Florida/Georgia Personal Injury & Workers Compensation

...(February 19, 2009) Before HULL, WILSON and HILL, Circuit Judges. HULL, Circuit Judge: This appeal presents the question of whether a prior state conviction for violating subsection 2 of Florida’s willful fleeing statute, Fla. Stat. § 316.1935(2), is a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C....

...ncreased penalties for Harrison’s three prior convictions. The government filed a sentencing memorandum objecting. The memorandum identified the following three convictions, listed in the PSI, as relevant: (1) a 2003 conviction under Fla. Stat. § 316.1935(3) for fleeing or attempting to elude police at high speed; (2) a 2003 conviction for possession of a controlled substance with intent to sell, manufacture or deliver; and (3) a 2000 conviction under Fla. Stat. § 316.1935(2) for fleeing or attempting to elude police. The government attached copies of the judgments and sentences for all three convictions including the information, written plea agreement, and arrest report for the 2000 conviction under § 316.1935(2).2 Harrison’s response admitted that his two 2003 convictions qualified as violent felonies. But he argued that his 2000 conviction under § 316.1935(2) did 2 The indictment for the § 316.1935(2) conviction in 2000 stated that on December 9, 1999, Harrison “did unlawfully and willfully flee or attempt to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated, in violation of Section 316.1935(2), Florida Statutes.” Because Harrison committed the offense in 1999, we quote the 1999 version of the Florida Statute in footnote 16 infra. 3 not. Therefore, in his view, the district court was prohibited from looking beyond the statutory language of § 316.1935(2) to determine whether it was a conviction for a violent felony. The probation officer then revised an addendum to the PSI. The revised addendum noted that whether a § 316.1935(2) conviction qualified as a “violent felony” for purposes of the ACCA was an issue of first impression and stated that, should the district court sustain the government’s objection, Harrison’s offense level would be 30 after application of the “Armed Career Criminal” provision, U.S.S.G....

...mandatory minimum fifteen-year sentence. See U.S.S.G. § 5G1.1(c). For Count 2, the statutory maximum of ten years resulted in a 120-month recommended sentence. See id. § 5G1.1(a). 4 concluded that Harrison’s § 316.1935(2) conviction qualified under the ACCA. The court adopted the PSI’s revised addendum’s alternate calculation of Harrison’s total offense level of 30 (which applied U.S.S.G....

...In imposing the sentences, the district court emphasized Harrison’s criminal history and the need to protect the public from Harrison. On appeal, Harrison raises a single issue: whether the district court erred in concluding that a conviction under Fla. Stat. § 316.1935(2) is a “violent felony” for purposes of the ACCA.5 II....

...es the use of explosives.” See id. § 924(e)(2)(B)(ii). Therefore, the issue on appeal is whether Harrison’s conviction of violating Florida’s statute making it a felony to willfully flee or attempt to elude a police officer, see Fla. Stat. § 316.1935(2), is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C....

...facts of case to determine whether prior conviction qualified for 12-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(I) for drug trafficking offenses)); see also Shepard v. United States, 544 U.S. 13, 19-26, 125 S. Ct. 1254, 1259-63 (2005). In this case, there is no contention that § 316.1935(2) or the judgment of conviction are ambiguous....

...Florida’s Willful Fleeing Statute We start by examining the relevant state crime’s statutory elements to identify the correct “category” of crime. Begay, 128 S. Ct. at 1584. That is, we look to “how the law defines the offense.” Id. Here, Harrison pled guilty to violating Florida Statutes § 316.1935(2). We print the relevant part of Florida’s statute.16 16 Florida Statutes § 316.1935 (1999), entitled “Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding,” provides: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered...

...22  Although a number of states treat the crime of fleeing or eluding a police officer as one crime, Florida does not. Rather, Florida’s statutory scheme differentiates between different types of fleeing behavior. See Fla. Stat. § 316.1935(1)-(3). Florida’s statute distinguishes between willful failures to stop a vehicle or willful fleeing after being ordered to stop by an officer, § 316.1935(1), willful fleeing after a police vehicle has activated its lights and sirens, § 316.1935(2) (the provision at issue here), and such willful fleeing (after a police vehicle has activated its lights and sirens) with “high speed” or “wanton disregard for the safety of persons or property,” § 316.1935(3).17 The statute also classifies each type of conduct into a misdemeanor and various felony classes based on the degree of seriousness of the behavior. Compare Fla. Stat. § 316.1935(1) jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree ....

...activated, and during the course of the fleeing or attempted eluding drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property commits a felony of the second degree . . . . Fla. Stat. § 316.1935 (emphasis added). 17 Subsection 2 does not explicitly require that the offender be operating a motor vehicle. But subsection 1 applies to the “operator of any vehicle.” And subsections 2 and 3 then add elements and in...

...Further, the entire statute is housed in the “Motor Vehicles” title of Florida Statutes. Thus, it appears that subsection 2 requires, or at least contemplates, that the offender be operating a motor vehicle. At oral argument, both parties assumed that the crime in § 316.1935(2) is “ordinarily committed” by a person operating a motor vehicle. 23 (misdemeanor), with Fla. Stat. § 316.1935(2) (third-degree felony), and Fla. Stat. § 316.1935(3) (second-degree felony).18 The Florida legislature’s differentiation between types of fleeing is relevant under the categorical approach....

...itution and failure to report to a penal institution). And this is not the first time that we have addressed this Florida statute. See United States v. Orisnord, 483 F.3d 1169, 1182-83 (11th Cir. 2007). In Orisnord, we examined whether a § 316.1935(3) violation is a “crime of violence” under U.S.S.G. § 4B1.2(a)(2).19 Id. at 1182-83. The language of U.S.S.G. § 4B1.2(a)(2) 18 Although Florida subsequently modified its willfully fleeing and eluding statute, see Fla. Stat. § 316.1935 (2004), none of those modifications impacted subsection 2. As to subsections 1 and 3, the 2004 modifications made a violation of § 316.1935(1) a third-degree felony, not a misdemeanor, and a violation of § 316.1935(3) either a second-degree felony or a first-degree felony, depending on whether the offender “causes serious bodily injury or death to another person.” See Fla. Stat. § 316.1935(1)-(3) (2004). A violation of § 316.1935(2) remains a third-degree felony....

...§ 4B1.1(a). 24 is identical to the ACCA’s residual clause in all material respects.20 Both define a violent crime as one “that presents a serious potential risk of physical injury to another.” The question in Orisnord was whether a violation of Fla. Stat. § 316.1935(3)–which makes it illegal to willfully flee from an officer “at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property”–presented a “serious potential risk” of injury....

...Taylor, 489 F.3d 1112, 1113-14 (11th Cir. 2007). The Supreme Court has vacated Taylor for reconsideration in light of Chambers. See United States v. Taylor, – U.S. –, 129 S. Ct. 990 (2009). Today, we decide the residual clause issue only as to the willful fleeing violation in § 316.1935(2) and mention the escape cases only because Orisnord relied on them in part. 26 recognized that certain escape crimes—such as the willful failure of felons to report to their penal institutions—are not violent felonies. Chambers, 129 S. Ct. at 689. In any event, Orisnord involved only the separate and more serious crime in subsection 3 of § 316.1935–not subsection 2; Orisnord is helpful but not controlling. With James, Begay, Chambers, and Orisnord as guideposts, we turn to the question of whether a § 316.1935(2) offense presents a “serious potential risk of physical injury.” When assessing risk, we examine the crime as “generally committed,” see Chambers, 129 S....

...committed the offense “on a particular occasion.” Begay, 128 S. Ct. at 1584. But we do examine “[t]he nature of the behavior that likely underlies [the] statutory phrase” in question. Chambers, 129 S. Ct. at 690. A person violates § 316.1935(2) and commits a third-degree felony under Florida law where she “willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle . . . with siren and lights 27 activated.” Fla. Stat. § 316.1935(2); Arroyo v....

...State, 901 So. 2d 1014, 1015 (Fla. Dist. Ct. App. 2005); Sanford v. State, 872 So. 2d 406, 407-08 (Fla. Dist. Ct. App. 2004). Florida’s statutory elements drive our assessment of the “ordinary case” of the statutory violation in § 316.1935(2). The behavior ordinarily underlying the crime in § 316.1935(2) involves only this conduct: (1) a law enforcement vehicle, with its siren and lights activated, signals the motorist to stop and (2) the motorist willfully refuses or fails to stop the vehicle.22 Our “categorization” of the crime...

...2d at 1015 (“The fleeing and eluding statute has three relevant subsections. Subsection (1) is a misdemeanor. It prohibits the willful refusal to stop when ordered to do so by an authorized police officer in a marked police vehicle and after ‘having stopped,’ willfully fleeing to elude the officer. § 316.1935(1), Fla. Stat. (2002). Subsection (2) converts the offense to a third degree felony by adding the officer’s use of ‘lights and sirens’ as an element of the crime. § 316.1935(2), Fla. Stat. (2002). Subsection (3) converts aggravated fleeing and eluding to a second degree felony by adding the elements of ‘high speed’ or ‘wanton disregard’ as elements of the crime. § 316.1935(3), Fla. Stat. (2002).”). 28 property as elements of a § 316.1935(2) crime.23 Having determined how a § 316.1935(2) crime is ordinarily committed, we turn to the Supreme Court’s other discrete questions. First, is willfully failing to stop after a police officer signals one to do so, as proscribed by § 316.1935(2), “roughly similar” to § 924(e)(2)(B)(ii)’s enumerated offenses in “degree of risk posed”? See Begay, 128 S....

...crime–rather than some roving federal common law definition of willfully fleeing an officer, unmoored by a particular state’s statutory scheme. 29 police signal to do so. The dangerous conduct ordinarily underlying a violation of § 316.1935(3), for example, presents a serious potential risk of injury. But the nature of a § 316.1935(2) crime, as ordinarily committed, does not involve the same high level of risk. Neither high speed nor reckless driving is a statutory element of the Florida crime at issue here. And such elements are not ordinarily involved in a § 316.1935(2) crime....

...significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’” Chambers, 129 S. Ct. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Rather, because Florida’s crime in § 316.1935(2), as ordinarily committed, does not contain the elements of high speed or reckless driving, it strikes us as less likely 30 that the offender will become violent and resist arrest....

...And, likewise, we reject the notion that all willful fleeing crimes should be treated equally, especially where the Florida statute differentiates between types of willful fleeing. It is also relevant to our analysis that the government bears the burden to show that a § 316.1935(2) violation poses a “serious potential risk of physical injury to another.”24 The Supreme Court has addressed the scope of the residual clause three times in the past two years, and each time, it has used statistical evidence to a...

...useful study would look at the number of physical injuries associated with such willful fleeing crimes as compared to the total number of such willful fleeing crimes. Even assuming a serious potential risk of physical injury exists in a § 316.1935(2) violation, Begay requires courts to further address whether the crime is similar “in kind” to burglary, arson, extortion, and the use of explosives. Begay, 128 S. Ct. at 1585. For § 316.1935(2) to be “similar in kind” to those enumerated offenses, the conduct underlying the crime must be “purposeful, violent, and aggressive.” Chambers, 129 S....

