S., 875 So. 2d 642 (2d DCA 2004), 29 F.L.W. D519 (2/25/2004)

Answer 177

Section 921.0026 by its language applies to all felonies except capital crimes. Thus, there is no exception to that rule for DUI offenses, and the court is not precluded from departing downward in an appropriate case. // (See this case, Altenbernd, J., concurring, arguing that the guidelines for DUI manslaughter are too severe and occasionally require a punishment too harsh for the crime.) // S. v. VanBebber, 805 So. 2d 918 (2d DCA 2001), 26 F.L.W. D2558 (10/26/2001)

Answer 178

Defendant may not be convicted of DUI manslaughter based on leaving the scene of an accident, and leaving the scene of an accident involving injuries relating to two different victims. When defendant leaves the scene of an accident, only one count related to that leaving is permitted. // Goldman v. S., 918 So. 2d 442 (4th DCA 2006), 31 F.L.W. D305 (1/25/2006)

Answer 179

The language in the DUI manslaughter statute relating to the death of “any human being” does not prohibit multiple convictions when multiple people are killed in a drunk driving accident (question certified) (but see dissent). // Bautista v. S., 832 So. 2d 122 (4th DCA 2002), 27 F.L.W. D1940 (8/28/2002)

Answer 180

When the state meets the common law requirements for the introduction of blood testing results as required by Robertson, and does not rely on the implied consent provisions and the FDLE rules held improper in Miles, the blood test results are properly admitted. // When the court properly admits BAL test results under the common law rules, but gives the presumption instructions, the error is harmless because DUI can be proven either by having a BAL over .08 or by showing impairment. When the evidence shows the BAL was over .08, impairment is unnecessary and giving an instruction about the presumptions does not matter. // •Dodge v. S., 805 So. 2d 990 (4th DCA 2001), 26 F.L.W. D2875 (12/6/2001)

Answer 181

In a BUI manslaughter case, the finding that defendant caused a death is a sufficient finding under Apprendi to exceed the statutory maximum. // Cameron v. S., 804 So. 2d 338 (4th DCA 2001), 26 F.L.W. D1748 (7/18/2001)

Answer 182

DUI manslaughter is a proper predicate offense for PRR sentencing. // Souza v. S., 889 So. 2d 952 (5th DCA 2004), 29 F.L.W. D2839 (12/17/2004)

Answer 183

The state errs in a DUI manslaughter trial in arguing on the issue of causation that the jury must find the defendant “blameless” before they can find that he did not cause the accident. // Where the court gives a curative instruction after the comment and the jury is properly instructed, the court does not err in denying a mistrial. // Stires v. S., 824 So. 2d 943 (5th DCA 2002), 27 F.L.W. D1706 (7/26/2002)

Answer 184

Defendant was charged with DUI manslaughter, and the information alleged alternatively that he was DUI to the extent his faculties were impaired, or that he had a BAL over .08. The court gave the statutory presumptions of impairment in violation of State v. Miles, 775 So. 2d 950 (Fla. 2000). Held: Although the evidence of guilt is overwhelming, the conviction is reversed. The jury could have based the conviction on the improper presumptions. // (See this case for extensive discussion of harmless error, and when reversal is required in a case where guilt is based on alternative theories.) // Bonine v. S., 811 So. 2d 863 (5th DCA 2002), 27 F.L.W. D738 (3/28/2002)

Answer 185

Defendant cannot be convicted of both DUI manslaughter and DWLSR causing death for causing a single death. // Carney v. S., 17 So. 3d 348 (2d DCA 2009), 34 F.L.W. D1967 (9/30/2009)

Answer 186

If the court erroneously determines that it lacks the discretion to mitigate a sentence, the sentence should be vacated and the defendant resentenced. // The court has the authority to depart downward in a DUI manslaughter and DUI with serious injury case based on §921.0026(2)(j), the offense being committed in an unsophisticated manner. // (See this case for discussion of how the “unsophisticated manner” mitigator applies to DUI manslaughter cases.) // Kezal v. S., 42 So. 3d 252 (2d DCA 2010), 35 F.L.W. D1537 (7/9/2010)

Answer 187

DUI manslaughter is a 2d degree felony and the maximum sentence is 15 years. Where the CPC scoresheet calls for a minimum sentence of 15.593 years, the court must impose that sentence. A sentence of 17 years is unlawful. // McGarrah v. S., 38 So. 3d 217 (2d DCA 2010), 35 F.L.W. D1314 (6/11/2010)

Answer 188

The rule of Valdes v. S., 3 So. 3d 1067 (Fla. 2009) does not invalidate the rule that one death will support only one homicide conviction. Thus, defendant cannot be convicted of both vehicular homicide and DUI manslaughter for one death. // Defendant can be convicted of both DUI manslaughter and leaving the scene of an accident involving a death for causing a single death. However, When DUI manslaughter is enhanced from an F2 to an F1 for leaving the scene, defendant cannot also be convicted of leaving the scene involving death. // Ivey v. S., 47 So. 3d 908 (3d DCA 2010), 36 F.L.W. D226 (10/29/2010)

Answer 189

Section 316.193(3)(c)3 was amended effective 7/1/07 to require a four-year mandatory minimum for DUI manslaughter. Where defendant’s crime occurred in February, 2007, the court errs in imposing the mandatory. // Sims v. S., 36 So. 3d 897 (4th DCA 2010), 35 F.L.W. D1280 (6/9/2010)

Answer 190

Defendant was charged with DUI manslaughter when he drove through a red light and collided with another car. His defense was that he had the green light and the other driver ran the red. Defendant sought to present evidence that the driver of the other car was intoxicated. Held: Under the circumstances the court properly excluded the evidence. That the other driver was intoxicated does not tend to prove who had the green light at the time of the crash. // Edwards v. S., 39 So. 3d 447 (4th DCA 2010), 35 F.L.W. D1452 (6/30/2010)

Answer 191

Defendant cannot be convicted of DUI manslaughter and DUI for a single continuing act of driving. // Labovick v. S., 958 So. 2d 1065 (4th DCA 2007), 32 F.L.W. D1476 (6/13/2007)

Answer 192

Where defendant has both alcohol and cocaine in his blood, the court errs in instructing the jury that the state must prove the following element: “While driving or in actual physical control of the vehicle, defendant had a blood alcohol level of .08 or higher and/or a controlled substance to-wit cocaine.” The instruction allows the conviction based on any level of cocaine, and is fundamental error. // Sabree v. S., 978 So. 2d 840 (4th DCA 2008), 33 F.L.W. D921 (4/2/2008)

Answer 193

Defendant was involved in a fatal auto accident, and was had marijuana in his pocket. A blood test revealed THC metabolites and Xanax, and he was charged with DUI manslaughter based on Xanax in intoxication. At trial the court denied a motion to sever the marijuana possession charge and permitted the state to present evidence of the presence of metabolites in his blood, despite evidence from all experts that the metabolites do not cause mental effects. Held: The court erred in refusing the sever, and in allowing the state to present evidence of the metabolites. The evidence was unduly prejudicial. // Estrich v. S., 995 So. 2d 613 (4th DCA 2008), 33 F.L.W. D2726 (11/26/2008)

Answer 194

The state should not use a relative of the deceased to identify the body at trial. The purpose of the rule is to avoid issues of sympathy that might come from emotional testimony of a family member. // Rodriguez v. S., 919 So. 2d 1252 (Fla. 2006), 31 F.L.W. S39 (1/19/2006)

Answer 195

The failure to instruct the jury on an element of the crime is not fundamental error when the element is not in issue. Thus, in a felony murder prosecution where defendant claims misidentification, omitting the phrase “that was not an essential element of the felony” does not render the instruction fundamentally erroneous. // Battle v. S., 911 So. 2d 85 (Fla. 2005), 30 F.L.W. S608 (9/1/2005) // reversing Thompson v. State, 814 So. 2d 1103 (Fla. 4th DCA 2002)

Answer 196

Defendant may not be convicted of both attempted felony murder and attempted premeditated murder on a single victim in a single event. // Deangelo v. S., 863 So. 2d 374 (1st DCA 2003), 28 F.L.W. D2813 (12/9/2003)

Answer 197

Although third degree murder and vehicular homicide are not lessers of each other, defendant can be convicted of only one count of homicide when he caused a single death. // McKay v. S., 925 So. 2d 1133 (2d DCA 2006), 31 F.L.W. D1088 (4/19/2006)

Answer 198

An essential element of attempted felony murder under §782.051(1) is that the defendant committed an act that is not an essential element of the underlying felony. The failure to instruct on that element is error. // The failure to instruct on the element is not fundamental error when the omitted element is not a disputed issue in the case. Thus, where defendant does not dispute that the crime occurred and claims misidentification, the error is not reversible in the absence of an objection. // Battle v. S., 837 So. 2d 1063 (2d DCA 2003), 28 F.L.W. D236 (1/17/2003)

Answer 199

The fact that the victim refuses medical treatment that might have saved his life (here, the victim, a Jehovah’s Witness, refused a blood transfusion), will not save defendant from a homicide conviction when the defendant’s actions caused a life-threatening injury to the victim. // Klinger v. S, 816 So. 2d 697 (2d DCA 2002), 27 F.L.W. D852 (4/12/2002)

Answer 200

Defendant and victim agreed to do a drug deal. The victim gave defendant the money, and while counting the money, the defendant shot the victim. Defendant was charged with attempted felony murder and robbery. Held: Defendant cannot be convicted of attempted felony murder and robbery for the same deadly act. The shooting was an essential element of the robbery, and that same act cannot be used to prove the crime of attempted felony murder. // Coicou v. S., 867 So. 2d 409 (3d DCA 2003), 28 F.L.W. D2832 (12/10/2003)

Answer 201

Evidence that the victim’s workplace had a million dollar insurance policy on employees is irrelevant and improperly admitted in defendant’s trial on a charge of solicitation to commit murder. There was no evidence the defend knew of the policy, or had any ability to collect on it if the victim had been murdered. // Oliveros v. S., 835 So. 2d 335 (3d DCA 2003), 28 F.L.W. D191 (1/8/2003)

Answer 202

The court properly refuses to instruct on non-death lessers in an aggravated manslaughter case when the defendant confessed to delivering the blows that resulted in the child’s death. // When a homicide takes place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide. // Youmans v. S., 846 So. 2d 670 (4th DCA 2003), 28 F.L.W. D1327 (6/4/2003)

Answer 203

(See •Thompson v. S., 814 So. 2d 1103, 27 F.L.W. D706 (4th DCA 3/27/2002) for extensive discussion of jury instructions for the crime of attempted felony murder.)

Answer 204

When defendant is convicted of multiple homicides for a single death (here, manslaughter, vehicular homicide, and DUI manslaughter) the court must vacate two of the convictions. Merely refusing to adjudicate and not sentencing for the additional offenses is not sufficient. // Suber v. S., 921 So. 2d 13 (5th DCA 2006), 31 F.L.W. D152 (1/6/2006)

Answer 205

Defendant is properly convicted of both attempted 2d degree murder and aggravated battery causing great bodily harm for a single incident. // Gutierrez v. S., 860 So. 2d 1042 (5th DCA 2003), 28 F.L.W. D2790 (12/5/2003)

Answer 206

Defendant is properly charged with attempted felony murder and robbery based on the same event. Each charge contains an element the other does not. // S. v. Blanton, 821 So. 2d 440 (5th DCA 2002), 27 F.L.W. D1654 (7/19/2002)

Answer 207

Defendant is properly charged with attempted felony murder and robbery based on the same event. Each charge contains an element the other does not. // S. v. Blanton, 821 So. 2d 440 (5th DCA 2002), 27 F.L.W. D1654 (7/19/2002)

Answer 208

Defendant cannot be convicted of both DUI manslaughter and DWLSR causing death for causing a single death. // Carney v. S., 17 So. 3d 348 (2d DCA 2009), 34 F.L.W. D1967 (9/30/2009)

Answer 209

Defendant was charged with vehicular homicide and third degree murder, and the court dismissed the vehicular homicide charge on a double jeopardy claim. Defendant pled to third degree murder and was sentenced. The state appealed the dismissal of the vehicular homicide charge. Held: The plea to third-degree murder moots the state’s appeal, because only a single homicide conviction can come from a single death. // S. v. Merriex, 42 So. 3d 934 (2d DCA 2010), 35 F.L.W. D1939 (8/27/2010)

Answer 210

Defendant may not be convicted of both second degree murder and vehicular homicide when a traffic crash he caused resulted in one death. // Hicks v. S., 41 So. 3d 327 (2d DCA 2010), 35 F.L.W. D1590 (7/16/2010)

Answer 211

Defendant is properly convicted of attempted felony murder and shooting into a dwelling for a single incident when there are multiple victims. No double jeopardy violation occurs. // Milton v. S., ___ So. 3d ___, 35 F.L.W. D2010 (3d DCA 9/8/2010)

Answer 212

Defendant is properly convicted of kidnapping and attempted felony murder for the same incident when the kidnapping constitutes the predicate felony for the attempted murder charge. // Walker v. S., 965 So. 2d 189 (3d DCA 2007), 32 F.L.W. D2063 (8/29/2007)

Answer 213

Where the victim’s body is never found and no physical evidence is presented, and the state’s case relies almost solely on contradictory statements made by the defendant to explain the victim's disappearance, the evidence is insufficient to sustain a conviction for second degree murder (but see dissent). // (See this case for extensive discussion of the use of circumstantial evidence to establish the corpus delicti of homicide and to tie the defendant to the crime.) // Ramsammy v. S., 43 So. 3d 100 (4th DCA 2010), 35 F.L.W. D1824 (8/11/2010)

Answer 214

Defendant may be charged with, but not convicted of, two homicide counts for a single death. Where defendant is charged with both manslaughter by culpable negligence and vehicular homicide for a single death, and the jury convicts on both, the court must dismiss one after the verdict. // Burford v. S., 8 So. 3d 478 (4th DCA 2009), 34 F.L.W. D858 (4/29/2009)

