Slack v. State

Summary

The Florida First District Court of Appeal held that the State failed to prove an essential element of fleeing or attempting to elude under section 316.1935(2), Florida Statutes, because it presented no evidence that the patrol vehicle prominently displayed agency insignia and jurisdictional markings. The court reversed the conviction and remanded for entry of judgment on the lesser-included offense under section 316.1935(1).

Holdings

1. Testimony that the deputy was driving a marked patrol car with lights on top, without evidence that the vehicle prominently displayed agency insignia and other jurisdictional markings, was insufficient to establish the charged offense. The trial court therefore erred in denying the motion for judgment of acquittal.
2. Section 316.1935(1) is a necessarily lesser-included offense of section 316.1935(2), notwithstanding that both offenses are third-degree felonies carrying the same penalty. Because the jury was instructed on all elements of subsection (1) and necessarily found those elements when it convicted under subsection (2), the appellate court could direct entry of judgment for subsection (1) under section 924.34.

Questions Presented

1. Whether the evidence was sufficient to establish the agency-insignia and jurisdictional-markings element of fleeing or attempting to elude under section 316.1935(2), Florida Statutes (2006).
2. Whether section 316.1935(1) is a necessarily lesser-included offense of section 316.1935(2), and whether the appellate court could direct entry of judgment on that offense under section 924.34, Florida Statutes (2009), when the jury necessarily found all of its elements.

Disposition

reversed_and_remanded