...A person who refuses to stop and drives on, without anything more, is, under Florida law, a felon. But that kind of person is not, in our mind, cut from the same cloth as burglars, arsonists, extortionists, or those that criminally detonate explosives. The fleeing crime in § 316.1935(2) seems more appropriately characterized as the crime of a fleeing coward—not an armed career criminal bent on inflicting physical injury. In any event, the government has the burden. And based on the limited record before us, it has not shown that someone who has violated § 316.1935(2) has a future propensity for violent conduct. Id. at 1586. Given that we look only to how this Florida crime is committed in the ordinary case, and that we have no empirical data to help us, it requires too much of a leap to conclude that one who violates § 316.1935(2) is the kind of person likely to commit a crime of violence. 34 We do not minimize the risks associated with an offender who has a § 316.1935(2) conviction. Rather, we hold only that, based on the record before us, the government has not shown that a violation of § 316.1935(2) is “roughly similar in kind” to the other “purposeful, violent, and aggressive” crimes of arson, burglary, extortion, or the criminal use of explosives enumerated in § 924(e)(2)(B)(ii). A § 316.1935(2) crime does not fall within the scope of the kind of crimes that the ACCA was intended to reach....

...attempts to elude a law enforcement officer . . . and during the course of the fleeing or attempted eluding . . . [d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property.” Fla. Stat. § 316.1935(3). The issue of whether “fleeing and eluding” under this provision constitutes a “crime of violence” for purposes of § 4B1.2 is one of first impression in this circuit....

...2001); United States v. 26 Nation, 243 F.3d 467, 472 (8th Cir. 2001); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999). Accordingly, we hold that felony fleeing and eluding, in violation of Fla. Stat. § 316.1935(3), is a “crime of violence” for purposes of the career-offender enhancement under U.S.S.G....

...The Third District referred to section 784.081(2), Florida Statutes (2000), which reclassifies the offense of assault or battery upon any employee of the state system of education "when the person committing the offense knows or has reason to know the identity or position or employment of the victim," [11] and section 316.1935(1), Florida Statutes (2005), which states that "[lit is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse...

...-------------------------- Comment This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1987 *1090 [508 So.2d 1221], 1992 [603 So.2d 1175], and 1995 [657 So.2d 1152], and 2008. 28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

..."Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(2), Fla....

...y, excepting devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses ------------------------------------------------ FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1) ------------------------------------------------ CATEGORY CATEGORY FLA. INS. ONE TWO STAT. NO. ------------------------------------------------ Fleeing to elude 316.1935(1) 28.6 ------------------------------------------------ None ------------------------------------------------ Comment This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008. 28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and lights activated with high speed or reckless driving) § 316.1935(3)(a), Fla....

...evices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. *1092 Lesser Included Offenses -------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1)(3)(a) -------------------------------------------------------- CATEGORY CATEGORY FLA. INS. ONE TWO STAT. NO. -------------------------------------------------------- Fleeing to elude 316.1935(2) 28.7 -------------------------------------------------------- Fleeing to elude 316.1935(1) 28.6 -------------------------------------------------------- Reckless driving 316.192 28.5 -------------------------------------------------------- Comment This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008. 28.81 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and lights activated with high speed or reckless driving causing serious bodily injury or death) § 316.1935(3)(b), Fla....

..."Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses --------------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER --------------------------------------------------------------- *1093 — 316.1935(3)(b) --------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. --------------------------------------------------------------- Fleeing to elude 316.1935(3)(a) 28.8 --------------------------------------------------------------- Fleeing to elude 316.1935(2) 28.7 --------------------------------------------------------------- Fleeing to elude 316.1935(1) 28.6 --------------------------------------------------------------- Reckless driving 316.192 28.5 --------------------------------------------------------------- Comment This instruction was adopted in 2008. 28.83 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...*1094 Lesser Included Offenses --------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061 --------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. --------------------------------------------------------------------------------- Aggravated Fleeing 316.1935(4)(a) 28.85 --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 --------------------------------------------------------------------------------- Leaving the Scene of a Crash Involving Damage to Vehicle or Property 316.061 N/A --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(a) 28.8 --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 --------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 --------------------------------------------------------------------------------- Comments This instruction was adopted in 2008. 28.85 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...Lesser Included Offenses -------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061 -------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. -------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 -------------------------------------------------------------------------------- Leaving the Scene of a Crash Involving Damage to Vehicle or Property 316.061 N/A -------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 -------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(a) 28.8 -------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 -------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 -------------------------------------------------------------------------------- Comments This instruction was adopted in 2008....

... As previously noted, we have not addressed whether a non-violent walkaway escape is still categorically a violent felony or crime of violence after Chambers and Begay. We have, however, concluded that fleeing and eluding in violation of Florida Statute § 316.1935(2), which makes it a third-degree felony to “willfully flee[] or attempt[] to elude a law enforcement officer in an authorized law enforcement patrol vehicle ....

...On these undisputed facts the officer had probable cause to believe that Zylstra violated Florida law by willfully refusing or failing to stop a vehicle after having been ordered to do so by a law enforcement officer, a third-degree felony. Fla. Stat. Ann. § 316.1935(1) reads in relevant part this way: It is unlawful for the operator of any vehicle, having knowledge that he 13  or she has been ordered to stop such vehicle by a duly authorized law...

...On appeal, Jackson argues that his initial stop by Wandell was unlawful because it was not based on any founded suspicion of criminal activity. We believe this to be true — but irrelevant. This is so because, irrespective of the illegality of the initial stop by Wandell, the applicable statute, section 316.1935, Florida Statutes (1983), relating to the offense of fleeing and eluding a police officer, does not require lawfulness of the police action as an element of the offense....

...State, 445 So.2d 1121 (Fla. 5th DCA 1984); Shieder v. State, 430 So.2d 537 (Fla. 5th DCA 1983); Byrd v. State, 388 So.2d 1362 (Fla. 5th DCA 1980). It appears that this was a clerical error, and as the sentence exceeds the maximum allowable by law under section 316.1935, Florida Statutes (1983), we reverse the sentence and remand for its reduction to one year....

...We have accordingly added these two alternatives to the committee's proposed instruction. FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER As ultimately submitted to this Court, the committee's proposed instruction regarding fleeing to elude a law enforcement officer under section 316.1935(1), Florida Statutes (Supp.1998) (fleeing/failure to stop), was not explicitly clear that the State must prove the subject defendant's knowledge not only of the order to stop but also of the fact that the person who ordered the stop was a duly authorized law enforcement officer. As urged by Assistant Public Defender Stanton, we have incorporated language from the controlling statute to ensure that these knowledge requirements are accurately reflected in the instruction. See § 316.1935(1), Fla. Stat. (Supp.1998). As further urged by Assistant Public Defender Stanton, we have also incorporated these knowledge requirements in the two remaining fleeing-to-elude instructions proposed by the committee under sections 316.1935(2) (willful fleeing/siren and lights) and 316.1935(3) (high speed/ recklessness), Florida Statutes (Supp.1998), respectively....

...The historical fact of a previous conviction shall be determined by the judge, and shall thereby fix the degree of the crime. State v. Harris, 356 So.2d 315 (Fla.1978). [10: A Revised Instruction for Eluding an Officer (Fleeing/Failure to Stop)] FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER F.S. 316.1935 Before you can find the defendant guilty of Fleeing or Attempting to Elude a Police Officer, the State *703 must prove the following three elements: Elements 1....

..."Street or highway" means the entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic. 4. "Willfully" means intentionally, knowingly and purposely. FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1) Fla....

...devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. _________ Lesser Included Offenses Category One: None Category Two: None __________ Comment This instruction is based on the text of section 316.1935(1), Florida Statutes, (Supp.1998). *704 [11: A Revised Instruction for Eluding an Officer (Willful Fleeing/Siren and Lights)] [Existing Fleeing to Elude Instruction Struck as Reflected in # 10 above] FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(2) Fla....

...may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. __________ Lesser Included Offenses Category One: Fleeing to Elude, Fla. Stat. 316.1935(1) Category Two: None ___________ Comment This instruction is based on the text of section 316.1935(2), Florida Statutes, (Supp.1998). [12: A Revised Instruction for Eluding an Officer (High Speed/Recklessness) ] [Existing Fleeing to Elude Instruction Struck as Reflected in # 10 above] FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(3) Fla....

...r may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. _________ Lesser Included Offenses Category One: Fleeing to Elude Fla. Stat. 316.1935(2) Fleeing to Elude Fla.Stat. 316.1935(1) Category Two: Reckless Driving Fla. Stat. 316.192 _________ Comment This instruction is based on the text of section 316.1935(3), Florida Statutes, (Supp.1998)....

...The instructions as set forth in the appendix shall be effective when this opinion becomes final. It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. APPENDIX 28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

..."Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses No lesser included offenses have been identified for this offense. -------------------------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER—316.1935(1) -------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....

...er included offense, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010). This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081] and 2011. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla....

...lusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses ------------------------------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER—316.1935(1) ------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------- Fleeing to elude 316.1935(1) 28.6 ------------------------------------------------------------------------------- None Disobedience to 316.072(3) Police or Fire Department Officials ------------------------------------------------------------------------------- Comments For the category two lesser included offense, see Koch v....

...State, 39 So.3d 464 (Fla. 2d DCA 2010). This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081] and 2011. 28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla....

...lusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses ------------------------------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER—316.1935 (3)(a) ------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------- Fleeing to elude 316.1935(2) 28.7 ------------------------------------------------------------------------------- Fleeing to elude 316.1935(1) 28.6 ------------------------------------------------------------------------------- Reckless driving 316.192 28.5 ------------------------------------------------------------------------------- Disobedience to Police or 316.072(3) Fire D...

...This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081] and 2011. 28.81 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) § 316.1935(3)(b), Fla....

...lusively upon stationary rails or tracks. "Willfully" means intentionally, knowingly, and purposely. Lesser Included Offenses ------------------------------------------------------------------------------- FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER—316.1935(3)(b) ------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ------------------------------------------------------------------------------- Fleeing to elude 316.1935(3)(a) 28.8 ------------------------------------------------------------------------------- Fleeing to elude 316.1935(2) 28.7 ------------------------------------------------------------------------------- Fleeing to elude 316.1935(1) 28.6 ------------------------------------------------------------------------------- Reckless driving 316.192 28.5 ------------------------------------------------------------------------------- Disobedience to Police or 316.072(3) Fire D...

...ee Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010). This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011. 28.82 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

...l treatment. Lesser Included Offenses --------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Serious Injury Bodily Injury or Death)—316.1935(4)(b) and 316.027 --------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. --------------------------------------------------------------------------------- Aggravated Fleeing 316.1935(4)(a) 28.84 --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 --------------------------------------------------------------------------------- Leaving Scene of Accident 316.027(1)(b) 28.4 Involving Death --------------------------------------------------------------------------------- Leaving Scene of Accident 316.027(1)(a) 28.4 Involving Injury --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 --------------------------------------------------------------------------------- *143 Fleeing to Elude LEO 316.1935(3)(a) 28.8 --------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 --------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 --------------------------------------------------------------------------------- Disobedience to Police or 316.072(3) Fi...

...2d DCA 2010). This instruction was adopted in 2008 [SC07-1851, January 10, 2008 976 So.2d 1081] and amended in 2011. 28.83 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...Lesser Included Offenses ---------------------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death)—316.1935(4)(b) and 316.061 ---------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. ---------------------------------------------------------------------------------------------- Aggravated Fleeing 316.1935(4)(a) 28.85 ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 ---------------------------------------------------------------------------------------------- Leaving the Scene of a 316.061 N/A Crash Involving Damage to Vehicle or Property ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(a) 28.8 ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 ---------------------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 ---------------------------------------------------------------------------------------------- Disobedience...