Answer 215

Defendant cannot be convicted of three counts of attempted felony murder and three counts of attempted first degree murder for shooting at the same three victims. // Fearon v. S., 10 So. 3d 146 (4th DCA 2009), 34 F.L.W. D629 (3/25/2009)

Answer 216

Under § 777.011, both the actual perpetrator of a crime and those who assist are principals. In a felony murder charge, both the felony murder statute and the principals statute make all persons involved in the robbery equally guilty of the crime. Thus, it does not matter whether defendant or another person shot the victim in a robbery. // Hodge v. S., 970 So. 2d 923 (4th DCA 2008), 33 F.L.W. D137 (1/2/2008)

Answer 217

While the court must give excusable and justifiable homicide as part of a complete manslaughter instruction, it is not fundamental error to omit those parts when manslaughter is a two-step lesser, defendant does not claim justifiable or excusable homicide, defendant does not object to the instructions as given, and defendant is convicted of the main crime. // A two-step lesser is one that is more than one offense removed from the main crime. Where defendant is charged with first degree murder by drug distribution, and the court gives second degree murder, third degree murder, and manslaughter, manslaughter is a two-step lesser. // Pena v. S., 901 So. 2d 781 (Fla. 2005), 30 F.L.W. S122 (2/24/2005)

Answer 218

The court errs in failing to instruct fully on justifiable and excusable homicide when instructing on manslaughter. The fact that the defendant did not object to the erroneous instruction does not prevent reversal. // Beckham v. S., 884 So. 2d 969 (1st DCA 2004), 29 F.L.W. D1761 (8/4/2004)

Answer 219

Defendant broke into the victim’s house by smashing the window. The victim screamed and fell, and was pronounced dead from a heart dysrhythmia caused by the surprise of the burglary. Held: The evidence is sufficient to support the causation element of manslaughter. (See this case for discussion of causation in a manslaughter charge.) // Tyus v. S., 845 So. 2d 318 (1st DCA 2003), 28 F.L.W. D1273 (5/20/2003)

Answer 220

Aggravated manslaughter of a child is not a lesser of 2d degree murder. Where the victim is a child, but the state does not allege the age of the victim in the information charging 2d degree murder, the court reversibly errs in giving aggravated manslaughter as a lesser of 2d degree murder. // Hankerson v. S., 831 So. 2d 235 (1st DCA 2002), 27 F.L.W. D2353 (10/30/2002)

Answer 221

(See Rayl v. S., 891 So. 2d 1052 (2d DCA 2004), 29 F.L.W. D2099 (9/17/2004) for discussion of when manslaughter is a lesser of 2d degree murder.)

Answer 222

Defendant is properly convicted of manslaughter when he starts a fight with the victim, and the victim is killed by a single punch to the head. // •Acosta v. S., 884 So. 2d 112 (2d DCA 2004), 29 F.L.W. D1550 (6/30/2004)

Answer 223

Felony battery can be a category II lesser of manslaughter by culpable negligence. However, when the information does not allege an intentional striking, the court errs in giving felony battery as a lesser. // Jefferies v. S., 849 So. 2d 401 (2d DCA 2003), 28 F.L.W. D1493 (6/27/2003)

Answer 224

The court must instruct the jury on justifiable and excusable homicide in all manslaughter an murder cases. When the defendant is convicted of manslaughter or any one-step lesser, the failure to instruct on justifiable and excusable homicide is fundamental reversible error. // Damoulakis v. S., 814 So. 2d 1204 (2d DCA 2002), 27 F.L.W. D928 (4/24/2002)

Answer 225

The failure to give a complete justifiable and excusable homicide instruction is fundamental only when defendant is convicted of manslaughter or a greater offense that is one step higher. Where defendant is convicted of attempted first-degree murder and the court gives a flawed excusable and justifiable instruction, the error is not fundamental. // Brown v. S., 818 So. 2d 652 (3d DCA 2002), 27 F.L.W. D1366 (6/12/2002)

Answer 226

Failure to instruct on justifiable and excusable homicide when the defendant is convicted of attempted second degree murder is reversible fundamental error. // Richardson v. S., 818 So. 2d 679 (3d DCA 2002), 27 F.L.W. D1374 (6/12/2002)

Answer 227

Defendant is properly convicted of both manslaughter and aggravated battery for a beating of the victim that results in his death. // Terranova v. S., 937 So. 2d 286 (4th DCA 2006), 31 F.L.W. D2373 (9/13/2006)

Answer 228

Where defendant was intoxicated with various drugs and he was playing around with a loaded gun, which discharged and killed the victim, the evidence is sufficient to sustain a verdict of manslaughter by culpable negligence. // (See this case for extensive discussion of what constitutes “culpable negligence” for manslaughter purposes.) // •Sapp v. S., 913 So. 2d 1220 (4th DCA 2005), 30 F.L.W. D2439 (10/19/2005)

Answer 229

There is no crime of attempted manslaughter by culpable negligence. // Cooper v. S., 905 So. 2d 1063 (4th DCA 2005), 30 F.L.W. D1733 (7/20/2005)

Answer 230

Fundamental error occurs when the jury is not properly instructed on the residual offense of manslaughter as a lesser of other homicide offenses. The failure to give a complete justifiable and excusable homicide instruction as part of the manslaughter instruction is error. However, when no evidence suggests that the shootings were justified or excusable, and the jury is properly instructed on the main crime of attempted 2d degree murder and was given an instruction on attempted manslaughter that did not include the full excusable and justifiable homicide instruction, the error is not fundamental, and appellate counsel is not ineffective in failing to raise the issue. // Franco v. S., 901 So. 2d 901 (4th DCA 2005), 30 F.L.W. D1025 (4/20/2005)

Answer 231

Defendant is properly convicted of both attempted voluntary manslaughter and aggravated battery for the same general act. // Newell v. S., 935 So. 2d 83 (5th DCA 2006), 31 F.L.W. D2074 (8/4/2006)

Answer 232

The court properly denies a motion for JOA in a manslaughter charge when the evidence shows that the victim died following a punch to the face and a kick. The evidence does not show as a matter of law that the fight was the result of sudden combat. // (See this case for discussion of “one punch” manslaughter cases.) // J.J.W. v. S., 892 So. 2d 1189 (5th DCA 2005), 30 F.L.W. D340 (2/4/2005)

Answer 233

Failure to read justifiable and excusable homicide instructions when giving a manslaughter instruction as a lesser of 2d degree murder is fundamental reversible error. The failure to object to the misreading does not preclude review. // Fletcher v. S., 828 So. 2d 460 (5th DCA 2002), 27 F.L.W. D2292 (10/18/2002)

Answer 234

The crime of manslaughter by act under §782.07(1) does not require that the state prove the defendant intended to kill the victim. // Manslaughter is committed when the defendant commits an act that results in death, and such an act is not lawfully justified or excusable. Requiring evidence of intent to kill the victim would blur the difference between first-degree murder and manslaughter. // Element 2 of the 2007 standard manslaughter instruction, which states, “(Defendant) intentionally caused the death of (victim)” is erroneous. While a subsequent instruction tells the jury that “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death,” that instruction does not fix the mistaken instruction. // Using the erroneous instruction constituted fundamental error in this case. Fundamental error in jury instructions occurs only when the omission is pertinent or material to what the jury must consider in order to convict. Failing to properly instruct on an element over which there is no dispute is not fundamental error. // Manslaughter is a category one lesser of first degree murder. Manslaughter is two steps removed from first degree murder, and the failure to instruct on a two-step lesser is not error if the defendant is convicted of the primary offense. Where defendant is convicted of second-degree murder as a lesser of first, the failure to instruct properly on manslaughter is not harmless, and gets reversal. // •S. v. Montgomery, 39 So. 3d 252 (Fla. 2010), 35 F.L.W. S204 (4/8/2010)

Answer 235

(See In re: Amendments to Standard Jury Instructions in Criminal Cases - Instruction 7.7, ___ So. 3d ___, 35 F.L.W. S209 (Fla. 4/8/2010) for an amended Manslaughter instruction reflecting changes called of in Montgomery v. S., 35 F.L.W. S204 (Fla. 4/8/10).)

Answer 236

The court errs in an attempted second degree murder charge in instructing the jury on attempted manslaughter by act including an instruction that an intent to kill is part of the lesser offense. // Anderson v. S., ___ So. 3d ___, 36 F.L.W. D692 (1st DCA 3/31/2011)

Answer 237

The court commits fundamental error in instructing the jury on manslaughter by act by telling the jury that the state must show that defendant had an intent to kill. Intent to kill is not an element of the crime. // Stinson v. S., ___ So. 3d ___, 34 F.L.W. D570 (1st DCA 3/13/2009)

Answer 238

(See Salonko v. S., 42 So. 3d 801 (1st DCA 2010), 35 F.L.W. D376 (2/12/2010) for discussion of an erroneous manslaughter by act instruction pertaining to intent to cause death, and when giving the erroneous instruction constitutes fundamental error.)

Answer 239

The decision in Montgomery v. S., 34 F.L.W. D362 (1st DCA 2/12/09) regarding an improperly manslaughter by act instruction does not apply retroactively to convictions that were final before the decision was rendered. // Rozzelle v. S., 29 So. 3d 1141 (1st DCA 2009), 34 F.L.W. D2271 (11/5/2009)

Answer 240

When defendant is charged with 1st degree murder and convicted of 2d, and the court gave the former manslaughter by act instruction as a lesser, the error is fundamental and the conviction is reversed. // Pryor v. S., 48 So. 3d 159 (1st DCA 2010), 35 F.L.W. D2570 (11/22/2010)

Answer 241

(See Rivera v. S., 29 So. 3d 1139 (1st DCA 2009), 34 F.L.W. D2241 (10/30/2009) for discussion of fundamental error in giving the manslaughter by act instruction requiring that defendant “intentionally caused the death” of the victim.)

Answer 242

The Supreme Court’s interim instructions on manslaughter by act, in effect from 12/11/08 to 6/28/10 failed to eliminate the intent instruction found to be in error in Montgomery, and giving the instruction is error resulting in reversal when the jury is instructed on manslaughter by act as a one step lesser of 2d degree murder. // Riesel v. S., 48 So. 3d 885 (1st DCA 2010), 35 F.L.W. D2284 (10/15/2010)

Answer 243

Failing to argue a Montgomery error in a case where defendant was convicted of 2d degree murder and the failure to give a correct instruction on manslaughter by act was not harmless, is ineffective assistance by appellate counsel, and defendant's conviction is reversed. // (See this case for discussion of the history of Montgomery error cases.) // Pollock v. S., ___ So. 3d ___, 36 F.L.W. D744 (2d DCA 4/8/2011)

Answer 244

The court commits reversible error when it fails to instruct on manslaughter by act as a lesser of 1st degree murder for a 1986 murder. // (See this case for discussion of manslaughter instructions over the years, and for the determination that for a 1986 murder, the 1994 version of manslaughter instructions should be used.) // Bolin v. S., 8 So. 3d 428 (2d DCA 2009), 34 F.L.W. D619 (3/20/2009)

Answer 245

Where defendant is charged with attempted 2d degree murder with a firearm, and convicted of aggravated battery with a firearm, and counsel specifically did not request attempted manslaughter, the failure to instruct on excusable and justifiable homicide is not error. // Guardiola v. S., 951 So. 2d 997 (2d DCA 2007), 32 F.L.W. D748 (3/16/2007)

Answer 246

A single intentional punch to the head, which results in an unintended death, can constitute manslaughter. // (See this case for extensive discussion of single punch manslaughter cases, and the “sudden combat” provision of the excusable homicide statute.) // •Hall v. S., 951 So. 2d 91 (2d DCA 2007), 32 F.L.W. D696 (3/14/2007)

Answer 247

The error in giving standard manslaughter by act instruction found erroneous in S. v. Montgomery, 39 So. 3d 252 (Fla. 2010) is rendered harmless when the court also gives a manslaughter by culpable negligence instruction as a lesser of 2d degree murder (question certified). // Haygood v. S., ___ So. 3d ___, 36 F.L.W. D270 (2d DCA 2/4/2011)

Answer 248

When the court gives the erroneous manslaughter by act instruction, and manslaughter by culpable negligence is not given, the error is fundamental and the conviction for 2d degree murder is reversed. // Carter v. S., 53 So. 3d 1248 (2d DCA 2011), 36 F.L.W. D407 (2/23/2011)

Answer 249

When defendant is charged with first degree murder and the court gives an erroneous manslaughter by act instruction as a lesser, with no manslaughter by culpable negligence instruction, and defendant is convicted of second degree murder, the error is fundamental and the conviction is reversed. // Walker v. S., 46 So. 3d 160 (2d DCA 2010), 35 F.L.W. D2372 (10/27/2010)

Answer 250

Defendant’s act of driving a vehicle while intoxicated, and refusing to allow a sober person to drive, amounts to “consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury,” and is sufficient to make a case of manslaughter by culpable negligence. // Hernandez v. S., 959 So. 2d 355 (3d DCA 2007), 32 F.L.W. D1423 (6/6/2007)

Answer 251

(See Solano v. S., 35 So. 3d 930 (3d DCA 2010), 35 F.L.W. D768 (4/7/2010) for discussion of fundamental error in giving the manslaughter by act standard instruction.)

Answer 252

When the jury is instructed on both manslaughter by culpable negligence and manslaughter by act as lessers of 2d degree murder, the error in giving the flawed manslaughter by act instruction is not fundamental. // Moore v. S., ___ So. 3d ___, 36 F.L.W. D512 (3d DCA 3/9/2011)

Answer 253

(See Leggett v. S., ___ So. 3d ___, 35 F.L.W. D548 (3d DCA 3/10/2010), Cope, J. concurring, for the position that giving an incorrect standard manslaughter by act instruction is fundamental error, and for a description of the evolution of the manslaughter by act instruction.)

Answer 254

Because manslaughter is a residual offense, it can only be defined by instructing the jury what does not constitute the crime. Thus, when giving the manslaughter instruction, the court must give both justifiable and excusable homicide as part of the instruction. The failure to do so is fundamental error. // Jimenez v. S., 994 So. 2d 1141 (3d DCA 2008), 33 F.L.W. D480 (2/13/2008)

Answer 255

Defendant and victim got in a fight, and the victim died. Defendant was charged with second degree murder, which was JOA’d to manslaughter after the state’s case. The court instructed on aggravated battery as a lesser, and the jury convicted on that charge. Held: An allegation that defendant killed the victim sufficiently alleges that he caused great bodily harm to support an aggravated battery conviction as a lesser of manslaughter. // Lester v. S., 25 So. 3d 623 (3d DCA 2009), 35 F.L.W. D22 (12/23/2009)

Answer 256

Defendant and other followed a group of people that included an ex-girlfriend. Defendant brought a gun with him, and a confrontation ensued. A codefendant grabbed the gun from defendant, and shot a killed a person in the other group. Defendant and codefendant were charged with second degree murder, and defendant was convicted of manslaughter as a lesser. Held: Defendant's acts of chasing the victim, helping to corner him, and supplying the gun sufficiently establishes the elements of manslaughter. // The court fundamentally errs in giving a jury instruction on manslaughter that used “and/or” regarding the acts of defendant and codefendant. The instruction allowed defendant to be convicted for the acts of the codefendant, which is fundamental error. // Berdeca v. S., 971 So. 2d 846 (3d DCA 2007), 32 F.L.W. D2531 (10/24/2007)

Answer 257

Defendant was handling a stolen gun. He attempted to eject the ammunition clip and the gun fired, killing his friend. The defendant was intoxicated at the time. Held: The evidence is sufficient to sustain a manslaughter by culpable negligence conviction. // The court errs in failing to sever the grand theft charge from the manslaughter charge when the evidence shows that another person stole the gun and delivered it to defendant several days before the shooting. The events were not sufficiently connected to allow joinder. // Williams v. S., 40 So. 3d 89 (4th DCA 2010), 35 F.L.W. D1554 (7/14/2010)

Answer 258

Giving an erroneous manslaughter by act instruction as a lesser of 2d degree murder is not fundamental error under S. v. Montgomery when defendant is convicted of the lesser offense. It is fundamental error when defendant is convicted of the greater offense, not the lesser. // Contreras-Mayahua v. S., 40 So. 3d 861 (4th DCA 2010), 35 F.L.W. D1563 (7/14/2010)

Answer 259

The fundamental error in the manslaughter by act instruction found in S. v. Montgomery, 35 F.L.W. S204 (4/8/10) does not apply when the jury is given alternate methods of proving manslaughter, including manslaughter by culpable negligence. Thus, while the standard manslaughter by act instruction was error, when combined with the manslaughter by culpable negligence instruction and given as a lesser of second-degree murder, the error is not fundamental. // Singh v. S., 36 So. 3d 848 (4th DCA 2010), 35 F.L.W. D1232 (6/2/2010)

Answer 260

The court errs in imposing a firearm mandatory for manslaughter or attempted manslaughter with a firearm. // When defendant commits second degree murder with a firearm, manslaughter with a firearm and attempted manslaughter with a firearm, and he receives a life sentence on the murder, the court properly imposes 20 years on the manslaughter and attempted manslaughter convictions, despite the claim that attempted manslaughter with a firearm is an F2. Under § 921.0024(2), the statutory maximum does not apply to additional offenses and the court can impose a sentence up to the statutory maximum of the primary offense. // Cunningham v. S., 22 So. 3d 127 (4th DCA 2009), 34 F.L.W. D2258 (11/4/2009)

Answer 261

(See Burton v. S., ___ So. 3d ___, 36 F.L.W. D738 (5th DCA 4/8/2011), (Lawson, J., concurring, for discussion of why an unpreserved error in the instruction for a one-step lesser should not result in automatic reversal.)

Answer 262

When defendant is charged with and convicted of manslaughter by act and the court gives the former standard instruction found erroneous in Montgomery, the error is fundamental and the conviction is reversed, despite counsel’s agreement with the instruction as given. // Davis v. S., ___ So. 3d ___, 36 F.L.W. D531 (5th DCA 3/11/2011)

Answer 263

The court does not err in failing to give the justifiable homicide portion of the manslaughter instruction when defense counsel specifically states that it is not applicable. The failure to requested attempted manslaughter without a firearm as a lesser likewise waives review. // Gomez v.S., 5 So. 3d 700 (5th DCA 2009), 34 F.L.W. D290 (2/6/2009)

Answer 264

The rule of Montgomery v. S., 39 So. 3d 252 (Fla. 2010), finding the manslaughter by act instruction improper, does not apply retroactively to cases final before the date of that decision. // Harricharan v. S., ___ So. 3d ___, 36 F.L.W. D420 (5th DCA 2/25/2011)

Answer 265

Defendant is properly convicted of manslaughter by culpable negligence when his pit bulls escape and kill a neighbor. Where defendant has knowledge that the dogs had bitten other people, and he made insufficient efforts to keep the dogs confined, his conduct is sufficiently culpably negligent under the statute. // (See this case for discussion of the dangerous dog statute and its effect on a manslaughter charge.) // Freeman v. S., 969 So. 2d 473 (5th DCA 2007), 32 F.L.W. D2722 (11/16/2007)

Answer 266

The fact that defendant was driving a few miles over the speed limit, had a BAL of 0.34, and drifted over the center line causing a collision, does not show sufficient culpable negligence to sustain a manslaughter charge. // Sexton v. S., 898 So. 2d 1187 (1st DCA 2005), 30 F.L.W. D928 (4/7/2005)

Answer 267

Defendant cannot be adjudicated guilty of both vehicular homicide and DUI manslaughter when the accident causes a single death. // Leveritt v. S., 817 So. 2d 891 (1st DCA 2002), 27 F.L.W. D1122 (5/7/2002)

Answer 268

Where the defendant may have driven through a stop sign, but was not speeding or otherwise driving recklessly, the evidence is insufficient to sustain a vehicular homicide conviction. // Vehicular homicide cannot be proven without proving reckless driving. // S. v. DelRio, 854 So. 2d 692 (2d DCA 2003), 28 F.L.W. D1731 (7/25/2003)

Answer 269

In a vehicular homicide case, evidence of the victim’s negligence is relevant only if the victim’s act was the sole proximate cause of the accident. // Where defendant presents expert evidence that the cause of the accident was the victim’s act of turning in front of defendant’s vehicle, the court errs in refusing to give a special instruction on causation. // To get a special instruction, the defendant must prove that the special instruction was supported by the evidence, was a correct statement of the law and was not confusing or misleading, and the standard instruction did not adequately cover the theory of defense. // Keller v. S., 849 So. 2d 385 (2d DCA 2003), 28 F.L.W. D1395 (6/13/2003)

Answer 270

Court errs in denying a JOA on vehicular homicide when the only evidence of improper driving was speeding. Speeding alone will not support a vehicular homicide charge. // House v. S., 831 So. 2d 1230 (2d DCA 2002), 27 F.L.W. D2640 (12/11/2002)

Answer 271

The court errs in granting a c(4) motion to dismiss in a vehicular homicide case based on the defense’s claim that defendant’s act in going through an intersection 45 mph over the speed limit and disregarding a flashing yellow light failed to show recklessness. // In determining causation for vehicular homicide, the state must show that the harm that occurred was within the scope of the danger created by the defendant's negligent conduct. // The victim’s conduct must be the sole proximate cause of the accident before the defendant’s conduct will be found not to be the cause of the accident. Thus, the fact that the victim had cocaine and alcohol in her system does not excuse the defendant’s conduct. // (See this case, including dissent, for extensive discussion of causation in vehicular homicide cases.) // S. v. Gensler, 929 So. 2d 27 (3d DCA 2006), 31 F.L.W. D978 (4/5/2006)

Answer 272

Court errs in a vehicular homicide case involving a police officer charged with killing a pedestrian in refusing to admit evidence showing that the victim was impaired by drugs and alcohol. Where the state’s evidence is that the officer was driving too fast and that he victim would have been able to get out of the way if the officer had not been speeding, the court must permit evidence that the victim’s judgment may have been impaired. // (See this case for discussion of the admissibility of police manuals and police practices in a case involving an officer charged with a crime.) // Gensler v. S., 868 So. 2d 557 (3d DCA 2004), 29 F.L.W. D294 (1/28/2004)

Answer 273

Defendant is properly convicted of multiple counts of vehicular homicide when multiple people are killed in a single accident. When defendant leaves the scene of the accident, he is properly convicted of multiple counts of first-degree felony vehicular homicide under §782.071(1)(b). // McKnight v. S., 906 So. 2d 368 (5th DCA 2005), 30 F.L.W. D1765 (7/22/2005)

Answer 274

The degree of culpability needed to show reckless driving is less than that required to show culpable negligence manslaughter, but more than the mere failure to use ordinary care. A person does not have to foresee the specific circumstances that cause the death of a victim in order to be guilty of vehicular homicide. The defendant must have reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another. // Defendant's act of driving at high speed on a residential street with only a learner’s permit, being unable to maintain a single lane, and going around a curve at high speed resulting in an accident that caused a death, is sufficient to sustain a vehicular homicide conviction. // (See this case for discussion of the sufficiency of evidence of recklessness needed to sustain a conviction for vehicular homicide, and criticism of the rule that speed alone is insufficient to sustain a conviction for that crime.) // •D.E. v. S., 904 So. 2d 558 (5th DCA 2005), 30 F.L.W. D1397 (6/3/2005)

Answer 275

Where defendant was driving 10 miles over the speed limit on the interstate, he had alcohol and drugs in his system, and he misjudged his distance from another vehicle, requiring an evasive maneuver that resulted in the death of his passenger, he is properly convicted of vehicular homicide. // Savage v. S., 880 So. 2d 809 (5th DCA 2004), 29 F.L.W. D1855 (8/13/2004)

Answer 276

Defendant participated in a street race with another person. An accident occurred, killing a passenger in the other person’s car. Held: The element of causation is sufficiently established for vehicular homicide purposes. The victim did not cause her own death, and the driver of the car in which the victim was riding was not the sole cause of the accident. // (See this case for discussion of causation in vehicular homicide cases.) // Reaves v. S., 979 So. 2d 1006 (1st DCA 2008), 33 F.L.W. D901 (3/31/2008)

Answer 277

While speed alone generally does not constitute recklessness for vehicular homicide purposes, it is different when the defendant drives at such an immensely excessive rate that no one could reasonably drive safely. A vehicle can be driven at such an excessive speed that the act by itself shows a reckless disregard for human life. // Pozo v. S., 963 So. 2d 831 (4th DCA 2007), 32 F.L.W. D1895 (8/8/2007)

Answer 278

Defendant was charged with vehicular homicide as a result of the death of a passenger in his car killed when the car he was driving entered a railroad crossing when the gates were down. He proffered evidence from experts indicating that the crossing did not meet regulations and that the train engineer sounded the horn inadequately. The court refused to allow the evidence. Held: The exclusion of the evidence prevented defendant from presenting his defense, and the conviction is reversed. // (See this case for discussion of the admissibility of expert evidence regarding culpable negligence in an auto accident case.) // Wynkoop v. S., 14 So. 3d 1166 (4th DCA 2009), 34 F.L.W. D1230 (6/17/2009)

Answer 279

Defendant was driving at an excessive speed on the turnpike and was swerving in and out passing other cars. His act of swerving caused another car to swerve and roll over, killing that driver. Defendant was charged with vehicular homicide enhanced by leaving the scene, and he testified he did not know that an accident had happened behind him. Held: The circumstantial evidence of knowledge was sufficient to submit the case to the jury, and the conviction is affirmed. // (See this case for discussion of the requirements of proving knowledge that an accident has occurred for a charge under §782.071(1)(b).) // Knowles v. S., 29 So. 3d 466 (4th DCA 2010), 35 F.L.W. D653 (3/24/2010)

Answer 280

The court errs in suppressing evidence from a search warrant issued for the sensing and diagnostic module (SDM) (the car’s “black box”) from the defendant’s car, which was involved in an accident resulting in the victim's death. The allegation that defendant was going approximately 70 in a 40 mph zone is sufficient to provide probable cause that defendant committed vehicular homicide. // S. v. Abbey, 28 So. 3d 208 (4th DCA 2010), 34 F.L.W. D2372 (2/24/2010)

Answer 281

Vehicular homicide cannot be proved without proving reckless driving. Excessive speed can amount to reckless driving, but excessive speed for the prevailing conditions rarely occurs without other circumstances. // (See this case for extensive discussion of the maxim that speed alone is insufficient as a basis for reckless driving.) // S. v. Lebron, 954 So. 2d 52 (5th DCA 2007), 32 F.L.W. D732 (3/16/2007)

Answer 282

Vehicular homicide is the killing of a person caused by the operation of a motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another. Vehicular homicide cannot be proven without also proving the elements of reckless driving. Recklessness is a degree of negligence that falls short of culpable negligence but is more than mere negligence. // Defendant driving on a busy four lane road stopped in a through lane with a green light and almost was rear-ended by a dump truck, the driver swerved into the left turn lane and made a turn across oncoming traffic, causing an accident. Held: The driver’s level of negligence does not rise to the level of recklessness, and the court errs in denying a JOA (but see dissent). // Berube v. S., 6 So. 3d 624 (5th DCA 2008), 33 F.L.W. D451 (2/8/2008)

Answer 283

Where the evidence shows that the victim got into the defendant’s van voluntarily, but that instead of taking her back to her car the defendant took her to his apartment where he raped and killed her, the evidence is sufficient to sustain a kidnapping charge. // Boyd v. S., 910 So. 2d 167 (Fla. 2005), 30 F.L.W. S458 (6/16/2005)

Answer 284

Faison rules, pertaining to whether confinement was incidental to the commission of a felony, do not apply to false imprisonment cases. // The Faison rule was developed because of the element in kidnapping pertaining to facilitating the commission of a felony. Because there is no such element in false imprisonment, Faison does not apply. // •S. v. Smith, 840 So. 2d 987 (Fla. 2003), 28 F.L.W. S120 (2/6/2003) // approving Chaeld v. S., 599 So. 2d 1362 (1st DCA 1992) // reversing Smith v. S., 785 So. 2d 623 (5th DCA 2001)