...h v. State, 39 So.3d 464 (Fla. 2d DCA 2010). This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011. 28.84 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

...Lesser Included Offenses ---------------------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Injury or Property Damage to Another)—316.1935(4)(a) and § 316.027 ---------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 ---------------------------------------------------------------------------------------------- Leaving Scene of Accident 316.027(1)(b) 28.4 Involving Death ---------------------------------------------------------------------------------------------- Leaving Scene of Accident 316.027(1)(a) 28.4 Involving Injury ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(a) 28.8 ---------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 ---------------------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 ---------------------------------------------------------------------------------------------- Disobedience...

...This instruction was adopted in 2008 [SC07-1851, January 10, 2008 976 So.2d 1081] and amended in 2011. *146 28.85 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...Lesser Included Offenses ------------------------------------------------------------------------------------------- AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another)—316.1935(4)(a) and 316.061 ------------------------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. ------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(1) 28.6 ------------------------------------------------------------------------------------------- Leaving the Scene of a 316.061 N/A Crash Involving Damage to Vehicle or Property *147 ------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(b) 28.81 ------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(3)(a) 28.8 ------------------------------------------------------------------------------------------- Fleeing to Elude LEO 316.1935(2) 28.7 ------------------------------------------------------------------------------------------- Reckless Driving 316.192 28.5 ------------------------------------------------------------------------------------------- Disobedience to Pol...

... Anthony Harris appeals the district court’s application of the U.S.S.G. § 2K2.1(a)(4)(A) career offender enhancement to his sentence for being a felon in possession of a firearm. He argues that his prior felony conviction under Fla. Stat. § 316.1935(3)(a) for willfully fleeing or eluding a police officer at high speed or with wanton disregard for the safety of persons or property should not qualify as a “crime of violence,” as defined by U.S.S.G....

...However, application of the framework explained by the Supreme Court in Begay, as well as its holdings in James v. United States, 550 U.S. 192 (2007), and Chambers v. United States, 129 S. Ct. 687 (2009), yields the conclusion that a conviction under Section 316.1935(3)(a) of Florida’s penal code qualifies as a “crime of violence” for Section 2K2.1(a)(4)(A) purposes, and, accordingly, we affirm. I. On November 23, 2006, Anthony Harris fled...

...hour, ultimately crashing his car into a tree and causing serious injury to his passenger. Harris was charged in Pinellas 2 County, Florida, with fleeing from a law enforcement officer under Fla. Stat. § 316.1935(3)(a), which provides that (3) [a]ny person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings pro...

...the course of the fleeing or attempted eluding: (a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree . . . . Fla. Stat. § 316.1935. Harris pled nolo contendere to the Section 316.1935(3)(a) charge on May 27, 2007, and was convicted....

...District of Florida, to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (“PSI”) recommended a base offense level of 20, counting Harris’s earlier conviction under Fla. Stat. § 316.1935(3)(a) as a “crime of violence” under U.S.S.G....

...2008), fleeing and eluding should no longer be classified as a “crime of violence” under the Sentencing Guidelines. The district 3 court disagreed, observing that the Eleventh Circuit had, in a case squarely on point, previously held that a Fla. Stat. § 316.1935(3) conviction was a crime of violence under the United States Sentencing Guidelines in United States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir....

...While Supreme Court law governing the analysis of crimes of violence had changed in the interim, the district court found that it was bound by Orisnord unless and until the Eleventh Circuit held otherwise. (Hr’g Trans. Sentencing at 11, Oct. 3, 2008). We take this opportunity to reiterate that Fla. Stat. § 316.1935(3)(a) still qualifies as a “crime of violence” under the Sentencing Guidelines. II. We review de novo whether a defendant’s prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines....

...of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). The crime at issue here, a violation of Fla. Stat. § 316.1935(3)(a), falls under the residual provision of the career offender guideline for a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In Orisnord, we squarely held that a violation of Fla. Stat. § 316.1935(3)(a) qualifies as a crime of violence for the U.S.S.G. § 4B1.2 career offender enhancement. 483 F.3d at 1183. In that case, a defendant with a prior felony conviction for fleeing and eluding law enforcement officers under Fla. Stat. § 316.1935(3)(a) argued that the district court had improperly characterized this conviction as a crime of violence for sentencing purposes....

...conviction for failing to report to a penal facility was not a violent felony. Id. In United States v. Harrison, a panel of this Court applied James, Begay, and Chambers to the question of whether a conviction arising under a different section of Fla. Stat. § 316.1935 qualified as an ACCA predicate offense....

...in assessing the risk of non-enumerated 10 crimes under the residual clause.” Id. at 1290. Measuring through this lens, we held that a third-degree felony for willfully fleeing the police, Fla. Stat. § 316.1935(2), did not constitute a crime of violence for ACCA purposes because the third-degree escape -- which did not require either high speed or a wanton disregard for safety, as Harris’s conviction did -- did not entail the same “high...

...Thus, we concluded that, as ordinarily committed, the crime of third- degree escape under Florida’s penal code did not imply that the offender would “become violent or resist arrest.” Id. Harrison also offered in dicta, however, that the second-degree felony at issue here, Section 316.1935(3), would constitute a violent felony under ACCA: we have little difficulty gauging potential risk when high speed or reckless driving is coupled with a willful failure to stop in response to a police signal to do so. The dangerous conduct ordinarily underlying a violation of § 316.1935(3), for example, presents a serious potential risk of injury. Id....

...11 Id. at 1295 (quoting Begay, 128 S. Ct. at 1587). This dicta about the nature of willful fleeing in the second degree under Florida’s law is persuasive: the nature of callousness to risk evinced in a Section 316.1935(3) conviction that requires as an element of the crime fleeing at high speed or a wanton disregard for safety, more closely resembles the characteristics of a burglar committing a crime, aware that violence might ensue, or of an a...

...using a fire as a weapon, even without the intent of burning someone, than does merely fleeing from the police. An application of the Supreme Court’s recently developed framework yields the same result we reached in Orisnord. We hold, therefore, that Fla. Stat. § 316.1935(3) is a crime of violence for Sentencing Guideline purposes and under U.S.S.G. §§ 4B1.2 and 2K2.1(a)(4)(A). As the Court instructed us in James, we begin with a categorical approach to this crime. We read the face of Fla. Stat. § 316.1935(3) itself to discern the crime as it is ordinarily committed....

...e 12 failure to report to a penal institution or driving under the influence of alcohol. Under a categorical approach, the following conduct is comprehended by the language contained in Fla. Stat. § 316.1935(3): 1) a marked law enforcement vehicle signals a motorist to stop, with the sirens and lights activated; 2) the motorist willfully flees; and, 3) the flight occurs either at high speed or with “a wanton disregard for the safety of p...

...roperty” does indeed “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay, 128 S. Ct. at 1587. Moreover, the act of fleeing the police under Fla. Stat. § 316.1935(3) is undeniably purposeful; willfulness is an expressed element of the statute....

...necessarily poses a powerful risk to the arresting officer, pedestrians, and other drivers and passengers in their own cars. Like burglary, this flight displays “a degree of callousness toward risk.” Begay, 128 S. Ct. at 1587. Fleeing under Fla. Stat. § 316.1935(3) is also aggressive....

...2009) (“Although Begay provides guidance for defining a violent felony under the ACCA or an analogous sentencing statute, we do not interpret its holding to require a different outcome in this case or a reexamination of our [prior] holding.”). In short, a conviction arising under Fla. Stat. § 316.1935(3)(a) is a crime of violence as defined by U.S.S.G....

...Bower, Special Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Judge. A jury convicted Chad Koch of fleeing and eluding a police officer, a third-degree felony. § 316.1935(2), Fla....

...lesser included offenses. Arguably, the misdemeanor offense *466 of disobeying a lawful order by law enforcement under section 316.072(3) could be characterized as a necessarily, or category one, lesser included offense of fleeing and eluding under section 316.1935(2), the felony with which Koch was charged....

...Background The State charged Ayers with the third-degree felony offense of possession of cocaine in violation of section 893.13, Florida Statutes (2003), and the misdemeanors of *944 possession of paraphernalia in violation of section 893.147 and fleeing or attempting to elude in violation of section 316.1935, Florida Statutes (2003)....

...in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree . . . . Fla. Stat. § 316.1935(1)....

...This practice and experience suggest that people waiting at roadblocks believe they are free to turn around. Plaintiffs also claim that a reasonable person would not believe he was free to turn around for fear he could be prosecuted under Florida Statute section 316.1935....

...ify him an armed career offender do not qualify as violent felonies under the § 924(e): (1) resisting an arresting officer with violence, in violation of Fla. Stat. § 843.01, and (2) fleeing and eluding at high speed, in violation of Fla. Stat. § 316.1935(3). We reject Nix’s challenge to the § 843.01 conviction, holding that a such conviction constitutes a violent felony under 18 U.S.C....

...This is the same holding we recently reached in United States v. Hayes, 2010 WL 3489973 (September 8, 2010). Although the Hayes decision was not published, we are persuaded by its rationale regarding § 843.01 and therefore adopt its holding. Nix’s challenge to the § 316.1935(3) conviction is foreclosed by United States v. Harris, 586 F.3d 1283 (11th Cir....

...Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant. James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee. LAZZARA, Judge. The state of Florida appeals the trial court's order declaring section 316.1935(2), Florida Statutes (1995), unconstitutionally vague. Because we conclude that the statute as applied to the alleged conduct of the appellee is not facially void for vagueness, we reverse and remand for further proceedings. In 1994, the Florida legislature amended section 316.1935, Florida Statutes (1993), which prohibited fleeing or attempting to elude a police officer....

...s plain and ordinary meaning what the legislature intended to prohibit. Cf. Brown v. State, 629 So.2d 841, 843 (Fla.1994) (undefined statutory phrase's imprecision made it impossible to tell what legislature intended to target). Accordingly, because section 316.1935(2) is not impermissibly vague in all of its applications, as demonstrated by the facts of this case, and because it adequately specifies a comprehensible standard of prohibited core conduct, we hold that it is facially constitutional. As a consequence of our holding, we are constrained by fundamental principles of appellate review from deciding whether the hypotheticals posed by the trial court would fall within the proscriptions of section 316.1935(2)....

...of degree.'" Powell, 423 U.S. at 93, 96 S. Ct at 320 (quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913)) (emphasis added). We conclude, therefore, based on this record, that the trial court erred in declaring section 316.1935(2) facially unconstitutional because the appellee failed to sustain his heavy burden of establishing that this statute is impermissibly vague in all of its applications....

...In the instant case, the officers had abundant probable cause to arrest Gasset for reckless driving in violation of section 316.192, Florida Statutes (1983) (for a first conviction, punishable up to 90 days imprisonment and $500 fine), and fleeing or attempting to elude a police officer in violation of section 316.1935(1), Florida Statutes (1983) (punishable up to one year imprisonment and $1,000 fine)....

...Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee. ORFINGER, J. The State of Florida appeals the downward departure sentence imposed on Malik G. Stephenson after he pled no contest to aggravated fleeing and eluding in violation of section 316.1935(3); Florida Statutes (2006), and one count of resisting an officer without violence, in violation of section 843.02, Florida Statutes (2006)....

...Gauldin, Assistant Public Defender, Tallahassee, for Appellant. Robert Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee. PADOVANO, Judge. In this appeal the defendant challenges the constitutionality of section 316.1935(2), Florida Statutes, which provides an enhanced penalty for the offense of fleeing and eluding a law enforcement officer. By the terms of the statute, fleeing and eluding an officer is a third-degree felony if the offender causes the officer to engage in a "high-speed vehicle pursuit." We conclude that section 316.1935(2), Florida Statutes, gives fair notice of the conduct that is proscribed and therefore we hold that the statute is constitutional on its face....

...United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). A different standard applies, however, in resolving a challenge to the validity of a statute like section 316.1935(2), which does not purport to regulate any constitutionally protected activity....

...A statute such as this is unconstitutional on its face only if it is so vague that it fails to give adequate notice of any conduct that it proscribes. See, e.g., Brown v. State, 629 So.2d 841 (Fla.1994). The procedure for evaluating the facial validity of a statute such as section 316.1935(2) is outlined in Village of Hoffman Estates v....

...594, 9 L.Ed.2d 561 (1963), statutes should not be declared facially invalid "simply because difficulty is found in determining whether certain marginal offenses fall within their language." 372 U.S. at 32, 83 S.Ct. at 597. We have no difficulty in concluding that section 316.1935(2) fairly proscribes the conduct attributed to the defendant in the present case....

...In contrast, when a defendant asserts a challenge to a statute as applied, the court must consider the facts to determine whether the statute can be fairly used to proscribe that defendant's conduct, and the result is not binding on other parties. We agree with the Second District Court of Appeal in Barnes that section 316.1935(2) is not unconstitutionally vague on its face....

...e a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominent *1223 ly displayed on the vehicle, with siren and lights activated commits a felony of the third degree.... § 316.1935(2), Fla....

...fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree.... § 316.1935(1), Fla....

...To convict for this offense, the State must prove that the defendant fled from a law enforcement officer "in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated." See § 316.1935(2), Fla....

...marked, or that he even knew the car was from the Lake Alfred Police Department before he stopped to assist. In the absence of proof that the car was prominently marked, the evidence was insufficient to support a conviction for felony fleeing under section 316.1935(2)....

...Therefore, on remand the State may not seek to convict Jackson for possession of cocaine with intent to sell or for felony fleeing or attempting to elude a law enforcement officer. However, he may be retried for the lesser included offenses of possession of cocaine and of failure to stop under section 316.1935(1), Florida Statutes (2000), and, of course, for possession of marijuana....

...est Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Frank J. Ingrassia and Consuelo Maingot, Assistant Attorney Generals, Fort Lauderdale, for appellee. STONE, J. We reverse Anderson's conviction for violation of section 316.1935(2), Florida Statutes (Supp.1998), felony fleeing or eluding a law enforcement officer, because the jury was erroneously instructed on the elements of the offense....

...We reverse, however, as the jury instruction included an additional non-existent *1014 element to the crime by providing that Anderson could be found guilty of the offense if he fled or attempted to elude "after having stopped." The statute at issue, section 316.1935, provides for the misdemeanor and third-degree felony commission of the offense of fleeing or attempting to elude a law enforcement officer as follows: (1) It is unlawful for the operator of any vehicle, having knowledge that he or s...

...ith such order, willfully to flee in an attempt to elude the officer, ... (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle ... commits a felony of the third degree, ... § 316.1935(1) and (2), Fla.Stat. Subsection (1) of the statute provides that a misdemeanor is committed if the defendant, knowing he had been directed to stop, either (1) fails to stop or (2) having stopped, flees in an attempt to elude the officer. See § 316.1935(1), Fla....

...Subsection (2), which defines the third-degree felony, provides that the offense is committed when the person "willfully flees or attempts to elude" and the police officer is in a jurisdictionally marked vehicle with sirens and lights activated. See § 316.1935(2), Fla.Stat....

...610, 70 L.Ed.2d 598 (1981); Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), although we do not condone the improprieties. AFFIRMED. DAUKSCH, J., concurs. SCOTT, R.C., Associate Judge, dissents without opinion. NOTES [1] § 810.02, Fla. Stat. (1981). [2] § 316.1935 Fla....

...stitute a continuous series of acts or events. [3] Under the facts of this case, the state might have charged Williams with vehicular homicide, section 782.071(1), Florida Statutes (2000), or fleeing or attempting to elude a law enforcement officer, section 316.1935(3), Florida Statutes (2000), both second degree felonies carrying the same punishment as third degree felony murder....

...Hirsch Distributors, Inc., 442 So.2d 958 (Fla. 4th DCA) (on rehearing denied), review dismissed, 451 So.2d 848 (Fla.1984). We think that the dispositive issue for purposes of this appeal is what the legislature intended the unit of prosecution to be when it drafted section 316.1935, which proscribes fleeing or attempting to elude a law enforcement officer....

...l system of "any article" defined as contraband, the court held that the defendant could be convicted of only one count of possession of contraband notwithstanding that he had possessed two prison-made knives. In this case, the applicable statute is section 316.1935, Florida Statutes (1995)....

...Here, in contrast, according to Grappin and Watts, there is no ambiguity in the applicable statute. Rather, those decisions require the conclusion that the legislature clearly intended to permit multiple prosecutions and convictions. In summary, we hold that section 316.1935, Florida Statutes (1995), was intended to permit multiple prosecutions when a defendant flees or attempts to elude more than one law enforcement officer, even if all of the proscribed acts occur during a single episode....

...but instead determined to avoid it. Bryant never gave deputies the opportunity to establish the "special duty" that arose in Henderson. Bryant had the absolute legal duty to yield to the deputies' authority. Indeed, it was a felony to fail to do so. Section 316.1935, Florida Statutes (1999), entitled "Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding," provides in pertinent part: (1) It is unlawful for the operator of any vehicle, having knowledge that he o...

...and was planning to sell them. Garces was initially charged with trafficking in cocaine, in violation of Fla. Stat. § 893.135; aggravated assault, in violation of Fla. Stat. § 784.021; and willfully fleeing, in violation of Fla. Stat. § 316.1935....

...State, 600 So.2d 1310 (Fla. 5th DCA 1992). JUDGMENTS AFFIRMED; SENTENCES VACATED; and CAUSE REMANDED FOR RESENTENCING. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] §§ 893.135(1)(b) 1.a., 775.087(1), Fla. Stat. (1993). [2] § 790.01(2), Fla. Stat. (1993). [3] § 316.1935, Fla....

...is committing or attempting to commit a felony. Mercury further alleged that at the time of the accident Coatney was operating his vehicle in a manner showing that he was fleeing from or attempting to elude a law-enforcement officer in violation of section 316.1935, Florida Statutes, which is a second degree felony if the person attempting to elude a law-enforcement officer causes injury to another person....

...[1] The officers pursued and stopped him. He was then arrested for driving under the influence and a search incidental to his arrest revealed cocaine. He was charged with possession of that drug and with fleeing or attempting to elude a police officer in violation of section 316.1935, Florida Statutes (1985), which provides as follows: (1) It is unlawful for the operator of any vehicle, having knowledge that he has been directed to stop such vehicle by a duly authorized police officer, willfully to refuse or fail...

...This court rejected as irrelevant the defendant's argument that the initial stop was unlawful because it was not based on any founded suspicion of criminal activity. We stated: [I]rrespective of the illegality of the initial stop by Wandell, the applicable statute, section 316.1935, Florida Statutes (1983), relating to the offense of fleeing and eluding a police officer, does not require lawfulness of the police action as an element of the offense....

...Green was pursued and apprehended several blocks away. Incident to the arrest at that time — not at the point of the illegal checkpoint — he was searched and cocaine was discovered on his person. His stop for fleeing a police officer pursuant to section 316.1935, Florida Statutes (1987), was valid....

...He was then arrested for driving under the influence (§ 316.193(1), Fla. Stat. (1986)) [1] and a search incidental to his arrest revealed cocaine. He was charged with possession of that drug (§ 893.13(1)(e), Fla. Stat.) and with fleeing or attempting to elude a police officer in violation of section 316.1935, Florida Statutes....

...l authority directs a citizen to stop his vehicle a citizen either does not have a constitutional right to not stop or does not have a constitutional right to assert his constitutional right to not stop. Under the majority view, by a statute such as section 316.1935, Florida Statutes, a state legislature can effectively vitiate, or render useless, a constitutional right by the simple device of criminalizing and penalizing the exercise or assertion of that right, such as when the citizen refuses...

...submit to a police violation of those rights and, specifically, the right to not stop his vehicle when the police directive to stop is illegal and violative of the citizen's constitutional rights. The dissent would simply hold that a statute such as section 316.1935, Florida Statutes, cannot be constitutionally applied to criminalize and penalize the exercise of a constitutional right....

...[1] For some reason the DUI charge was dismissed and the State does not seek to uphold the lawfulness of the arrest and search on the ground that the police officers had probable cause to arrest the defendant for the DUI offense committed in their presence. [2] § 316.1935, Fla....

...Karmelin (West Palm Beach), Special Assistant Attorney General, for appellee. *650 Before COPE and GODERICH, JJ., and NESBITT, Senior Judge. NESBITT, Senior Judge. Defendant George Franklin Gorsuch was charged with a number of criminal counts including fleeing or attempting to elude an officer at high speed in violation of 316.1935(3). During jury instructions, the trial judge instructed the jury on that charged offense, as well as a violation of the lesser included offense of simple fleeing or attempting to elude a law enforcement officer under 316.1935(1). The jury returned verdicts of guilty as to three charged counts, including fleeing or attempting to elude officer at high speed in violation of subsection 316.1935(3)....

...The Defendant moved for a judgment of acquittal and also moved for a new trial on the fleeing and eluding count. He argued that there was no evidence the police vehicles involved in the chase had the proper police insignia prominently displayed with their sirens and lights activated, as required by subsection 316.1935(3). The judge denied the motions and Defendant was adjudicated guilty and sentenced to 20 years in prison on the fleeing and eluding count. We agree with Defendant's argument that the conviction for violation of section 316.1935(3) should be reversed and the cause remanded with instructions to reduce that conviction to a violation of section 316.1935(1). Section 316.1935 Florida Statutes (2000) provides: Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop s...

...[1] It is undisputed that two of the officers were driving unmarked vehicles, and the third officer's vehicle was marked with a 15 inch City of Miami seal, on the car's door. There was no evidence, however, that any of the vehicles had an agency insignia as required by subsection 316.1935(3)....

...Moreover, a corrected copy of the officers' record testimony demonstrates that while it is clear the officers were screaming, it was not demonstrated that any sirens had been activated. In sum, while the facts demonstrate a willful attempt to elude police, see § 316.1935(1) Fla. Stat. (2000), the facts do not support the officers were "in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings... with sirens ... activated " See § 316.1935(3) Fla. Stat. (2000). Accordingly, the order under review is reversed and the case is remanded with instructions to correct Defendant's conviction and sentence to reflect a violation of subsection 316.1935(1)....

...Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee. GROSS, J. Clara Rowley appeals her conviction for fleeing and eluding a police officer, a third degree felony, contrary to section 316.1935(2), Florida Statutes (2004)....