Answer 285

The court errs in reading all four possible methods of kidnapping in the statute when defendant is charged with only with kidnapping to facilitate a felony. By reading all possibilities. the court commits fundamental error, and the failure to raise the issue is ineffective assistance of appellate counsel. // Rogers v. S., 935 So. 2d 639 (1st DCA 2006), 31 F.L.W. D2156 (8/15/2006)

Answer 286

Defendant broke into the victim’s apartment and demanded sex. They talked for three hours, and he raped her. He was charged with sexual battery, kidnapping, and other crimes. Held: The kidnapping was incidental to the sexual battery, and under Faison the kidnapping should have been dismissed. The length of time he confined her in the apartment, standing alone, goes only to whether the confinement was substantial, but the confinement here was only to facilitate the sexual battery. // Sanders v. S., 905 So. 2d 271 (2d DCA 2005), 30 F.L.W. D1637 (7/1/2005)

Answer 287

Court errs in reclassifying kidnapping and robbery for use of a firearm when the jury does not make a specific finding that defendant carried the weapon. Even if the information specifies the carrying of a firearm, and the verdict finds defendant guilty “as charged,” the jury still must make a special finding before the offense can be reclassified and a mandatory minimum imposed. // Thompson v. S., 862 So. 2d 955 (2d DCA 2004), 29 F.L.W. D270 (1/21/2004)

Answer 288

Where defendant during a robbery ordered the restaurant employees into a freezer, the movement is incidental to the robbery and defendant cannot be convicted of kidnapping. // Frederick v. S., 931 So. 2d 967 (3d DCA 2006), 31 F.L.W. D1426 (5/24/2006)

Answer 289

Defendant had the victim and her brother in a car. The brother got out, and defendant kept the victim in the car. He drove her to a secluded location a raped her. Held: Defendant is properly convicted of both kidnapping and sexual battery. The fact that the victim accepted a ride does not preclude kidnapping. // Corner v. S., 868 So. 2d 553 (3d DCA 2004), 29 F.L.W. D290 (1/28/2004)

Answer 290

Under §787.01(a)2, the state must establish that the defendant acted with intent to commit a felony. The court errs in instructing the jury that the state must prove that defendant intended to commit assault or battery, because those crimes are misdemeanors. // The court also errs in instructing that the jury must find that defendant acted with intent to commit attempted kidnapping. the element requires an intent to commit a different felony. // Bell v. S., 847 So. 2d 558 (3d DCA 2003), 28 F.L.W. D1365 (6/11/2003)

Answer 291

Kidnapping a person is a first degree felony punishable by life. Kidnapping with a firearm reclassifies the offense to a life felony. Under the law in effect in 1990, a life felony sentence could be up to 40 years, or life, and a 50-year sentence is illegal. // Griffin v. S., 934 So. 2d 614 (4th DCA 2006), 31 F.L.W. D1995 (7/26/2006)

Answer 292

Reading elements of kidnapping that are not charged, and allowing the jury to convict based on elements not charged in the information, is fundamental error and is reversible regardless of any lack of objection in trial. // Hodges v. S., 878 So. 2d 401 (4th DCA 2004), 29 F.L.W. D1396 (6/9/2004)

Answer 293

The court errs in failing to JOA a kidnapping charge where the victim fell during a store robbery and the defendant dragged him a few feet in the store. The confinement was incidental to the robbery. // Russell v. S., 874 So. 2d 1256 (4th DCA 2004), 29 F.L.W. D1408 (6/9/2004)

Answer 294

Where defendant abducts the victim in one county and takes her to another county, he cannot be convicted of kidnapping in both counties. Conviction in both counties of the same kidnapping violates double jeopardy. // Ashman v. S., 886 So. 2d 1079 (5th DCA 2004), 29 F.L.W. D2634 (11/19/2004)

Answer 295

The victim left home telling her mother that she would be home in the morning, and she told her boyfriend that she would see him the next day. When her body was found in the river, she was bound with tape and rope covering her mouth and eyes. Bags were attached to the body that appeared to have been used to weight down the body. Held: The circumstantial evidence is sufficient to sustain a kidnapping charge. // Huck v. S., 881 So. 2d 1137 (5th DCA 2004), 29 F.L.W. D1655 (7/16/2004)

Answer 296

Where the defendant takes the victim into a building and the finance office in an attempt to find out where money is hidden, the movement is not slight or inconsequential and the defendant is properly convicted of kidnapping. // Jones v. S., 844 So. 2d 745 (5th DCA 2003), 28 F.L.W. D1154 (5/9/2003)

Answer 297

The Faison rule does not apply to kidnappings charged under §787.01(1)(a)3, which prohibits confinement within intent to inflict harm or terrorize the victim. The Faison rules apply to charges under §787.01(1)(a)2, criminalizing kidnapping with intent to facilitate a felony. // Sutton v. S., 834 So. 2d 332 (5th DCA 2003), 28 F.L.W. D168 (1/3/2003)

Answer 298

Where, during a robbery, the defendant forced customers and employees into an open safe and they were free to come out when the robbers left the premises, the facts are insufficient to sustain kidnapping conviction. // Elozar v. S., 825 So. 2d 490 (5th DCA 2002), 27 F.L.W. D1956 (8/30/2002)

Answer 299

Battery is not a lesser of kidnapping when the information fails to allege that defendant intentionally touched the victim. // Donovan v. S., 821 So. 2d 1099 (5th DCA 2002), 27 F.L.W. D1289 (5/31/2002)

Answer 300

Where defendant tied up one victim while he beat another, and binding the victim facilitated the commission of the battery, defendant is properly convicted of battery even where there is no movement of the victim. // Maxwell v. S., 803 So. 2d 815 (5th DCA 2001), 27 F.L.W. D90 (12/28/2001)

Answer 301

A victim who is not robbed but who is restrained during a robbery of other people, can be the victim of a false imprisonment. Where the victim is restrained on a couch while the house is searched, the confinement is sufficient under Faison to constitute a false imprisonment. // Faison rules apply to false imprisonment cases. // Davis v. S., 816 So. 2d 840 (1st DCA 2002), 27 F.L.W. D1304 (5/28/2002)

Answer 302

The victim sought to buy drugs from the defendant, who got into the victims’ car. They drove to an ATM, the victim got out of the car and got back in, and the defendant drove off in the car, with the victim in it, when he heard police sirens. Held: The act of driving off with the victim constituted kidnapping under the Faison test. // Browning v. S., ___ So. 3d ___, 36 F.L.W. D788 (1st DCA 4/14/2011)

Answer 303

Defendant attacked the victim in one room, dragged her by her hair into another room and beat her, and then dragged her outside and continued the attack. Held: The movement and confinement are sufficient under Faison to sustain a kidnapping conviction. // Perry v. S., ___ So. 3d ___, 36 F.L.W. D596 (1st DCA 3/22/2011)

Answer 304

Kidnapping with a firearm is a life felony, and the maximum sentence is life or up to 40 years. A 100-year sentence is not permissible. // Jackson v. S., 29 So. 3d 1152 (2d DCA 2010), 35 F.L.W. D287 (2/3/2010)

Answer 305

Faison applies to kidnapping charges filed under §787.01(1)(a)(2), a kidnapping to facilitate the commission of a crime. Faison does not apply when the charge is under §787.01(a)(3), to forcibly, secretly or by threat confined another person with intent to inflict bodily harm or to terrorize. The court does not err in refusing to give a Faison instruction under those circumstances. // Defendant approached the victim at a school bus stop. He grabbed her when she tried to run and then choked her. He was charged with attempted murder and kidnapping under §787.01(1)(a)(3). The assault took less than a minute, the restraint was momentary, and the victim’s movement was restricted only because she was pushed to the ground and choked. Held: The court errs in refusing to JOA the kidnapping to false imprisonment. // (See this case for extensive discussion of the Faison rule, and he requirement of “confining” for kidnapping purposes.) // Conner v. S., 19 So. 3d 1117 (2d DCA 2009), 34 F.L.W. D2089 (10/14/2009)

Answer 306

Defendant stole a truck that had been left idling at a store. Inside the truck was a small child. The truck was found 30 minutes later with the child safe and items stolen from the truck. Defendant was charged with kidnapping. Held: Under Faison, it was reasonable to infer that the defendant became aware of the presence oaf the child in the course of the theft of the truck or contents, and that confinement of the child was essential to avoid apprehension. The court does not err in denying JOA on the kidnapping charge. // Delgado v. S., 19 So. 3d 1055 (3d DCA 2009), 34 F.L.W. D1985 (9/30/2009)

Answer 307

The Faison rule does not apply when defendant is charged with kidnapping with the intent to inflict harm upon or terrorize the victim under §787.01(1)(a)(3). The rule applies only to kidnapping charged under §787(1)(a)(2), which involved kidnapping with intent to facilitate a felony. // S. v. Lumarque, 990 So. 2d 1241 (3d DCA 2008), 33 F.L.W. D2284 (9/24/2008)

Answer 308

Defendant is properly convicted of kidnapping and attempted felony murder for the same incident when the kidnapping constitutes the predicate felony for the attempted murder charge. // Walker v. S., 965 So. 2d 189 (3d DCA 2007), 32 F.L.W. D2063 (8/29/2007)

Answer 309

Defendant was arrested for drug possession and placed in a patrol car. During transport, the door opened and he either jumped out or fell out and ran away. He was charged with possession and escape, and at trial the defense attempted to show he was not in possession of the drugs as part of the escape defense to show that he was not in lawful custody, and the court refused. Held: Whether defendant was in lawful custody is an element of escape, and the court errs in refusing to allow defendant to show that he should not have been arrested. // Jean v. S., 27 So. 3d 784 (3d DCA 2010), 35 F.L.W. D403 (2/17/2010)

Answer 310

A parent can kidnap his own child when he does not simply exercise visitation rights but takes the child for an ulterior and unlawful purpose which is specifically prohibited by the kidnapping statute. Thus, where defendant takes his own child and commits aggravated child abuse on the child, he is properly convicted of kidnapping // Davila v. S., 26 So. 3d 5 (3d DCA 2009), 34 F.L.W. D2174 (10/21/2009) // but see Muniz v. S., 764 So. 2d 729 (2d DCA 2000)

Answer 311

Defendant grabbed the victim by the hair and pulled her into a bedroom, where he committed a lewd molestation. Held: Because the movement was a short distance, and the confinement lasted only as long as needed to commit the crime, under Faison the confinement does not constitute kidnapping (but see dissent). // Tindall v. S., 45 So. 3d 799 (4th DCA 2010), 35 F.L.W. D1449 (6/30/2010)

Answer 312

Defendant had permission to drive the victim to school. Instead, he stopped at a motel and molested the child. He was charged with, among other things, false imprisonment. Held: To commit false imprisonment of a child under 13, the taking must be against the will of the child’s parent or legal guardian. In this case, no evidence was presented that any legal guardian had denied permission for defendant to take the child, and the court errs in refusing to grant a JOA. // Andre v. S., 13 So. 3d 103 (4th DCA 2009), 34 F.L.W. D1010 (5/20/2009)

Answer 313

Defendant entered a store to rob it. He took the clerk into a bathroom, and then handcuffed her. He released her to open the safe,which failed. Held: The movement and confinement was slight and done to facilitate the robbery, and was not sufficient to sustain a kidnaping conviction. // Lewis v. S., 50 So. 3d 86 (4th DCA 2010), 35 F.L.W. D2848 (12/15/2010)

Answer 314

Defendant was charged with armed sexual battery and armed kidnapping based on the victim’s testimony that he used a gun to abduct her and sexually batter her. The jury convicted him as charged, but answered a special interrogatory in the negative regarding whether he possessed a firearm during the crime. Held: Defendant is properly convicted of armed sexual battery because under the statute he commits the crime he he threatens to use a firearm, and does not need to actually possess a firearm to commit the crime. // Armed kidnapping, however, requires the actual possession of a weapon. The jury’s finding prohibits the finding of armed kidnapping. // Wise v. S., 48 So. 3d 203 (4th DCA 2010), 35 F.L.W. D2623 (12/1/2010)

Answer 315

Defendant is properly convicted of kidnapping when he uses a ruse to enter the victim’s apartment, handcuffs the victim, and then takes her child and delivers the child to the child’s grandparents. The conduct constitutes kidnapping and not merely interference with custody. // Diez v. S., 970 So. 2d 931 (4th DCA 2008), 33 F.L.W. D172 (1/2/2008)

Answer 316

Defendant's act of enticing a child into a secluded area away from the pool where she was playing constitutes “secretly” abducting the child, and is sufficient to support a kidnapping conviction. // When the victim of the kidnaping is under 13, the element of abducting “against his or her will” is met when the abduction is without the consent of a parent or guardian. // The act of luring the child from the pool into a secluded area is sufficient to support kidnapping against a Faison objection. The movement was done to facilitate the underlying felony and lessened the risk of detection. // Defendant is properly convicted of both kidnapping and lewd act on a child during the same incident. // Bishop v. S., 46 So. 3d 75 (5th DCA 2010), 35 F.L.W. D2039 (9/10/2010)

Answer 317

False imprisonment does not qualify for PRR sentencing, even when defendant is convicted of battery along with false imprisonment, because it is not a crime involving the use or threat of physical force or violence against an individual. // (See this case, noting the irony of the law that permits PRR sentencing when defendant is convicted of an assault along with a felony, but not a battery.) // Kalogeras v. S., ___ So. 3d ___, 36 F.L.W. D340 (5th DCA 2/11/2011)

Answer 318

Defendant’s act of dragging the victim down a hallway and up a flight of stairs so as to strangle her in a more secluded location is sufficient to sustain a kidnapping conviction. // Melendez v. S., ___ So. 3d ___, 36 F.L.W. D111 (5th DCA 1/14/2011)

Answer 319

Defendant was arrested while standing on the street corner at midnight, and giving inconsistent explanations for being there. A search incident to arrest revealed drugs. Held: The court errs in refusing to suppress drugs because the officer had no basis for a loitering arrest, and he had no basis for a reasonable belief that she was engaged in drug activity. // Mash v. S., 920 So. 2d 67 (1st DCA 2005), 31 F.L.W. D130 (12/30/2005)