...as, "very aware of driving very carefully," Mrs. Rowley then started her car and left the scene of the stop, leading several police cars, with sirens and lights flashing, on a low speed chase." There was no dispute at trial that Mrs. Rowley violated section 316.1935(2); she willfully fled or attempted to elude a law enforcement officer who was "in a jurisdictionally marked vehicle with sirens and lights activated." Anderson v....

...and for resentencing. We affirm the consecutive habitual felony offender sentence for Count III, because Jenkins's act of fleeing or attempting to elude two officers who were in their patrol vehicles with sirens and lights activated, in violation of section 316.1935(2), Florida Statutes (2002), occurred in a different location and at a different time than the other three offenses, which arose from Jenkins's earlier conduct toward an officer who was on bicycle patrol....

...On consideration of appellee's motion for rehearing and/or clarification, we withdraw our prior opinion and substitute the following. Sidney Marcellus Slack appeals his conviction for fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(2), Florida Statutes (2006), on grounds the trial court erred in denying his motion for judgment of acquittal....

...He contends the state failed to prove that the *686 vehicle he fled prominently displayed agency insignia. We agree that, because of this failure of proof, the trial court erred in denying the motion for judgment of acquittal. While we reverse on this basis, we remand for entry of a judgment of conviction for violation of section 316.1935(1), Florida Statutes (2006), on the authority of section 924.34, Florida Statutes (2009). Mr. Slack was charged with violating section 316.1935(2), Florida Statutes (2006), which provides: Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings promin...

...find that "[t]he law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated," in order to convict under section 316.1935(2)....

...State, 397 So.2d 1120 (Fla.1981)). While Deputy Stone testified he was driving a "marked patrol car" with "lights on top" and that he activated his lights and siren, there was no evidence of "agency insignia and other jurisdictional markings prominently displayed on the vehicle." § 316.1935(2), Fla....

...rsuch. By neglecting to adduce any evidence that Deputy Stone's vehicle had agency insignia or other jurisdictional markings, the state failed to make out a prima facie case of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(2), and the trial court erred in denying Mr. Slack's motion for judgment of acquittal. The State argues, however, that it also proved and the jury also necessarily found the appellant guilty of violating section 316.1935(1), which the state argues [1] should be deemed a lesser-included offense: It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement off...

...having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084. § 316.1935(1), Fla. Stat. (2006). We agree the fact that section 316.1935(1) is punishable in the same fashion as section 316.1935(2) is not determinative....

...der with a firearm, a lesser-included offense that normally carried a shorter maximum sentence but, with the application of the ten-twenty-life statute, the two offenses carried the same maximum sentence. Id. at 205. While subsections (1) and (2) of section 316.1935 are punishable in the same fashion without regard to any enhancement statute, we have interpreted Sanders in a way that makes this immaterial....

...ncluded offense are always subsumed within those of the charged offense." Id. (citing State v. Paul, 934 So.2d 1167, 1176 (Fla. 2006)). In the present case, the jury was instructed, with respect to the elements constituting the offense proscribed by section 316.1935(2): To prove the crime of fleeing to elude a law enforcement officer the State must prove the following four elements beyond a reasonable doubt....

...Number four, the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with lights and sirens activated. The jury was instructed that section 316.1935(1) was proven if the State proved all the elements of subsection (2) except the final element. By finding Mr. Slack guilty of violating section 316.1935(2), the jury made a finding on every element of the lesser-included offense under subsection (1)....

...the offense and where the error causing remand does not disturb those findings."). Reversed and remanded for entry of judgment of conviction for the lesser-included offense of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2006). KAHN and CLARK, JJ., concur. NOTES [1] At trial, the defense objected to treating section 316.1935(1) as a lesser-included offense of section 316.1935(2) because both offenses are third-degree felonies. [2] Whether these elements correspond precisely to the language of section 316.1935(1) is not before us. The defense raised no objection to any element, when it objected to treating section 316.1935(1) as a lesser-included offense on the basis that both section 316.1935(1) and 316.1935(2) are third-degree felonies.

...pled nolo contendere, in case numbers 96-5459 and 96-6584. In case number 96-5459, the charges were grand theft of a motor vehicle pursuant to § 812.014(2)(c)(6), and fleeing and attempting to elude a law enforcement officer with high speed pursuit pursuant to § 316.1935(2), both of which are third degree felonies; the state nolle prossed charges of burglary of a conveyance and resisting arrest without violence....

...ng." The officer in this case was fully authorized to stop the vehicle in which D.N. was a passenger. The officer had probable cause to arrest the driver (but not the passenger) for the offense of fleeing and eluding a police officer in violation of section 316.1935, Florida Statutes (2000)....

...disprove vindictiveness arose. Rather, Martin failed to meet his burden of showing the trial judge acted with actual vindictiveness in imposing the sentence. AFFIRMED. THOMPSON, C.J., and PALMER, J., concur. NOTES [1] § 812.13(2)(a), Fla. Stat. [2] § 316.1935(3), Fla....

...We conclude that the officers' observations of suspicious activity in French Town, coupled with their prior knowledge [1] and observation of events occurring at the motel, provided founded suspicion for the stop. Because appellant's failure to stop after officers activated their blue emergency lights violated Section 316.1935, Florida Statutes, officers had probable cause to arrest appellant for committing a first-degree misdemeanor in their presence....

...iction and remand with instructions to enter judgment for the lesser offense of fleeing. In all other respects, we affirm. Santiago argues that fundamental error requires a reversal of his conviction for aggravated fleeing or eluding, a violation of section 316.1935(4), Florida Statutes (1999), because the State failed to prove, and could not prove, that he was leaving the scene of an accident. Santiago's argument is well taken. In count seven, the superseding indictment cited section 316.1935(4) and charged that Santiago was in the course of unlawfully leaving or attempting to leave the scene of an accident in violation of Florida Statute 316.027 or 316.061, and had knowledge of an order to stop by a duly authorized law enforcement officer [and] did willfully refuse or fail to stop in compliance with such order, and as a result of such fleeing or eluding did cause injury to another person or damage to property of another.... Section 316.1935(4), defining the second-degree felony of aggravated fleeing or eluding, specifically refers to leaving the scene of a crash....

...It is clear that the state could not have proven an essential element...." 601 So.2d at 629. Therefore, we reverse the conviction for aggravated fleeing. Because the evidence was sufficient to prove the lesser included offense of simple fleeing, a misdemeanor in violation of section 316.1935(1), we remand with instructions to enter judgment and sentence for the lesser offense....

...ent officers without violence, a first-degree misdemeanor, section 843.02, Florida Statutes (2004); and fleeing or attempting to elude a law enforcement *1199 officer in a marked patrol vehicle with siren and lights activated, a third-degree felony, section 316.1935, Florida Statutes (2004)....

...Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instructions was adopted in 1995 [665 So.2d 212] and amended in 2008. 28.82 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

..."Reasonable assistance" includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Serious Injury Bodily Injury or Death) -316.1935(4)(b) and 316.027 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.84 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving Scene of Accident 316.027(1)(b) 28.4 Involving Death Leaving Scene of Accident 316.027(1)(a) 28.4 Involving Injury Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving 316.192 28.5 *436 Comments This instruction was adopted in 2008. 28.84 AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

...Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Injury or Property Damage to Another) -316.I935(4)(a) and § 316.027 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving Scene of Accident 316.027(1)(b) 28.4 Involving Death Leaving Scene of Accident 316.027(1)(a) 28.4 Involving Injury Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving 316.192 28.5 Comments This instruction was adopted in 2008.

...State, 536 So.2d 283 (Fla. 3d DCA 1988). That issue is not dispositive here, however. Whether or not the detectives had a founded suspicion, once the detectives had activated their blue emergency lights, Diaz was obliged to stop. His failure to do so violated section 316.1935, Florida Statutes (1987), a first degree misdemeanor....

...1801, 131 L.Ed.2d 727 (1995); Reid, 211 F.Supp.2d at 374. Because we cannot find this error harmless beyond a reasonable doubt, a new trial is required on the charges to which the statements were pertinent. This excludes only the count for fleeing and eluding the police, § 316.1935(3), Fla....

...which was incomparable to the other more serious types of felonies expressly enumerated in the statute — such as murder, sexual battery, and home invasion robbery. Id. at 219 . Appellant was convicted of aggravated fleeing and eluding pursuant to section 316.1935(3), Florida Statutes (2002), which provides in relevant part: Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional...

...sed him. The deputy followed Sanford and activated his emergency lights. Sanford took a sharp turn and a fourteen minute car chase ensued. When Sanford stopped, there was an exchange of gunfire. The aggravated fleeing and eluding charge, governed by section 316.1935(2), Florida Statutes (1998), in effect at the time of the crime, provides: (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle ......

...and lights activated. (Emphasis added) Relying on Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), Sanford contends that the addition of the highlighted portion, which is not a stated element of felony fleeing, but is, instead, spelled out in section 316.1935(1) as an element of a misdemeanor, renders the jury instruction erroneous and that, notwithstanding the defense concurring in the given instruction, giving the instruction constitutes fundamental error....

...er after having stopped.... Id. at 1013. On the facts in Anderson, we concluded that the jury instruction prejudiced the defendant by adding an extra element in the language "having stopped, flees in an attempt to elude ..." where that language from section 316.1935, subsection (1)(misdemeanor) does not appear in the subsection (2)(felony)....

...Petite’s sentence was enhanced by application of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The sole question the defendant has raised on appeal is whether his prior conviction for intentional vehicular flight from an authorized law enforcement patrol car in violation of Fla. Stat. § 316.1935(2) is a violent felony for ACCA purposes....

...§ 922(g), and he had prior felony convictions in Pinellas County Circuit Court for three earlier offenses: (1) robbery (two counts) on January 29, 1993 1; (2) sale of cocaine on August 17, 1998; and (3) fleeing and attempting to elude a law enforcement officer in violation of Fla. Stat. § 316.1935(2) on May 22, 2006....

...s as a violent felony under the Armed Career Criminal Act is a question of law that we review de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009). The question before us is whether vehicle flight in violation of Fla. Stat. § 316.1935(2) meets the federal statutory definition of a violent felony....

...To answer this question, we are obliged to review the Florida statute of conviction, the Armed Career Criminal Act, and the controlling Supreme Court case law interpreting the ACCA’s residual clause. We begin with the text. Petite’s relevant prior conviction was for a violation of Fla. Stat. § 316.1935(2): (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Fla. Stat. § 316.1935(2)....

...fficer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Fla. Stat. § 316.1935(3)....

...the vehicles have stopped moving. See id. (“And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest.”). Thus, Petite’s argument that a person who violates Fla. Stat. § 316.1935(2) in the ordinary case does not pose a serious potential risk of injury comparable to ACCA’s enumerated crimes of burglary and arson because he “observes all traffic requirements” and “simply continues to drive without pulling...

...First, and most substantially, Petite notes that we have a prior panel opinion on all fours with the case before us. See United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009). In Harrison, a panel of this Court held that the offense of simple vehicle flight in violation of Fla. Stat. § 316.1935(2) -- the same offense at issue here -- was not a violent felony for purposes of the Armed Career Criminal Act....

...at issue,” and that the absence of such elements “makes it unlikely that the confrontation will escalate into a high-speed chase that threatens pedestrians, other drivers, or the officer.” Id.; accord id. (“[B]ecause Florida’s crime in § 316.1935(2), as ordinarily committed, does not contain the elements of high speed or reckless driving, it strikes us as less likely that the offender will become violent and resist arrest.”). The panel similarly said that the “disobedience�...

...apprehender, thereby producing a serious potential risk of physical injury.” (internal quotation marks omitted)). The second prop on which the panel’s holding in Harrison rested was that, “[e]ven assuming a serious potential risk of physical injury exists in a § 316.1935(2) violation,” id....

...2012). But, as we see it, there is little meaningful distinction for ACCA purposes between Florida’s simple vehicle flight statute and the Indiana statute of conviction at issue in Sykes. See id. at 267 (“Nonetheless, applying the Sykes analysis to the base offense at issue here, § 316.1935(2), inevitably leads to the conclusion that the prohibited conduct of intentional vehicular fleeing itself, without more, is a violent felony.”)....

... Case: 11-14996 Date Filed: 01/03/2013 Page: 24 of 26 (“[Vehicle flight] presents more certain risk as a categorical matter than burglary.”). To be sure, we do not dispute that the ordinary commission of aggravated vehicle flight under Fla. Stat. § 316.1935(3) presents a greater level of risk than does the ordinary commission of simple vehicle flight under Fla. Stat. § 316.1935(2)....

...ntial risk of physical injury to others comparable to the ACCA’s enumerated crimes. See Sykes, 131 S. Ct. at 2273; James, 550 U.S. at 203-04; see also Hudson, 673 F.3d at 268 (“While it may be true that the conduct underlying violations of §§ 316.1935(3)(a) and 316.1935(3)(b) presents greater risks of violence and injury than does conduct underlying a violation of the base offense in § 316.1935(2), it does not follow that a violation of § 316.1935(2) does not also present a substantial risk of injury to another.”)....

...flashing patrol car presents a serious potential risk of physical injury comparable to the ACCA’s enumerated crimes of burglary and arson. See Sykes, 131 S. Ct. at 2273-74. Because Petite’s prior conviction for vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifies as a violent felony under the Armed Career Criminal Act, we AFFIRM his enhanced sentence. AFFIRMED. 26 

...lying felonies for the third-degree murder convictions in those cases (DUI manslaughter and vehicular homicide, respectively) were homicide offenses whereas the underlying felony in this case (fleeing or eluding) is not a homicide offense. We agree. Section 316.1935, Florida Statutes, proscribes the offense of fleeing or attempting to elude a law enforcement officer, and identifies various degrees of the crime....

...(emphasis supplied). Unlike DUI manslaughter and vehicular homicide, fleeing or eluding can be committed without causing a death. Thus, fleeing or eluding is not a homicide offense. The alternative element of “serious bodily injury” contained in section 316.1935(3)(b) distinguishes fleeing or eluding from the underlying felony offenses in Rodriguez and McKay , and it also distinguishes fleeing or eluding from DWI manslaughter, which the supreme court held in Houser to be a homicide offense r...

...persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree.... § 316.1935(3)(b), Fla....

..., a crime which required that the defendant drive at high speed or “demonstrate[] a wanton disregard for the safety of persons or property,” constituted a crime of violence under the Sentencing Guidelines. 586 F.3d at 1284 (quoting Fla. Stat. § 316.1935(3)(a))....

...The Court reasoned that “[f]leeing from the police at high speed or with ‘a wanton disregard for the safety of persons or property’ does indeed ‘show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.’” Id. (quoting Fla. Stat. § 316.1935(3)(a) and Begay v. 1 However, a court may examine the underlying facts of the conviction, if “ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment itself.” Harris, 586 F.3d at 1286 n.1 (quoting United States v....

...This is because, like the Florida statute’s requirement that the flight be committed with “a wanton disregard for the safety of persons or property,” this statute contains the essential element that the flight “creates a risk of death or injury to any person.” Fla. Stat. § 316.1935(3)(a); N.J....

...lness of the police action as an element of the offense. McCune should have stopped when the officer put on his lights and sounded his siren. See Green v. State, 530 So.2d 480 (Fla. 5th DCA 1988); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985); section 316.1935, Fla....

...officer, shall be guilty of a misdemeanor of the first degree...." § 843.02. [2] Apparently, Duarte was just running an errand with his brother, whom he picked up on the way to the strip mall. [3] Herrera may also have been subject to arrest under section 316.1935(1), Florida Statutes (2007)....

...Butterworth, Attorney General, Tallahassee; and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for appellee. SHAHOOD, Judge. Appellant, Michael Thornton, appeals from a judgment of conviction and sentence on the charges of fleeing or attempting to elude a law enforcement officer, in violation of section 316.1935, Florida Statutes, and aggravated assault on a law enforcement officer, in violation of sections 784.021 and 784.07, Florida Statutes....

...Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee. PER CURIAM. The state appeals the decision of the trial court to withhold adjudication of guilt for the charge of aggravated fleeing and eluding, pursuant to section 316.1935, Florida Statutes (2007)....

...d adjudication. [1] The court found mitigating circumstances under section 921.0026, Florida Statutes (2007), that would justify a downward departure, and ruled that this statute authorized a withhold of adjudication, notwithstanding the language of section 316.1935(6), which provides: Notwithstanding s....

...a court to withhold adjudication of guilt. Section 921.0026, also a general sentencing statute, sets out the mitigating circumstances that would justify a "downward departure from the lowest permissible sentence." § 921.0026(1), Fla. Stat. (2007). Section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation. Section 316.1935(6) was enacted in 2004, while section 921.0026 was passed in 1998. See Ch. 2004-388, Laws of Fla.; Ch. 1998-204, Laws of Fla. Because it is the later promulgated statute, section 316.1935(6) should prevail "as the last expression of legislative intent" on the subject of sentencing for an aggravated fleeing and eluding charge....

...State, 641 So.2d 45, 47 (Fla.1994) (involving the conflict between a mandatory sentencing statute for possession of a short-barreled shotgun, section 790.221, Florida Statutes (1989), and the general sentencing statute found at section 948.01, Florida Statutes (1989)). Also, section 316.1935(6) specifically addresses sentencing under section 316.1935....

...nitial witnesses were law enforcement officers. We conclude that under the facts of this case, the trial court did not abuse its discretion in denying Thomas' request for self-representation. AFFIRMED. PLEUS, C.J. and ORFINGER, J., concur. NOTES [1] § 316.1935(1), Fla....

...n counts II and V. REVERSED and REMANDED. COBB and PETERSON, JJ., concur. NOTES [1] The judge who denied the defendant's motion for postconviction relief was not the judge who initially sentenced the defendant. [2] § 316.192, Fla. Stat. (1995). [3] § 316.1935, Fla....

...§ 775.08(4))). Clearly, defendant was convicted and placed on probation for fleeing and attempting to elude a police officer, which he committed on September 6, 2005. Fleeing and attempting to elude a police officer is a second-degree felony under Section 316.1935(3), Florida Statutes....

...Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellee. PER CURIAM. The State appeals the trial court's decision to withhold adjudication of guilt following Brandon Culver's no contest plea to a charge of fleeing and eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2009). Section 316.1935(6) expressly prohibits the court from withholding adjudication of guilt for any violation of section 316.1935....

...to be unlawful because it did not meet constitutional standards. The defendant was stopped after a brief pursuit and cocaine was found in his car. The Fifth District affirmed the denial of a motion to suppress, finding that the stop was valid under section 316.1935, Florida Statutes, because the police stopped and searched him based on his flight rather than at the illegal checkpoint....

...was no charge of fleeing or attempting to elude. In our case, when the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2)....

...several other people did not require a judgment of acquittal but simply presented a jury question regarding whether the possession was exclusive. Odom, 862 So.2d at 59 . AFFIRMED. PADOVANO and SWANSON, JJ., concur. BENTON, C.J., concurs in result. . Section 316.1935(2), Florida Statutes (2010), provides: "Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently...

...*851 Lance Armstrong, Miami, for appellant. Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee. GERBER, J. The defendant appeals his conviction for aggravated fleeing and eluding under section 316.1935(2), Florida Statutes (2007)....

...He argues that the trial court erred in denying his motion for judgment of acquittal. Specifically, he contends there was no evidence that the patrol vehicles from which he was fleeing had "agency insignia and other jurisdictional markings prominently displayed." § 316.1935(2), Fla....

...The officers eventually took the defendant into custody. The officer testified that the defendant, while in custody, spontaneously said "he was sorry for what he did, that he knew he should have stopped when he saw my lights." The state charged the defendant with aggravated fleeing and eluding under section 316.1935(2), Florida Statutes (2007), which provides: Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently *852 displayed on the vehicle, with siren and lights activated[,] commits a felony of the third degree.... § 316.1935(2), Fla....

...The same type I was, a marked police vehicle. (emphasis added). The defendant argues that, "[w]hile it may have appeared clear to ... the jurors" what the phrases "marked unit" and "marked police vehicle" meant, those phrases were insufficient to satisfy section 316.1935(2)'s third element: The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated....

...Affirmed. HAZOURI, J., concurs. STEVENSON, J., concurs specially with opinion. STEVENSON, J., concurring specially. I concur in the majority's result. I concur specially to note that I would find the state's evidence sufficient to satisfy Florida Statutes section 316.1935(2)'s requirements, even without the defendant's statement that "he knew he should have stopped because he saw my lights." In my view, the defendant's statement adds little to address the alleged deficiency in the state's case, i.e., section 316.1935(2)'s requirement that the state show that "agency insignia" and other "jurisdictional markings" were prominently displayed on the vehicle....

...P. 3.510(b). [1] The pleadings and the evidence adduced at trial supported the requested instruction. Nevertheless, the trial court's refusal to give the instruction does not compel reversal. In addition to an instruction on the charged offense, see § 316.1935(3)(a), Fla. Stat. (1995), the trial court instructed the jury on the category one included lesser offenses of (1) fleeing to elude a law enforcement officer with lights and siren (§ 316.1935(2)) and (2) fleeing to elude a law enforcement officer (§ 316.1935(1))....

...Reckless driving is three steps removed from the charged offense; the trial court gave instructions on lesser included offenses just one step removed. Because the jury declined to exercise its pardon power by convicting Mr. Higgs of a violation of section 316.1935(2) or section 316.1935(1), the trial court's refusal to give the requested instruction is harmless....

...Appellant, Sergio Luis Quintana, was charged with possession of a firearm by a violent career criminal pursuant to § 790.235, Fla. Stat. (2004), procuring another to commit prostitution under § 796.07(2)(f), Fla. Stat. (2004), and fleeing a law enforcement officer under on § 316.1935(2), Fla....

...etionary ruling on this matter, there was no reasonable possibility that the error contributed to the jury's verdict. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). [2] § 812.133(1), Fla. Stat. (2000). [3] § 810.02(1), Fla. Stat. (2000). [4] § 316.1935, Fla....

...onveyance with the intent to commit an offense therein, namely the theft of the automobile. G.D. v. State, 557 So.2d 123 (Fla. 3d DCA 1990). [3] Sections 817.014(1) and 817.014(2)(c)4, Fla. Stat. (1987). [4] Section 810.02(1), Fla. Stat. (1987). [5] Section 316.1935, Fla....