Answer 320

When LEO observes defendant walking around looking in cars late at night in an area with open businesses, and the officer disbelieves defendant’s explanation about what he was doing, the evidence is not sufficient to sustain a loitering charge because there is no imminent threat to the peace, public safety, or property. // Bowser v. S., 937 So. 2d 1270 (2d DCA 2006), 31 F.L.W. D2477 (10/4/2006)

Answer 321

Walking on a public street in broad daylight is not alarming and does not give any implication that the defendant is about to commit a crime. The fact that officer suspected defendant of burglaries, and that he gave unsatisfactory answers when stopped, does not provide a basis to arrest for loitering. // All of the elements of loitering must occur in the officer’s presence before he can make an arrest. // (See this case for discussion of the elements of loitering.) // Rucker v. S., 921 So. 2d 857 (2d DCA 2006), 31 F.L.W. D712 (3/8/2006)

Answer 322

The state must show an imminent threat to public safety before it can obtain a loitering conviction. A mere suspicion of criminal activity will not support a conviction. // B.A.O. v. S., 932 So. 2d 301 (2d DCA 2006), 31 F.L.W. D165 (1/11/2006)

Answer 323

The police saw defendant with a large amount of lawn care equipment and an expensive bicycle at 4:30 a.m. The officer stopped him, obtained an explanation, and found that the explanation was false. The officer arrested him for loitering. Held: The arrest was proper. // Freeman v. S., 909 So. 2d 965 (3d DCA 2005), 30 F.L.W. D2041 (8/31/2005)

Answer 324

To sustain a loitering conviction, the defendant’s actions must either amount to aberrant and suspicious criminal conduct which comes close to but falls short of the actual commission or attempted commission of a substantive crime, or points toward the commission or attempted commission of a crime against a person or a crime against certain property in the vicinity. // S.P. v. S., 833 So. 2d 267 (3d DCA 2002), 28 F.L.W. D12 (12/26/2002)

Answer 325

To convict a person of loitering, the suspected criminal activity must be imminent. When defendant shined a light into a store and then walked away, any criminal activity was not imminent and he is not properly found to have committed loitering. // Gonzalez v. S., 828 So. 2d 496 (3d DCA 2002), 27 F.L.W. D2301 (10/23/2002)

Answer 326

LEO saw a juvenile walking down the street at 4:23 a.m. The officer inquired, and the child indicated where he was coming from and that he was going to take a cab home. Held: Court errs in finding the child guilty of loitering. There was no evidence of future criminal activity except for a curfew violation, and the evidence does not sustain loitering. // A.D. v. S., 817 So. 2d 1027 (3d DCA 2002), 27 F.L.W. D1312 (6/5/2002)

Answer 327

Before convicting defendant of giving false information to an LEO under §901.36, the defendant must be lawfully arrested. Where defendant’s arrest for loitering was not proper, he cannot be convicted for giving false information. // (See this case for discussion of when a loitering arrest is proper.) // Gillen v. S., 927 So. 2d 1083 (4th DCA 2006), 31 F.L.W. D1382 (5/17/2006)

Answer 328

LEO saw juveniles come out from behind a shopping center at 3.45 a.m. They ran behind the building and the officer stopped them. Held: Court errs in finding the child guilty of loitering. The evidence fails to show an imminent breach of peace. // G.G. v. S., 903 So. 2d 1031 (4th DCA 2005), 30 F.L.W. D1517 (6/15/2005)

Answer 329

(See Grant v. S., 854 So. 2d 240 (4th DCA 2003), 28 F.L.W. D2067 (9/3/2003) for discussion of the elements of loitering, and application of those elements in a case where defendant was arrested at an all-night truck stop.)

Answer 330

LEO saw defendant acting strangely in a high crime residential neighborhood at night. The officer stopped him and arrested him for loitering and a search revealed a gun. Held: Defendant’s actions were insufficient to suggest a breach of the peace or to suggest that he was about to commit a crime. // Ferguson v. S., 39 So. 3d 551 (2d DCA 2010), 35 F.L.W. D1612 (7/21/2010)

Answer 331

Evidence that defendant was behind a closed business in early morning hours, and he crouched behind a car when the LEO approached is sufficient to establish the first element of loitering, but it is insufficient to prove that there was an immediate concern for the safety of persons or property. // Stephens v. S., 987 So. 2d 182 (2d DCA 2008), 33 F.L.W. D1814 (7/18/2008)

Answer 332

Defendant’s act of walking near cars in a residential neighborhood at 10:30 at night near his home does not constitute loitering, and the court errs in failing to grant a motion to suppress evidence found on the defendant following a search. // The loitering statute requires special care in its application, because the statute reaches the outer limits of constitutionality, and the statute must not be used as a “catchall” statute when nothing else will allow the detention of the defendant. // (See this case for discussion of loitering cases.) // Simms v. S., 51 So. 3d 1264 (2d DCA 2011), 36 F.L.W. D206 (1/28/2011)

Answer 333

An LEO was shot responding to a burglar alarm. A responding officer found defendant nearby within a few minutes. He was similar in description to the shooter, and his behavior and answers were inconsistent. He was arrested for loitering, and ultimately confessed to the shooting. Held: The officer had sufficient suspicion to stop defendant and ultimately to arrest him for loitering. // Poviones v. S., 15 So. 3d 599 (3d DCA 2009), 34 F.L.W. D1067 (5/27/2009)

Answer 334

(See Lugo v. S., 992 So. 2d 415 (3d DCA 2008), 33 F.L.W. D2427 (10/15/2008) for discussion of the elements of loitering.)

Answer 335

When defendant is seen pushing a lawnmower down the street around midnight, and he runs when the police approach, the police have probable cause to make a loitering arrest. // J.M.C. v. S, 956 So. 2d 1235 (4th DCA 2007), 32 F.L.W. D1348 (5/23/2007)

Answer 336

(See B.J. v. S., 951 So. 2d 100 (4th DCA 2007), 32 F.L.W. D717 (3/14/2007) for discussion of the sufficiency of evidence in a loitering case.)

Answer 337

At 1:00 a.m. an LEO saw two juveniles in the parking lot of a hospital near a dumpster. The officer approached and asked why they were there, and one said they were looking for water. Both identified themselves and did not try to flee. Held: The officer properly arrested defendant for loitering. // S.J. v. S., 50 So. 3d 102 (4th DCA 2010), 35 F.L.W. D2826 (12/15/2010)

Answer 338

LEOs responded to a location regarding a call about drug sales. They got to a parking lot, and saw defendant walking toward them. She turned and started to walk away, the the officers followed her in their car. She ducked behind a van, they stopped her and she said she was there to buy drugs. She was arrested for loitering, and a search incident to arrest revealed drugs. Held: At the time the officers saw the defendant, she was not committing any crime and nothing about her conduct caused any alarm. While there is presumption of alarm if the person flees or conceals himself, the conduct occurred after they began to pursue her. The court errs in refusing suppression. // Hollingsworth v. S., 991 So. 2d 990 (4th DCA 2008), 33 F.L.W. D2311 (10/1/2008)

Answer 339

LEO got a call that two white males where trying car door handles in a neighborhood at 3:00 a.m. He went there, saw defendant walking down the street carrying a small safe, and located the codefendant. The officer detained them, and further investigation revealed a burglary. Held: The court errs in granting suppression. The time of day, the fact that defendant and codefendant matched the tip, and walking down the street carrying a safe provides sufficient suspicion to allow a dentition. // S. v. Quinn, 41 So. 3d 1011 (5th DCA 2010), 35 F.L.W. D1773 (8/6/2010)

Answer 340

Defendant’s presence in a residential neighborhood late at night in an area known for burglaries, where there had been a recent report of criminal activity, does not support a charge of loitering. // LEO received a report of a prowler at 3:30 a.m. in a residential neighborhood. He located defendant two blocks from the report. Defendant was wearing all black, and he gave a vague description of what he was doing there. Held: Court errs in finding defendant guilty of loitering (cases cited). // D.S.D. v. S., 997 So. 2d 1191 (5th DCA 2008), 33 F.L.W. D2872 (12/19/2008)

Answer 341

(See Russ v. S., 832 So. 2d 901 (1st DCA 2002), 28 F.L.W. D18 (12/19/2002) for extensive discussion of sections 104.061 and .0515, regarding crimes involving absentee ballot fraud.)

Answer 342

(See Bowen v. S., ___ So. 2d ___, 28 F.L.W. D2144 (2d DCA 9/10/2003) for extensive discussion of the elements of accessory after the fact.)

Answer 343

(See Wilson v. S., 824 So. 2d 335 (4th DCA 2002), 27 F.L.W. D1936 (8/28/2002) for discussion of the sufficiency of circumstantial evidence used to show that defendant, in an accessory after the fact case, knew that a crime had been committed.)

Answer 344

The crime of accessory after the fact requires some overt action by the defendant. Lying to the police, which goes beyond merely disavowing knowledge or refusing to cooperate, can support a conviction for accessory after the fact. Merely disavowing knowledge or refusing to cooperate does not constitute a crime. // Melahn v. S., 843 So. 2d 929 (5th DCA 2003), 28 F.L.W. D779 (3/21/2003)

Answer 345

Section 828.12(2), felony cruelty to animals, is a general intent crime that does not require proof of intent to inflict a cruel death or unnecessary pain. The statute requires only that the act which has such a result be done intentionally. The statute is not unconstitutional on the ground that it does not require a specific intent. // (See this case for extensive discussion of intentionality in criminal statutes.) // •Reynolds v. S., 842 So. 2d 46 (Fla. 2002), 27 F.L.W. S1050 (12/19/2002) // approving Reynolds v. S., 784 So. 2d 509 (1st DCA 2001) // reversing State v. Simbach, 742 So. 2d 365 (2d DCA 1999)

Answer 346

Defendant is properly convicted of animal cruelty when he shoots an opossum that was in his garage several times with a BB gun, resulting in the need to euthanize the animal. // (See this case for comparison between the laws relating to animal cruelty and laws permitting hunting.) // Bartlett v. S., 929 So. 2d 1125 (4th DCA 2006), 31 F.L.W. D1449 (5/24/2006)

Answer 347

Where a juvenile sets fire to a locked part of a school during a time after school but when there were people in the building, the child is properly convicted of first-degree arson under §806.01(1)(b), which applies to structures other than dwellings where persons are normally present during normal hours of occupancy. // I.M. v. S., 917 So. 2d 927 (1st DCA 2005), 30 F.L.W. D2800 (12/14/2005)

Answer 348

Second degree arson is not a necessarily included lesser of first degree arson, nor is criminal mischief a category I lesser. // While a structure is not always a dwelling, a dwelling is always a structure. When the state charges arson of a dwelling, it necessarily includes an allegation that the dwelling is also a structure, and thus includes sufficient allegation for 2d degree arson. // Criminal mischief applies only to damage done to the property of another. When there is conflicting evidence regarding who own a mobile home (the defendant or his mother), but the defendant insisted that the home belonged to him, the court properly refuses to give the instruction. // Moore v. S., 932 So. 2d 524 (4th DCA 2006), 31 F.L.W. D1675 (6/21/2006)

Answer 349

Defendant obtained free bottled water following a hurricane and then resold the water in in convenience store. Held: Defendant does not commit cheating under §817.29. // (See this case for extensive discussion of the cheating statute.) // •Darwish v. S., 937 So. 2d 789 (2d DCA 2006), 31 F.L.W. D2354 (9/13/2006)

Answer 350

LEO got a report that defendant had videotaped nude children, and during a voluntary search he found the tape. Based on the tape, he applied for a search warrant to seize the defendant’s computer, alleging that people who video children frequently possess child pornography on their computers. The police seized the computer and disks, and found erased images. Held: The video corroborated only the charge of lewd act, it did not provide evidence of possession of computer images of pornography. The warrant was insufficient to sustain a finding of probable cause. // Burnett v. S., 848 So. 2d 1170 (2d DCA 2003), 28 F.L.W. D1179 (5/16/2003)

Answer 351

Court errs in dismissing child pornography charges against a grandmother who possessed a photo of her 6-year old grandson holding his erect penis. // S. v. Fernandez, 837 So. 2d 565 (2d DCA 2003), 28 F.L.W. D468 (2/12/2003)

Answer 352

Nudity alone does not constitute sexual conduct for possession of child pornography purposes. // S. v. Pasko, 815 So. 2d 680 (2d DCA 2002), 27 F.L.W. D765 (4/3/2002)

Answer 353

A temporary internet file on a computer does not constitute “possession” of the file until it is downloaded and saved. // Strouse v. C., 932 So. 2d 326 (4th DCA 2006), 31 F.L.W. D421 (2/8/2006)

Answer 354

In a possession of child pornography case, the state is required to prove that the images are actual children and are not computer-generated. // The issue whether images depict actual children is an issue of fact for the jury, and the court does not err in refusing to grant a c(4) motion on that issue. // Jalbert v. S., 906 So. 2d 337 (5th DCA 2005), 30 F.L.W. D1672 (7/8/2005)

Answer 355

(See S. v. Cook, 905 So. 2d 1013 (2d DCA 2005), 30 F.L.W. D1639 (7/1/2005) for discussion of when a prior contracting without a license offense meets the requirements for turning a violation of §489.127(2)(b) into a felony.)

Answer 356

(See J.G. v. S., 915 So. 2d 274 (4th DCA 2005), 30 F.L.W. D2750 (12/7/2005) for a discussion of the elements of corruption by threat.)

Answer 357

The value of property damaged is not an element of criminal mischief. When the only evidence of value is the victim’s statement of an estimate he received to fix his car, the court errs in finding value based on that hearsay. // When certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory threshold is met, value could be proven. However, when the court does not state that its conclusion regarding value is based on life experience, the finding of value is reversed. // T.B.S. v. S., 935 So. 2d 98 (2d DCA 2006), 31 F.L.W. D2091 (8/9/2006)

Answer 358

The court errs in finding defendant guilty of criminal mischief where the evidence shows he pulled down an already damaged fence, and in doing so he did no additional damage to the fence. // J.W.S. v. S., 899 So. 2d 1276 (2d DCA 2005), 30 F.L.W. D1069 (4/27/2005)

Answer 359

The court errs in finding felony criminal mischief where the victim’s value determination is based on hearsay estimates of the cost of repair. The court may not exclude testimony about the estimates, but still permit the victim’s statements about value. // S.P. v. S., 884 So. 2d 136 (2d DCA 2004), 29 F.L.W. D1632 (7/14/2004)

Answer 360

Where the victim testifies that the damage to his property was $1,200, but no repair estimates are given and the damage is not obviously over $1,000, the court errs in adjudicating the defendant guilty of felony criminal mischief. // A.D. v. S., 866 So. 2d 752 (2d DCA 2004), 29 F.L.W. D450 (2/18/2004)

Answer 361

Criminal mischief is not a specific intent crime. The defendant need not have the specific intent to damage the property involved to commit the crime. Thus, when defendant steals a motorcycle and accidentally damages it, he commits criminal mischief. // M.H. v. S., 936 So. 2d 1 (3d DCA 2006), 31 F.L.W. D982 (4/5/2006)

Answer 362

(See R.C.R. v. S., 916 So. 2d 49 (4th DCA 2005), 30 F.L.W. D2760 (12/7/2005) for discussion of the elements of felony criminal mischief and the ways the state can prove value of the property damaged.)

Answer 363

Defendant attacked a store clerk while she was calling the police, and the phone broke. Held: Because there was no evidence that defendant's attack was on the phone, as opposed to the clerk, he does not commit criminal mischief. // (See this case for discussion of the elements of criminal mischief.) // Sanchez v. S., 909 So. 2d 981 (5th DCA 2005), 30 F.L.W. D2145 (9/9/2005)

Answer 364

Speech alone generally will not support a disorderly conduct conviction. However, protected speech coupled with defendant’s physical actions can support a conviction. Yelling obscenities at a police officer does not constitute disorderly conduct. // Barry v. S., 934 So. 2d 656 (2d DCA 2006), 31 F.L.W. D2065 (8/4/2006)

Answer 365

To commit the offense of disrupting a school function, the state must show that the child intended to disrupt the school. Where two students get into a fight in the bathroom, and it does not impede the progress of normal school functions, the crime is not committed. // A.M.P. v. S., 927 So. 2d 97 (5th DCA 2006), 31 F.L.W. D1067 (4/13/2006)

Answer 366

Defendant was a technician in a psychiatric ward. He was directed by the treating doctor to monitor constantly one dangerous patient, and to monitor at 15-minute intervals another patient. He could not physically do both, and the unmonitored patient died of a heart attack. The defendant was charged with neglect of a disabled person. Held: The court erred in failing to grant a JOA. The defendants actions were neither intentional nor culpably negligent. // Jones v. S., 912 So. 2d 686 (1st DCA 2005), 30 F.L.W. D2476 (10/25/2005)

Answer 367

(See Bernau v. S., 891 So. 2d 1229 (2d DCA 2005), 30 F.L.W. D382 (2/9/2005) for the reversal of a conviction for exploitation of the elderly where the state’s evidence fails to show that defendant used any threats or intimidation to obtain money from his elderly parents.)

Answer 368

Where the state presents evidence only that defendant cashed a check written by an elderly person, but does not present any evidence of what happened to the money, evidence of intent to commit exploitation of elderly is insufficient and conviction is reversed. // McNarrin v. S., 876 So. 2d 1253 (4th DCA 2004), 29 F.L.W. D1605 (7/7/2004)

Answer 369

Defendant cannot be convicted of both grand theft and exploitation of the elderly when the convictions relate to the same acts of taking money. // Williams v. S., 823 So. 2d 145 (5th DCA 2002), 27 F.L.W. D1339 (6/7/2002)

Answer 370

Defendant’s act of dropping cocaine rocks and tossing the container on the ground does not constitute evidence tampering. Where the evidence is easily retrieved, there is no evidence tampering. // Obas v. S., 935 So. 2d 38 (4th DCA 2006), 31 F.L.W. D1860 (7/12/2006)

Answer 371

An officer received a call that a person was at a specific location in possession of cocaine. The officer went there and saw a person matching the clothing description. The officer said he saw rock cocaine in his mouth, and he refused to spit it out. No cocaine was recovered. During trial on tampering with evidence, the officer testified that in his experience, people frequently conceal cocaine in their mouths. Held: The general criminal behavior testimony is improper, and the conviction is reversed. // Griffin v. S., 872 So. 2d 990 (4th DCA 2004), 29 F.L.W. D1151 (4/12/2004)

Answer 372

Where defendant walks around a store in very short shorts, resulting in his penis hanging out, he is properly convicted of exposure. // Ross v. S., 876 So. 2d 684 (4th DCA 2004), 29 F.L.W. D1511 (6/23/2004)

Answer 373

Failure to appear // 35 // To convict for failure to appear under §843.15(1)(a), there must be proof of willfulness beyond a reasonable doubt. // Williams v. S., 876 So. 2d 27 (1st DCA 2004), 29 F.L.W. D1206 (5/18/2004)

Answer 374

A defendant cannot be convicted of failing to appear at sentencing when he was never charged with the offense. The conviction is fundamental error. // Dooley v. S., 933 So. 2d 730 (4th DCA 2006), 31 F.L.W. D1997 (7/26/2006)

Answer 375

Defendant may not be adjudicated guilty of failure to appear when he is not formally charged with that crime. // Frazier v. S., 871 So. 2d 1036 (4th DCA 2004), 29 F.L.W. D1097 (5/5/2004)

Answer 376

Where it is clear that defendant received $70 for items sold to a pawnbroker, conviction for F2 false verification to a pawnbroker (§539.001(8)(b)3d.) is improper. Conviction for that offense, which requires receipt of over $300, is fundamental error. // Stanford v. S., 833 So. 2d 174 (3d DCA 2002), 27 F.L.W. D2499 (11/20/2002)

Answer 377

Where defendant signs a pawnbroker form stating in faint type on the back of the form that the items he was pawning were not stolen, and above his signature is the statement that he had read the foregoing document and the facts in it are true, defendant can be liable under §539.001(8)(b)8 for presenting a false verification of ownership. // Willful blindness applies in a case where defendant does not read a form but signs with an attestation that he has read the form and the statements in it are true. // •Hale v. S., 838 So. 2d 1185 (5th DCA 2003), 28 F.L.W. D293 (1/24/2003)

Answer 378

Section 316.650(9) prohibits the introduction of traffic citations into evidence in any trial. That statute is designed to prevent the use of a citation as evidence in a traffic case; it does not prevent the admissibility of a ticket when the person signing the ticket is charged with forgery. // (See this case for discussion of statutory interpretation rules in cases where the statute is unambiguous on its face, but applying the statute in a different context leads to an absurd result.) // Maddox v. S., 923 So. 2d 442 (Fla. 2006), 31 F.L.W. S24 (1/12/2006) // reversing Dixon v. S., 812 SO. 2d 595 (1st DCA 2002) // approving Maddox v. S., 862 So. 2d 783 (2d DCA 2003)

Answer 379

The decision to grant or deny a JOA is reviewed on a de novo standard. // If the state presents competent evidence going to each element of a crime, the motion for JOA should be denied. The court should not grant a JOA unless the evidence viewed in the light most favorable to the state fails to establish a prima facie case of guilt. // A person who utters a forgery does not also commit forgery on a principal theory. If there is no evidence that defendant actually counterfeited a check, he cannot be convicted of forgery. Merely presenting the forged check is the crime of uttering a forgery; it is not evidence of forgery. // Watkins v. S., 826 So. 2d 471 (1st DCA 2002), 27 F.L.W. D2065 (9/20/2002)

Answer 380

Defendant’s act of filling his name into a check already signed by the maker constitutes forgery. // Willis v. S., 857 So. 2d 297 (3d DCA 2003), 28 F.L.W. D2224 (9/24/2003)

Answer 381

In a charge of giving a false name under §901.36, the state must show that the defendant was lawfully arrested or detained. It is not a crime to give a false name during a consensual field interview. // Bordelon v. S., 908 So. 2d 543 (1st DCA 2005), 30 F.L.W. D1842 (7/29/2005)

Answer 382

To constitute a crime under §901.36, giving a false name, the name must be given while under arrest or lawful detention. Giving a false name when the police are investigating a traffic accident does not constitute a crime. // Dubois v. S., 932 So. 2d 298 (2d DCA 2006), 31 F.L.W. D154 (1/4/2006)

Answer 383

Before convicting defendant of giving false information to an LEO under §901.36, the defendant must be lawfully arrested. Where defendant’s arrest for loitering was not proper, he cannot be convicted for giving false information. // Gillen v. S., 927 So. 2d 1083 (4th DCA 2006), 31 F.L.W. D1382 (5/17/2006)

Answer 384

Recantation is a defense to giving a false name under §901.36(1). Where a child gives a false name initially, and provides his true name within 10-15 minutes, before he was arrested, transported or booked, the crime is not committed. // A.A.R. v. S., 926 So. 2d 463 (4th DCA 2006), 31 F.L.W. D1096 (4/19/2006)

Answer 385

LEO observed and hand-to-hand transaction in a drug dealing area. He approached one of the participants, and asked his name. The defendant gave a name, the officer ran a check, and could not locate a DL with that name. He got defendant’s license and found a different name, and arrested him. A search revealed drugs. Held: LEO may not arrest for giving a false name under § 901.36 unless the defendant was properly detained at the time. Because the officer had no reasonable suspicion of any crime, the defendant was free to give any name he wanted, and he could not be arrested for obstruction. // Belsky v. S., 831 So. 2d 803 (4th DCA 2002), 27 F.L.W. D2630 (12/11/2002)

Answer 386

A pyramid scheme constitutes a “lottery” under §849.09. The fact that pyramid schemes are addressed in §849.091 does not remove them from the general lottery statute. // S. v. Croy, 813 So. 2d 993 (1st DCA 2002), 27 F.L.W. D636 (3/20/2002)

Answer 387

(See S. v. Cyphers, 873 So. 2d 471 (2d DCA 2004), 29 F.L.W. D1136 (5/12/2004) for extensive discussion of §§849.01 and 849.15 relating to the constitutionality of gambling statutes.)

Answer 388

Obscene or harassing calls must be made to a place where the victim has an expectation of privacy under § 365.16(1). When the calls are made to the victim’s place of business, which is in his home, the statute is not violated. // Avrich v. S., 936 So. 2d 739 (3d DCA 2006), 31 F.L.W. D2208 (8/23/2006)

Answer 389

Defendant called an assistant attorney general and left three voice mail messages regarding her handling of his case. She reported the messages to the police, and defendant was charged with violating his probation by committing the crime of harassing phone calls. Held: The calls were not made solely to harass the recipient, as required by the statute, and the court errs in finding a violation. // Durie v. S., 901 So. 2d 171 (5th DCA 2005), 30 F.L.W. D563 (2/25/2005)

Answer 390

Section 843.085(1) prohibiting the wearing of police uniform or badges is unconstitutional. It is too vague because it allows conviction based on a police officer’s discretion and it violates substantive due process by punishing innocent activities. The statute contains no intent-to-deceive element, and thus a person who wears a shirt with the prohibited words on it could be convicted. // (See this case, including dissent, for extensive discussion of overbreadth and due process consideration in determining whether a statute is constitutional.) // Sult v. S., 906 So. 2d 1013 (Fla. 2005), 30 F.L.W. S470 (6/23/2005) // approving Rodriguez v. S., 29 F.L.W. D241 (3d DCA 1/21/04

Answer 391

Section 843.085(1), prohibiting the wearing of any badge or symbol of any law enforcement agency, is unconstitutionally overbroad. The statute is based on the content of an expression, and is not sufficiently narrowly drawn because it does not contain an intent requirement. // (See this case for discussion of overbreadth rules.) // •Rodriguez v. S., 906 So. 2d 1082 (3d DCA 2004), 29 F.L.W. D241 (1/21/2004)

Answer 392

Defendant, as an escaped prisoner, can be a principal to the crime of harboring an escaped prisoner when he allows another person to harbor him. The evidence showed that defendant participated in concocting an elaborate plan for an escape, and then worked with his codefendant to conceal himself. Defendant is properly found to be a principal. // Sigler v. S., 805 So. 2d 32 (4th DCA 2001), 26 F.L.W. D2880 (12/5/2001)

Answer 393

A fight occurred on campus that disrupted the school. Defendant was charged with interfering with the orderly administration of the school, but the state failed to show that he was involved in the fight. Held: Court errs in finding defendant guilty. // C.K. v. S., 850 So. 2d 636 (1st DCA 2003), 28 F.L.W. D1702 (7/24/2003)

Answer 394

A child who refuses to calm down in class and continues to disrupt the class for at least 20 minutes is properly convicted of disrupting an educational institution. // T.J. v. S., 867 So. 2d 1238 (5th DCA 2004), 29 F.L.W. D641 (3/12/2004)

Answer 395

Section 403.413(4)(c), making littering illegal, prevents an owner from dumping litter on his own property. // S. v. Davis, 838 So. 2d 696 (5th DCA 2003), 28 F.L.W. D662 (3/7/2003)

Answer 396

In an attack on the facial validity of a statute, the challenger must establish that there is no set of circumstances under which the statute would be valid. Except for a first amendment challenge, the fact that a statute might be unconstitutional under some hypothetical set of facts is insufficient. A facial challenge considers only the text of the statute, not its application to a specific set of circumstances, and the challenger must show that the statute poses a total and fatal conflict with applicable constitutional provisions. // In a first amendment challenge, content-based speech restrictions will not survive strict scrutiny unless the state can show compelling reasons and that it chose the least restrictive means to achieve its goal. // The state has a compelling interest in protecting children from sexual exploitation. Speech used to further sexual exploitation is not protected under the first amendment. // In a Commerce Clause challenge to a statute, the challenge will not succeed if both the defendant and victim live in the same state. // Section 847.0135(3), prohibiting the use of a computer to lure a child to commit a sexual act, is constitutional on all grounds. // The fact that the “victim” of a child luring offense is in fact an adult detective does not render the statute unlawful. The defense of legal impossibility has not been adopted in Florida. // •Cashatt v. S., 873 So. 2d 430 (1st DCA 2004), 29 F.L.W. D1026 (4/26/2004)

Answer 397

When defendant has discussions with an LEO posing on the internet as a young boy, each separate discussion can be a separate violation of §847.1035(3), using a computer to seduce a child. // Hammel v. S., 934 So. 2d 634 (2d DCA 2006), 31 F.L.W. D2027 (8/2/2006)

Answer 398

Section 847.0135(2)(d), which prohibits the exchange of information for the purpose of soliciting contact with a minor includes a mens rea requirement, and the state must allege and prove that the information was exchanged by the defendant knowing that it related to contact with a minor. // Wegner v. S., 928 So. 2d 436 (2d DCA 2006), 31 F.L.W. D1206 (4/28/2006)

Answer 399

Section 847.0135(3), which prohibits using a computer to seduce, lure, or attempt to seduce or lure a child, or a person the defendant believes to be a child, is not unconstitutionally overbroad. The fact that the person contacted by the defendant was a police officer, and not a child, does not prevent conviction under the statute. // Karwoski v. S., 867 So. 2d 486 (4th DCA 2004), 29 F.L.W. D431 (2/18/2004)

Answer 400

(See Netherly v. S., 804 So. 2d 433 (2d DCA 2001), 26 F.L.W. D2532 (10/19/2001) for discussion of the nature of evidence required to prove misapplication of construction funds.)