...Carney, Assistant Attorney General, West Palm Beach, for appellee. POLEN, Judge. Edmond Reid and Richard Fox are two of five defendants whose cases were consolidated below for the purpose of presenting motions to dismiss attacking the constitutionality of section 316.1935(2), Florida Statutes (1995), Florida's Aggravated Fleeing statute....

...We consolidate these cases for opinion purposes and affirm Judge Taylor's well-reasoned order, in keeping with the Second District's opinion in State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996), rev. denied, 695 So.2d 698 (Fla.1997), which we adopt. Section 316.1935 provides in pertinent part: 316.1935 Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been directed to stop such vehicle by a duly authorized law enfo...

...dge of an order to stop by a duly authorized law enforcement officer, causes the law enforcement officer to engage in a high-speed vehicle pursuit commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 316.1935, Fla....

...in different lanes. Fox eventually became boxed-in when vehicles began to scatter, and stopped. We agree with the trial court's determination both defendants' conduct fell squarely within the statute. Therefore, neither Reid nor Fox may complain of section 316.1935(2)'s potential vagueness as applied to the hypothetical conduct of others....

...The court denied Jones's request to discharge his counsel without inquiring into his reasons. This was a structural defect in Jones's trial, and we must reverse his convictions and remand for a new trial. Jones was charged with fleeing at high speed to elude, a second-degree felony in violation of section 316.1935(3)(a), Florida Statutes (2007), and obstruction without violence, a misdemeanor in violation of section 843.02, Florida Statutes (2007)....

...Give if applicable. Fla. Stat. § 316.003 (21). A “motor vehicle” is a self-propelled vehicle not operated upon rails or guide-way, but not including any bicycle, motorized scooter, electric personal assis-tive mobility device, swamp buggy, or moped. Fla. Stat. § 316.1935 ....

...As the First District Court explained in McKinney: Unlike DUI manslaughter and vehicular homicide, fleeing or eluding can be committed without causing a death. Thus, fleeing or eluding is not a homicide offense. The alternative element of "serious bodily injury" contained in section 316.1935(3)(b) distinguishes fleeing or eluding from ....

...nders stood nearby). In the instant case, the auto chase that ensued after the officer attempted to stop Barr constituted criminal conduct. Barr could have been charged either with fleeing or attempting to elude a law enforcement officer pursuant to section 316.1935(1), Florida Statutes (1993), or with reckless driving pursuant to section 316.192(1), Florida Statutes (1993)....

...uding creating a "substantial risk of death or great bodily harm to many persons." Id. § 921.0016(3)(i). [2] At the time of Barr's arrest, fleeing or attempting to elude an officer was punishable by imprisonment for a period not to exceed one year. § 316.1935(1), Fla.Stat....

...beyond a reasonable doubt to a jury. (4) Whether the district court plainly erred in finding that Symington’s prior conviction for fleeing or attempting to elude a law enforcement officer, in violation of Florida Statute § 316.1935(1), qualifies as a violent felony under the ACCA. III....

...Most importantly, appellant fails to establish that his sentence is illegal within the meaning of Rule 3.800(a). See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001). His fifteen-year sentence is within the statutory maximum for the second-degree felony aggravated fleeing and eluding. § 316.1935(3)(a), Fla....

...ed offense of high-speed or wanton fleeing, or subsumed by the greater offense. In the amendments to Standard Jury Instructions — Criminal Cases (99-1), 765 So.2d 692, 705 (2000), the Supreme Court of Florida listed the lesser-included offenses for section 316.1935(3), Florida Statutes, the fleeing statute for which Cruz was convicted. The only category *1282 one lesser-included offense is fleeing to elude, section 316.1935(2)....

...Lesser Included Offenses. . . ." Florida, 894 So.2d at 947 (citing to section 775.021(4)(b)(3), Fla. Stat.). This leads to the conclusion that Cruz's conviction for these two offenses did not violate double jeopardy. Further, the state contends that section 316.1935 allows multiple prosecutions when a defendant eludes more than one law enforcement officer, even when all offenses flowed from one episode. Cruz was charged with violation of section 316.1935(3)(a), Florida Statutes, which reads: (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominent...

...Kenison, Assistant Public Defender, West Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. The appellant, Raul Deltoro was charged by information with violating section 316.1935(2), Florida Statutes (2008). The information was erroneously captioned with the non-existent crime of "aggravated fleeing (chase)." The jury was presented with evidence and testimony as to the crime of non-aggravated fleeing and eluding (pursuant to section 316.1935(2))....

...* * * The state does concede that the petition does not allege that appellant knew the victim was a school board employee, an element of the new statute. We therefore remand for the offense to be reclassified as simple assault. (Emphasis added). See also § 316.1935, Fla....

...entity of the state system of education . . . when the person committing the offense knows or has reason to know the identity or position or employment of the victim, the offense for which the person is charged shall be reclassified. . . . (Emphasis added). [9] Section 316.1935, Florida Statutes (2005) states, in pertinent part: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to...

...car. An officer found other cold beers of the same brand on the roadside near where the juvenile had fled. Along with marijuana possession and possession of alcohol by a minor, the juvenile was charged with aggravated fleeing and eluding pursuant to section 316.1935(3)(a), Florida Statutes (2012)....

...should apply to the RAI and the decision of whether to hold a child in secure detention. See Bynes v. State, 127 So.3d 556 , 2012 WL 5500335 (Fla. 4th DCA 2012). But, we agree that the plain meaning of the word “violent” is not applicable to the section 316.1935(3)(a) offense of “aggravated fleeing or eluding.” A court may consider the plain language of words used in the RAI in deciding whether an offense is properly scored....

...Here, there was no “strong physical force” or “intense or vehement threat to persons or property,” nor did the juvenile’s conduct result in “serious bodily injury or death to another person,” which would have raised the offense to a first degree felony, § 316.1935(3)(b), Fla....

...This practice and experience suggest that people waiting at roadblocks believe they are free to turn around. Plaintiffs also claim that a reasonable person would not believe he was free to turn around for fear he could be prosecuted under Florida Statute section 316.1935....

...Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. A jury convicted Jermaine Thomas of robbery by snatching in violation of section 812.131(1), Florida Statutes (2002), and fleeing and eluding in violation of section 316.1935(2), Florida Statutes (2002)....

...A prison releasee reoffender sentence is appropriate only if the crime for which the defendant is being sentenced is one of the enumerated felonies or "[a]ny felony that involves the use or threat of physical force or violence against an individual." § 775.082(9)(a)(1), Fla. Stat. (2002). Fleeing and eluding in violation of section 316.1935(2) is neither an enumerated felony nor a felony that "involves the use or threat of physical force or violence against an individual." Affirmed in part and Reversed in part. STEVENSON, C.J., GUNTHER and MAY, JJ., concur. ON MOTION FOR REHEARING STEVENSON, C.J. After being convicted of robbery by sudden snatching in violation of section 812.131(1), Florida Statutes (2002), and fleeing and eluding in violation of section 316.1935(2), Florida Statutes (2002), appellant, *47 Jermaine Thomas, was sentenced as a prison releasee reoffender and a habitual felony offender for both crimes....

...812.13; and (3) burglary of a structure, in violation of Fla. Stat. § 810.02. As relevant to this appeal, the district court also addressed Gandy’s 2001 conviction for fleeing or attempting to elude a law enforcement officer in violation of Fla. Stat. § 316.1935(2)2 and held that it was bound by precedent in this Circuit to hold that this crime was not a predicate offense “until such time as the 11th Circuit recedes from [this holding] or the Supreme Court expressly overrules [this precedent...

...2001). 6  Case: 11-15407 Date Filed: 02/27/2013 Page: 7 of 14 cert. denied, 133 S. Ct. 288 (2012). Subsequent case law instructs us that Gandy’s 2001 conviction for simple vehicle flight in violation of Fla. Stat. § 316.1935(2) is a predicate offense under the ACCA. At the time of Gandy’s sentencing, this Court had held that a state conviction under Fla. Stat. § 316.1935(2) was not a violent felony under the ACCA....

...After Gandy’s sentencing, this Court expressly held that the Supreme Court in Sykes had abrogated our holding in Harrison. See United States v. Petite, 703 F.3d 1290, 1297 (11th Cir. 2013).4 As in Petite and Harrison, Gandy had a prior 4 Fla. Stat. § 316.1935(2) was identically worded at the time of Gandy’s conviction and at the time of the appellant’s conviction in Petite. 7  Case: 11-15407 Date Filed: 02/27/2013 Page: 8 of 14 conviction for simple vehicle flight (Gandy’s 2001 conviction).5 We held in Petite that simple vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifies as a violent felony under the residual clause of § 924(e)(2)(B)(ii)....

...at 1598 n.6 (“While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice SCALIA’s suggestion [in 5 This Court in Petite distinguished simple vehicle flight (Fla. Stat. § 316.1935(2)) from “aggravated vehicle flight” (Fla. Stat. § 316.1935(3))....

...in the defendant’s opening brief and because “the Supreme Court has consistently declined to find the residual clause void for vagueness”), cert. denied, 133 S. Ct. 207 (2012). Accordingly, a “prior conviction for vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifies as a violent felony under the [ACCA],” Petite, 703 F.3d at 1301, and it is undisputed that Gandy was convicted in violation of Fla. Stat. § 316.1935(2)....

...Appellant was convicted of aggravated fleeing or eluding an officer, a second degree felony, and argues that the trial judge should have granted his motion for judgment of acquittal. We agree and reverse for his conviction to be reduced to simple fleeing or eluding, a third degree felony. Section 316.1935, Florida Statutes (2005) defines the more serious crime, the second degree felony, in subsection (3): Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with...

...Nor did he observe any other vehicles affected by appellant's driving. Appellant argues that the trial court should have granted his motion for judgment of acquittal of aggravated fleeing, because he was not driving at "high speed" or with a "wanton disregard for the safety of persons or property." § 316.1935....

...We conclude that there was insufficient evidence of "high speed" or "wanton disregard," while the lights and siren were on, to support the conviction of aggravated fleeing. We accordingly reverse and remand for the court to reduce the conviction to fleeing as defined in section 316.1935(1) or (2), Florida Statutes, a third degree felony....

...Because this error has not been preserved, we affirm without prejudice to L.D.K.'s right to file an appropriate motion for collateral relief. On January 3, 2008, L.D.K. was adjudicated delinquent of the third-degree felony of fleeing or attempting to elude, a violation of section 316.1935, Florida Statutes (2007), and the first-degree misdemeanor of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007)....

...The trial court placed Mr. Gaddy on two years' probation in September 2008, for *1259 fleeing or attempting to elude a law enforcement officer in a vehicle driven at high speed or with wanton disregard for persons or property, a second-degree felony. See § 316.1935(3)(a), Fla....

...r appellee. HILAL, JENNIFER, Associate Judge. The defendant was found guilty after a jury trial of fleeing or attempting to elude a law enforcement officer with lights and sirens activated while driving recklessly or at a high speed pursuant to section 316.1935(3)(a), Florida Statutes....