Answer 401

The official misconduct statute, §839.25, does not apply to a candidate for public office. // Clement v. S., 895 So. 2d 446 (2d DCA 2005), 30 F.L.W. D318 (2/2/2005)

Answer 402

(See •S. v. J.P., 907 So. 2d 1101 (Fla. 2005), 30 F.L.W. S331 (5/5/2005)) for the ruling that the Tampa and Pinellas Park juvenile curfew ordinances are unconstitutional due to violations of the child’s rights to privacy and freedom of movement.)

Answer 403

Duress and necessity are defense to perjury. // The standard duress instruction, which requires a finding that the threatened harm is imminent and impending, applies in the context of a perjury charge. Thus, where defendant claims he was threatened into lying in a deposition, to make out the defense he must show that he was at that time being threatened with a “metaphorical” gun. // Pflaum v. S., 879 So. 2d 93 (4th DCA 2004), 29 F.L.W. D1773 (8/4/2004)

Answer 404

While a complainant who complaints about an attorney to the Florida Bar has absolute immunity from civil suits for defamation, there is no similar immunity from prosecution for perjury. (See this case for extensive discussion of the extent of immunity enjoyed by persons who make complaints to the Bar against lawyers.) // S. v. Rutherford, 863 So. 2d 445 (4th DCA 2004), 29 F.L.W. D168 (1/7/2004)

Answer 405

Recantation is a defense to perjury. Thus, where defendant counsels his client to commit perjury in a deposition, and the client lies but later recants, the defendant cannot be charged as a principle to perjury. // (See this case for extensive discussion of principles in perjury cases.) // S. v. Mark Marks, P.A., 833 So. 2d 249 (4th DCA 2002), 28 F.L.W. D108 (12/26/2002)

Answer 406

(See S. v. Calabrese, 840 So. 2d 1068 (5th DCA 2003), 28 F.L.W. D351 (1/31/2003) for discussion of materiality in perjury prosecutions.)

Answer 407

Upon being arrested, defendant was asked repeatedly if he possessed any contraband, and he said no. He was taken to the jail and searched, and marijuana was found. Defendant was charged with introducing contraband into the jail. Held: Under the circumstances, the defendant voluntarily brought in the drugs, and the court properly denied a motion to dismiss. // Manna v. S., 803 So. 2d 866 (4th DCA 2002), 27 F.L.W. D109 (1/2/2002)

Answer 408

The court properly adds 18 points in a throwing deadly missile case. The use of a firearm is not an essential element of the crime. // Robertson v. S., 807 So. 2d 708 (4th DCA 2002), 27 F.L.W. D303 (1/30/2002)

Answer 409

The crime of solicitation to commit second degree murder does not exist in Florida. Where defendant is charged with solicitation to commit first degree murder, he cannot be convicted of solicitation to commit 2d degree murder as a lesser. // •Jones v. S., 908 So. 2d 615 (4th DCA 2005), 30 F.L.W. D2002 (8/24/2005)

Answer 410

The crime of solicitation is complete when the defendant with intent to do so has enticed or encouraged another to commit a crime, though the crime need not be completed. Defendant is properly convicted as a principal to criminal solicitation when he aids or encourages another person to solicit the commission of a crime. // Jenerette v. S., 898 So. 2d 1144 (5th DCA 2005), 30 F.L.W. D892 (4/1/2005)

Answer 411

Knowledge that a restraining order is in effect is an essential element of aggravated stalking after the entry of a domestic violence injunction, and the failure to instruct on the element gets reversal. // Gaspard v. S., 848 So. 2d 1161 (1st DCA 2003), 28 F.L.W. D888 (4/3/2003)

Answer 412

Stalking is a continuing crime that is complete when the alleged course of conduct ends. If the conduct began more than two years prior to the charging date, but ended within the two-year statute of limitations, the state can proceed to prove all of the claimed incidents. // Rodriguez v. S., 828 So. 2d 1060 (2d DCA 2002), 27 F.L.W. D2316 (10/23/2002)

Answer 413

There is no requirement of contact between the victim and defendant to sustain a stalking charge. The harassment needed to sustain the charge can be accomplished without any contact between the parties (here, by disseminating medical records of the victim to other people). // Seitz v. S., 867 So. 2d 421 (3d DCA 2004), 29 F.L.W. D210 (1/14/2004)

Answer 414

Defendant’s act of calling the victim repeatedly from jail is sufficient to convict of stalking. // Jordan v. S., 802 So. 2d 1180 (3d DCA 2001), 27 F.L.W. D56 (12/26/2001)

Answer 415

To convict of stalking, the state must show that the defendant had knowledge of the injunction against him. Where knowledge is disputed at trial, the failure to give knowledge as an element is fundamental error. // Cazeau v. S., 873 So. 2d 528 (4th DCA 2004), 29 F.L.W. D1214 (5/19/2004)

Answer 416

Making repeated complaints to law enforcement and administrative agencies regarding another person does not constitute stalking. Making complaints to government agencies is a constitutionally protected right. // Curry v. S., 811 So. 2d 736 (4th DCA 2002), 27 F.L.W. D485 (2/27/2002)

Answer 417

Where the evidence shows that defendant, a student, bothered another student daily for two months by hitting her, calling her names, and threatening her, and then when the victim reported the activity the defendant made a threat against her that was heard by the school resource officer, the evidence is sufficient to sustain a conviction for aggravated stalking with a credible threat under §784.048(3). // D.L.D. v. S., 815 So. 2d 747 (5th DCA 2002), 27 F.L.W. D1012 (5/3/2002)

Answer 418

A child who is required to be at school does not commit trespass when he is ordered to leave the school and he does not leave before his parent is contacted. // E.W. v. S., 873 So. 2d 485 (1st DCA 2004), 29 F.L.W. D1176 (5/13/2004)

Answer 419

The elements of trespassing are (1) willful entering or remaining in property; (2) the property is not a structure of conveyance; (3) the person is not authorized, licensed or invited; and (4) the person has noticed against entering or remaining. // K.S. v. S., 840 So. 2d 1116 (1st DCA 2003), 28 F.L.W. D771 (3/21/2003)

Answer 420

(See Lewis v. S., 932 So. 2d 357 (2d DCA 2006), 31 F.L.W. D820 (3/17/2006) for extensive discussion of the requirements for “posting” land and for the posting requirements for trespassing on a designated construction site.)

Answer 421

Witness responded to an ad in the paper offering a house for rent. Defendant answered the phone, and the witness met with defendant and a third party regarding the rental. Defendant filled out the form but the third party signed as the lessor. Neither defendant nor third party had authority to rent the house. Held: Defendant is improperly convicted of trespassing as a principal. The evidence is consistent with defendant’s claim that he did not know the third person had no authority to rent the house, and the court should have granted a JOA. // Acord v. S., 841 So. 2d 587 (2d DCA 2003), 28 F.L.W. D830 (3/28/2003)

Answer 422

A domestic violence injunction serves as notice not to go to the victim’s residence, and defendant’s appearance on her property is sufficient to constitute a trespass. // Jordan v. S., 802 So. 2d 1180 (3d DCA 2001), 27 F.L.W. D56 (12/26/2001)

Answer 423

Defendant’s act of standing in the front yard of a duplex does not constitute trespassing in the absence of a warning to leave, fencing, posting, or cultivation. // Baker v. S., 813 So. 2d 1044 (4th DCA 2002), 27 F.L.W. D900 (4/17/2002)

Answer 424

Circumstantial evidence is sufficient to convict of unlawful compensation. Where a police officer pressures a woman into having sex, but there is no explicit agreement that the sex is in exchange for not giving the woman a ticket, circumstantial evidence can be used to show the existence of the agreement. // S. v. Castillo, 877 So. 2d 690 (Fla. 2004), 29 F.L.W. S167 (4/22/2004) // reversing Castillo v. S., 835 So. 2d 306 (3d DCA 2002)

Answer 425

When the state fails to show that defendant was served with an injunction for protection, or prove that he otherwise had notice, the court errs in failing to grant a JOA in a charge of violation of a restraining order. // Robinson v. S., 840 So. 2d 1138 (1st DCA 2003), 28 F.L.W. D841 (3/27/2003)

Answer 426

Defendant may not be convicted of both battery and violation of a domestic violence injunction for the same conduct. // Doty v. S., 884 So. 2d 547 (4th DCA 2004), 29 F.L.W. D2468 (11/3/2004)

Answer 427

When defendant is not served with a permanent domestic violence injunction, he cannot subsequently be charged with violating the injunction. // Despite the failure to serve him, defendant can be charged with aggravate stalking under §784.048(4). There is no requirement that the defendant actually be served before charging him under that section. // Livingston v. S., 847 So. 2d 1131 (4th DCA 2003), 28 F.L.W. D1514 (6/25/2003)

Answer 428

To convict for witness tampering, the state must show that defendant made a communication that he intended to cause or induce another to withhold testimony. Where the defense fails to present an explanation for defendant’s actions that is consistent with the evidence, circumstantial evidence is sufficient to sustain a conviction. // Pollen v. S., 834 So. 2d 380 (3d DCA 2003), 28 F.L.W. D221 (1/15/2003)

Answer 429

To constitute the crime of witness tampering, the state must show that the defendant knew that an investigation was pending and then destroyed or concealed evidence, impairing its availability for the investigation. Defendant’s act of trying and failing to swallow a bag of marijuana constitutes an attempted tampering, not a completed act. // A.F. v. S., 850 So. 2d 667 (4th DCA 2003), 28 F.L.W. D1768 (7/30/2003)

Answer 430

Defendant’s acts of stomping around and threatening his community control officer are sufficient to sustain a conviction for witness tampering under §914.23(2). // C.S. v. S., 869 So. 2d 637 (5th DCA 2004), 29 F.L.W. D757 (3/26/2004)

Answer 431

Under § 832.07(1)(a), the delivery of a check which is refused payment by the bank, is prima facie evidence of intent to defraud. Where defendant defends on the ground that he was unaware of his corporation’s financial situation at the time he wrote the check, the jury is entitled to decide if the argument is plausible. // By giving notice under § 832.07(1), the state can get a presumption of intent. The failure to give notice does not preclude prosecution on the charge. // A corporate officer which issues a bad check can be held criminally liable for the check. // Wells v. S., 807 So. 2d 132 (3d DCA 2002), 27 F.L.W. D295 (1/30/2002)

Answer 432

(See S. v. Moore, 892 So. 2d 1218 (1st DCA 2004), 30 F.L.W. D441 (2/15/2004) for discussion of the sufficiency of evidence to sustain a charge of fraud involving a security interest under §817.562(2)).

Answer 433

Section 370.093(2)(b), prohibiting the use of a monofilament gill net, is not unconstitutionally vague. // S. v. Nichols, 892 So. 2d 1221 (1st DCA 2004), 30 F.L.W. D446 (2/15/2004)

Answer 434

Defendant’s statement that he was going to “blow up” the school sometime in the future does not constitute a violation of §790.163. That statute relating to making false reports of the placement of a bomb, relates to bomb scares and not to indefinite threats in the future. // D.B. v. S., 825 So. 2d 1042 (1st DCA 2002), 27 F.L.W. D2048 (9/13/2002)

Answer 435

(See J.S.G. v. S., 927 So. 2d 187 (2d DCA 2006), 31 F.L.W. D1209 (4/28/2006) for discussion of §327.33(3), relating to failure to comply with Navigation Rule 5, 33 U.S.C. § 2005, resulting in a boating accident.)

Answer 436

Making a false report of a crime under §817.49 is a mandatory lesser of making a false report of a capital crime under §837.05(2). // Boland v. S., 893 So. 2d 683 (2d DCA 2005), 30 F.L.W. D487 (2/18/2005)

Answer 437

In investigating a claim of making a false child abuse report, the police may not play the tape recording of the abuse call for the victim of the call to identify the voice. Under §39.202, all calls to the abuse registry are confidential, and may not be released without written consent except to those people listed in the statute. The statute does not permit disclosure to the alleged perpetrator. // Under §39.206(9), a person who makes a false report is not entitled to confidentiality. However, until the call is determined to be false, it remains confidential. // S. v. White, 867 So. 2d 594 (2d DCA 2004), 29 F.L.W. D554 (3/5/2004)

Answer 438

Section 409.920, Florida’s Medicaid anti-kickback statute, is unconstitutional. The statute does not follow the federal statute and criminalizes activity that the federal regulations permit. // S. v. Harden, 873 So. 2d 352 (3d DCA 2004), 29 F.L.W. D593 (3/10/2004)

Answer 439

Mere possession of counterfeit currency does not violate §831.11 (possession of forged bills) in the absence of evidence of intent to pass the bills. // Mullins v. S., 855 So. 2d 720 (3d DCA 2003), 28 F.L.W. D2309 (10/8/2003)

Answer 440

(See S. v. Miketa, 824 So. 2d 970 (3d DCA 2002), 27 F.L.W. D1876 (8/21/2002) for discussion of section 791.06, illegal sale of fireworks.)

Answer 441

Section 859.01, which prohibits the poisoning of food, is not unconstitutionally vague for failing to define “poison.” // Foster v. S., 937 So. 2d 742 (4th DCA 2006), 31 F.L.W. D2538 (10/5/2006)

Answer 442

There is no crime of “attempted poisoning” under §859.01. The definition of poisoning food or water includes an attempt, so there is no crime of attempted poisoning. // Foster v. S., 875 So. 2d 1253 (4th DCA 2004), 29 F.L.W. D1210 (5/19/2004)

Answer 443

Under the communications fraud statute (§817.034(1)), the communication itself need not be fraudulent. The statute is violated when an accurate communication is made in furtherance of a scheme to defraud. Thus, where defendant kept business records showing the communications, and no witnesses testified to the content of the communications themselves, the evidence is sufficient to sustain a conviction when the evidence shows that the communications were part of a larger fraud. // (See this case for expression of “concern” that the communications fraud statute can be used to ensnare merely borderline unethical business practices.) // Lewis v. S., 833 So. 2d 812 (4th DCA 2002), 27 F.L.W. D2520 (11/20/2002)

Answer 444

To prove violation of a pretrial release condition, the state must show that defendant was advised of the condition. Evidence showing that the first appearance judge usually states the conditions of release is not sufficient. // Pilorge v. S., 876 So. 2d 591 (5th DCA 2004), 29 F.L.W. D1349 (6/4/2004)

Answer 445

Section 836.10, prohibiting making a written threat to kill, is constitutional. The crime does not require the actual intent to do harm or the ability to carry out the threat. // Saidi v. S., 845 So. 2d 1022 (5th DCA 2003), 28 F.L.W. D1309 (5/30/2003)

Answer 446

(See •Wickham v. S., 998 So. 2d 593 (Fla. 2008), 33 F.L.W. S711 (9/25/2008) for extensive discussion of how the court should handle warnings about possible perjury charges against witnesses who intend to recant their trial testimony in a postconviction proceeding.)

Answer 447

To prove shooting into a building under §790.19, the state must prove that the act was done wantonly or maliciously. Merely proving that defendant committed the act is insufficient. // (See this case for extensive discussion of the meaning of “wantonly or maliciously” in the statute.) // S. v. Kettell, 980 So. 2d 1061 (Fla. 2008), 33 F.L.W. S255 (4/24/2008) // approving Kettell v. S., 950 So. 2d 505 (2d DCA 2007) // reversing Holtsclaw v. S., 542 So. 2d 437 (5th DCA 1989)

Answer 448

Section 1106.63 (2), the felony hazing statute, is not facially void for vagueness as a result of failing to define “serious bodily injury.” Under a void for vagueness analysis, the statute must be impermissibly vague in all of its applications, and where is it not vague as applied to the facts of the case, it is not unconstitutional. // The court errs in giving a jury instruction that describes “serious bodily injury” as “dangerous, grave, grievous, or great, as distinguished from slight.” Injuries can be serious, moderate or slight, and the failure to distinguish between serious and slight is reversible error. // Morton v. S., 988 So. 2d 698 (1st DCA 2008), 33 F.L.W. D1961 (8/8/2008)

Answer 449

Where defendant gives a false name during an encounter, no violation of §901.36 is shown, and the court errs in failing to JOA a charge of giving a false name. Defendant must be lawfully detained before he is required to give a correct name. // K.D. v. S., 43 So. 3d 829 (1st DCA 2010), 35 F.L.W. D1942 (8/25/2010)

Answer 450

Under §815.04(2), a defendant cannot be convicted of unauthorized destruction of computer data when the data is all able to be retrieved. // S. v. Fagg, 41 So. 3d 394 (1st DCA 2010), 35 F.L.W. D1706 (7/30/2010)

Answer 451

Under §775.261, a person designated a violent career criminal must comply with registration requirements. When defendant moves from a permanent address and become homeless, he must notify the driver’s license agency of his move. The fact that he is homeless and has no address to report does not exempt him from the requirements of the statute. // (See this case for comparison of the violent career criminal registration requirements with the sex offender registration requirements.) // S. v. Cutwright, 41 So. 3d 389 (1st DCA 2010), 35 F.L.W. D1708 (7/30/2010)

Answer 452

(See Helms v. S., 38 So. 3d 182 (1st DCA 2010), 35 F.L.W. D1134 (5/20/2010) for discussion of the intent requirement in deriving support from prostitution under §796.05(1) based on the prosecution of the owner of an escort service that advertised on Craigslist.)

Answer 453

The court errs in an aggravated stalking case in instructing the jury that malice can be inferred from the violation of a restraining order. The state must prove that the harassment of the victim was malicious, and merely violating the order does not constitute proof. // Miller v. S., 4 So. 3d 732 (1st DCA 2009), 34 F.L.W. D462 (2/27/2009)

Answer 454

LEO saw defendant in a public restaurant. When the officer approached, defendant placed his hand behind his back. The officer told him to show his hands, and when he did, defendant threw what he had into a urinal. He was charged with attempted tampering with evidence. Held: The evidence is sufficient to sustain conviction (but see dissent). // (See this case, including dissent, for unanimous conclusion that such a prosecution was silly and a waste of resources.) // Anderson v. S., 996 So. 2d 256 (1st DCA 2008), 33 F.L.W. D2841 (12/12/2008)

Answer 455

Where the evidence shows only that the child was involved in a fight at school, and there is no evidence he intended to disrupt the school, the court errs in finding him guilty of disrupting a school function. // M.S.G. v. S., 971 So. 2d 273 (1st DCA 2008), 33 F.L.W. D179 (1/7/2008)

Answer 456

To convict for disorderly conduct based on speech, the defendant’s words must by their very utterance inflict injury or tend to incite an immediate breach of the peace. Or, the words, known to be false, must report some physical hazard in circumstances where the report creates a clear and present danger of bodily harm to others. Merely using vulgar and loud speech in a bank in a way that disturbs other customers does not violate the statute. // Smith v. S., 967 So. 2d 937 (2d DCA 2007), 32 F.L.W. D2128 (9/5/2007)

Answer 457

LEO was asked by an apartment security guard to remove juveniles from the property. He did, and then asked two of them their names so he could issue a trespass warning. They refused, and the officer arrested them for resisting. Held: The officer can, as agent for the property owner, issue a warning without knowing the person’s name. Once they were off the property, they were not trespassing and they were entitled to refuse to identify themselves. // S.N.J. v. S., 17 So. 3d 1258 (2d DCA 2009), 34 F.L.W. D1910 (9/18/2009)

Answer 458

A trespass warning can be given either by the owner or lessee of property or by a police officer on the authority of the owner. Under §810.08, when the officer gives the warning upon request of the owner, he is not acting in a legal capacity but as the agent of the owner. // When an officer is acting as the agent of the owner, he does not have the right to conduct a Terry stop to give the warning. Thus, the failure to give correct information to an officer attempting to give a warning is not resisting. // However, when the defendant has already committed the crime of trespassing outside the presence of the officer, the officer can conduct a Terry stop to give a warning or to investigate the misdemeanor. When the defendant gives a false name under those circumstances, it constitutes resisting and the defendant can be arrested. // Rodriguez v. S., 29 So. 3d 310 (2d DCA 2009), 34 F.L.W. D1673 (8/19/2009)

Answer 459

While the state must prove that defendant had knowledge of the entry of a restraining order to prove aggravated stalking under §784.048(4), the fact that defendant had not been served with the papers does not conclusively show that defendant was unaware. The state is able to show knowledge through other means. // When the state fails to show aggravated stalking due to a failure to prove that defendant was aware of the permanent injunction, defendant may be convicted of simple staking as a lesser. // Canavan v. S., ___ So. 3d ___, 35 F.L.W. D1443 (2d DCA 6/30/2010)

Answer 460

When defendant takes bets in Florida but then places the bets out of Florida, defendant violates the bookmaking statutes, §849.25(1). Florida has jurisdiction to prosecute the crime. // Santoro v. S., 959 So. 2d 1235 (2d DCA 2007), 32 F.L.W. D1564 (6/22/2007)

Answer 461

(See Ellison v. S., 983 So. 2d 1205 (2d DCA 2008), 33 F.L.W. D1385 (5/23/2008) for reversal of a conviction for exploitation of elderly under §825.103(1)(a) and (2)(b) for the failure to prove that the defendant obtained the victim’s property through deception or intimidation.

Answer 462

When the defendant calls the victim to find out when she is going to say to the police about a molestation charge, but there is no evidence he attempted to get her to change her testimony, he is not properly found to have committed witness tampering. // Miller v. S., 958 So. 2d 981 (2d DCA 2007), 32 F.L.W. D1308 (5/18/2007)

Answer 463

(See Kettell v. S., 950 So. 2d 505 (2d DCA 2007), 32 F.L.W. D653 (3/7/2007), approved, S. v. Kettell, 980 So. 2d 1061, 33 F.L.W. S255 (Fla. 4/24/2008) for discussion of the elements of shooting in a dwelling and the proper instructions for that offense.)

Answer 464

(See Franzone v. S., ___ So. 3d ___, 36 F.L.W. D631 (2d DCA 3/25/2011) for extensive discussion of the things that must be proven to establish a violation of §715.07(2)(a)(1) for improperly impounding a vehicle located on private property, based on towing a vehicle that was improperly parked.)

Answer 465

The felony portion of §823.10(1), keeping a public nuisance, does not apply to dwellings. The way the statute is written, it applies only to warehouses, structures, or other buildings, but not dwellings. // Ratliff v. S., ___ So. 3d ___, 36 F.L.W. D637 (2d DCA 3/25/2011)

Answer 466

Consent for the use of another person’s identification information is a defense to the crime under § 817.568(2). Where defendant alleges he had consent to use the victim’s information, and counsel failed to investigate, the allegation is sufficient to get a hearing on a 3.850 motion. // Williams v. S., ___ So. 3d ___, 36 F.L.W. D538 (2d DCA 3/16/2011)

Answer 467

Under §831.02, it is not enough for the state to show that the defendant should have known the item he was passing was a forgery. The state must show that he actually knew. When defendant possesses a forged instrument in good faith and passes it, he does not commit uttering a forgery. // (See this case for discussion of circumstances where defendant received traveler’s checks from a roommate, and the checks turned out to be forgeries, but that evidence shows that defendant did not know the checks were forgeries when he cashed them.) // Defendant does not commit theft when he unknowingly passes a forged traveler’s check and then does not return the money when notified of the forgery. The evidence of intent is insufficient to sustain a conviction. // Ginn v. S., 26 So. 3d 706 (2d DCA 2010), 35 F.L.W. D308 (2/5/2010)

Answer 468

The crime of stalking requires evidence of a course of conduct over a period of time. Thus, defendant can be convicted of only one count when he contacts a victim in violation of an order of protection on separate dates through separate means over a period of three months. // Eichelberger v. S., 949 So. 2d 358 (2d DCA 2007), 32 F.L.W. D609 (2/28/2007)

Answer 469

To commit disorderly conduct by words alone, the evidence must show that the words caused a crowd to gather resulting in safety concerns, or that the words incited the crowd to engage in an immediate breach of peace. Where the evidence shows that defendant actions were merely irritating to the police, the court errs in finding her guilty of disorderly conduct. // C.N. v. S., 49 So. 3d 831 (2d DCA 2010), 35 F.L.W. D2699 (12/8/2010)

Answer 470

(See McGlade v. S., 982 So. 2d 736 (2d DCA 2008), 33 F.L.W. D1168 (4/25/2008) for discussion of the proper jury instructions for practicing midwifery without a license.)

Answer 471

The act of prying screens off of a house does not constitute entry into the house for trespassing purposes. // Keys v. S., 949 So. 2d 1080 (2d DCA 2007), 32 F.L.W. D358 (1/31/2007)

Answer 472

The defendant was warned not to come on the grounds of a school by the school security guard. The state at trial did not show that the school security guard was a “designee” of the principal as required by §810.097(2). Held: The state is not required to show the authority of the person directing the defendant not to enter. Only if the defense challenges the authority of that person is the state required to prove his authority. // D.J. v. S., 43 So. 3d 176 (3d DCA 2010), 35 F.L.W. D2011 (9/8/2010)

Answer 473

To convict for perjury, that allegedly false statement must be one of empirical fact, not opinion, belief, or perception, and the person making the statement does not believe it to be true. // Cohen v. S., 985 So. 2d 1207 (3d DCA 2008), 33 F.L.W. D1740 (7/9/2008)

Answer 474

To convict for trespassing on posted property, the state must show strict compliance with the sign requirement. The failure to show that signs complying with section 810.011(5)(a) were posted gets reversal. // Alvarez v. S., 963 So. 2d 757 (3d DCA 2007), 32 F.L.W. D1633 (7/5/2007)

Answer 475

Defendant was a security guard with a car marked with various law enforcement-type markings, including a light bar. While attending his uncle’s funeral, he blocked traffic with the car, and then drove the car along I-95 on the shoulder with the lights on behind the police escorting the funeral procession. Held: The court errs in granting a c(4) motion on a charge of impersonating a police officer. // S. v. Beaubrun, 36 So. 3d 897 (3d DCA 2010), 35 F.L.W. D1306 (6/9/2010)

Answer 476

The court errs in adjudicating a child guilty of retaliating against a witness under §914.23(1) when the threat was made before any official proceeding. The evidence fails to show that the threat was in retaliation for the witness participating in the proceeding. // R.T. v. S., 34 So. 3d 142 (3d DCA 2010), 35 F.L.W. D902 (4/21/2010)

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