...and unambiguous expression of the legislature’s intent. Id. In State v. Scriber, 991 So.2d 969 (Fla. 4th DCA 2008), the defendant was charged with aggravated fleeing and eluding. Id. at 970 . Although the aggravated fleeing and eluding statute — section 316.1935, Florida Statutes (2007) — stated that “no court may suspend, defer or withhold adjudication of guilt or imposition of sentence” for such a crime, the trial court found mitigating circumstances under section 921.0026 and entered a downward departure withholding adjudication. Id. The State appealed the trial court’s ruling, and this Court reversed. Id. In reaching its holding, this Court reasoned: Section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation. Section 316.1935(6) was enacted in 2004, while section 921.0026 was passed in 1998. See Ch. 2004-388, Laws of Fla.; Ch. 1998-204, Laws of Fla. Because it is the later promulgated statute, section 316.1935(6) should prevail “as the last expression of legislative intent” on the subject of sen *410 tencing for an aggravated fleeing and eluding charge....

...Therefore, the trial court should have scored the offense as a third degree felony. On remand for recomputation of the sentence, the Oklahoma offense must be properly scored. The trial court sentenced Appellant to 70 months in prison for aggravated fleeing and eluding, a third degree felony. See § 316.1935(2), Fla....

...ial motion to suppress the victim’s identification of Guzman-Aviles at a show-up3 done at the arrest site because the show-up was impermissibly suggestive. Guzman-Aviles asserted that 1 § 812.13(2)(a), Fla. Stat. (2012). 2 § 316.1935(1), Fla....

...GALLEN, THOMAS M„ Associate Senior Judge, Concurs. MORRIS, J., Concurs in result only. . § 843.02, Fla. Stat. (2008). . § 810.02(1 )(b)(4)(b), Fla. Stat. (2008). . §§ 810.02(l)(b)(4)(b), 777.04, Fla. Stat. (2008). . § 812.014(2)(c)(l), Fla. Stat. (2008). . § 812.014(2)(c)(6). . § 316.1935(3)(a), Fla....

...We affirm the trial court's order as to all but one of the issues without comment. The remaining issue we affirm without prejudice to Sampson's right to file a facially sufficient claim. The record indicates that Sampson was convicted of felony fleeing to elude, in violation of section 316.1935(2), Florida Statutes (1997), and was sentenced to twelve years in prison....

...after the arrest of James and Kathleen. Louis was ultimately arrested for obstructing an officer, handcuffed, and placed in the back of the car with James. (Doc. # 57, p. 8.) James was arrested for fleeing and eluding in violation of Florida Statute § 316.1935(1); resisting a law enforcement officer without violence in violation of Florida Statute § 843.02; and refusal to accept and sign a citation in violation of Florida Statute 318.14....

...Therefore, the question for constitutional purposes is whether the stop was lawful at the time the vehicle pulled into the gas station. Two provisions of Florida law make it a criminal offense for the driver to refuse to stop a vehicle as directed by a law enforcement officer. Pursuant to Florida Statute § 316.1935: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with su...

...enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree,. . ." Fla. Stat. § 316.1935(1),(2)....

...Further, qualified immunity applies if the officer had arguable probable cause to arrest for any offense, not just the offense the officer articulated. Id. (1) James DeRosa James DeRosa was arrested for fleeing and eluding in violation of Florida Statute § 316.1935(1), resisting a law enforcement officer without violence in violation of Florida Statute § 843.02, and refusal to accept and sign a citation in violation of Florida Statute 318.14. (Doc. # 57, p. 9.) As discussed above, the Court finds that, viewing the facts in the light most favorable to plaintiffs, Deputy George had probable cause to arrest James for a violation of Florida Statute § 316.1935....

...ces establish that the person meets all elements of the offense. Williams, 307 Fed.Appx. at 358-59 (citations omitted). The Eleventh Circuit then noted that Florida recognized necessity or duress as an affirmative defense to a crime under Fla. Stat. § 316.1935, citing Rowley v....

...only known by plaintiffs, are considered. Since Deputy George had probable cause to arrest James, there is no constitutional violation for his arrest and detention. Additionally, since there was probable cause for James's arrest for Florida Statute § 316.1935, the Court need not address whether Deputy George had probable cause or arguable probable cause to arrest and detain James on the other charges....

...The Court concludes that Deputy George did not possess arguable probable cause to arrest Kathleen for violation of Fla. Stat. § 843.02. Deputy George argues, in the alternative, that there was probable cause to arrest Kathleen for fleeing and eluding a law enforcement officer in violation of Florida Statute § 316.1935....

...(1) James DeRosa In Count XIII James alleges that the incident report and charges made by Deputy George were malicious and the arrest was made without probable cause; that he was charged with Resisting Without Violence under Fla. Stat. § 843.02, Fleeing and Alluding under Fla. Stat. § 316.1935(1), and Refusal to Sign the citation under Fla....

...potential risk of physical injury to another.” See U.S.S.G. §§ 2K2.1(a)(2), 2K2.1 cmt. n.1, 4B1.2(a)(2). The court relied on two prior felony offenses: (1) a 2006 conviction for vehicular flight from a law enforcement officer under Fla. Stat. § 316.1935(1); and (2) a 2011 conviction for aggravated assault with a weapon....

...potential risk of injury to another,” not whether “every conceivable factual offense covered by [the] statute . . . necessarily present[s] a serious potential risk of injury.” James, 550 U.S. at 208–09, 127 S.Ct. at 1597. Travis was convicted under Fla. Stat. § 316.1935, which contains several subsections covering the use of a vehicle to flee or elude a police officer. Subsection (1), the specific provision under which Travis was convicted, makes it a third-degree felony “for the operator of any veh...

...or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order” or “willfully to flee in an attempt to elude the officer.” Fla. Stat. § 316.1935(1). Subsection (2) also makes it a third-degree felony to “willfully flee[] or attempt[] to elude a law enforcement officer,” but only where the officer is “in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed” and “with siren and lights activated.” Id. § 316.1935(2). Finally, subsection (3) increases the penalty associated with a violation of subsection (2) where the defendant flees “at high speed” or “in any manner which demonstrates a wanton disregard for the safety of persons or property.” Id. § 316.1935(3). 4  Case: 13-10400 Date Filed: 04/04/2014 Page: 5 of 10 The Supreme Court’s decision in Sykes v....

...United States, — U.S. —, 131 S.Ct. 2267 (2011), and our recent decision in United States v. Petite, 703 F.3d 1290 (11th Cir. 2013), dictate the outcome of this appeal by compelling a single conclusion: vehicle flight in violation of Fla. Stat. § 316.1935(1) constitutes a crime of violence for purposes of the sentencing guidelines....

...during and after the pursuit. Id. at 2274 (emphasis added). 5  Case: 13-10400 Date Filed: 04/04/2014 Page: 6 of 10 In Petite, we held that simple vehicle flight in violation of Fla. Stat. § 316.1935(2) is a violent felony under the ACCA....

.... that any form of intentional vehicle flight from a police officer presents powerful risks comparable to those presented by arson and burglary.” Id. at 1296, 1298. Travis contends that neither Sykes nor Petite compel the conclusion that vehicle flight in violation of Fla. Stat. § 316.1935(1) is a crime of violence because “Florida decisional law” makes clear that violations of that statute, unlike violations of § 316.1935(2) or Indiana’s vehicle flight statute, typically involve non-violent pursuits at low speeds over short distances....

...is far less likely “to result in potential injury to others or a dangerous confrontation” than 6  Case: 13-10400 Date Filed: 04/04/2014 Page: 7 of 10 when a defendant violates § 316.1935(2) by fleeing from a patrol car with its siren and lights activated. We disagree. Travis’ argument that violations of § 316.1935(1) are not crimes of violence because they typically do not involve high speeds or reckless driving was flatly rejected in both Sykes and Petite....

...crashes” and a 2008 study showing that 313 police pursuits over a 7-year period in 30 states resulted in injuries to police and bystanders). Similarly, in Petite we rejected the defendant’s contention that, because a typical offender of Fla. Stat. § 316.1935(2) “observes all traffic requirements” and “simply continues to drive without pulling over for the officer,” the offense does not pose a serious potential risk of injury....

...the law enforcement officer in the ordinary course of events.” Id. Contrary to Travis’ invitation for us to make the crime of violence determination based on the actual conduct involved in typical Florida prosecutions for violations of § 316.1935(1), “the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” See James, 550 U.S. at 208, 127 S.Ct. at 1597. The Supreme Court effectively answered that question in the affirmative when it ruled that violations of a virtually indistinguishable Indiana statute, which like § 316.1935(1) criminalized the simple act of fleeing from a police officer after 8  Case: 13-10400 Date Filed: 04/04/2014 Page: 9 of 10 being ordered to stop, present a serious potential risk of injury to others. Sykes, 131 S.Ct. at 2271–74. And we reaffirmed that conclusion in Petite by holding that simple vehicle flight under § 316.1935(2) is a violent felony for ACCA purposes because “any form of intentional vehicle flight from a police officer presents powerful risks comparable to those presented by arson and burglary.” 703 F.3d at 1296. That § 316.1935(1), unlike § 316.1935(2), does not require that the offender flee from a marked patrol vehicle with its sirens and lights activated does not meaningfully distinguish this case from either Petite or Sykes....

...sirens and lights activated, but instead, on “the dangers created by the law enforcement response that any act of intentional flight provokes.” Id. at 1298. And the vehicle flight statute at issue in Sykes was, as we have already noted, identical in every material respect to § 316.1935(1) — both statutes require nothing more than using a vehicle to flee after an officer has ordered the driver to stop. See Fla. Stat. § 316.1935(1) (prohibiting the willful failure to stop after being ordered to do so by a law enforcement officer); Ind....

...identified himself and ordered the person to stop”). 9  Case: 13-10400 Date Filed: 04/04/2014 Page: 10 of 10 Because Travis’ prior conviction for vehicle flight under Fla. Stat. § 316.1935(1) qualifies as a crime of violence under the sentencing guidelines, we affirm his sentence.3 AFFIRMED. 3 Travis requests that we “affirm [his] conviction without prejudice to his raising an ineffective assistance of counsel claim” in a collateral proceeding under 28 U.S.C....

...M.A.R., a juvenile, seeks review of the trial court’s order adjudicating him delinquent, placing him on probation, and suspending his driver’s license based on his admission to the offense of fleeing or eluding. M.A.R. argues that the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6), Florida Statutes (2008), apply to juveniles. Because sections 316.1935(5) and (6) do not contain a clear legislative mandate that they apply to juvenile proceedings, the court erred in determining that it was required to adjudicate M.A.R....

...delinquent and suspend his driver’s license under these provisions. Prior to entering his plea to the charge in this case, M.A.R. had filed motions asking the court to issue an order finding that an adjudication of delinquency and driver’s license revocation were not required under sections 316.1935(5) and (6)....

...The court held a hearing on the motions and issued an order denying relief. The court thereafter imposed sanctions including an adjudication of delinquency and suspension of M.A.R.’s driver’s license. *234 The issue on appeal is whether the mandatory sentencing provisions in sections 316.1935(5) and (6) apply to juveniles. Sections 316.1935(l)-(4) make it a crime to commit the offenses of fleeing or eluding a law enforcement officer and aggravated fleeing or eluding....

...Thus, adult sanctions are not applicable to juvenile proceedings unless the legislature makes them expressly applicable. Id. at 1282 . The resolution of this question will therefore turn upon “whether there is a clear legislative mandate to have sections” 316.1935(5) and (6) apply to juvenile proceedings. See T.L.S. v. State, 949 So.2d 290, 292 (Fla. 5th DCA 2007). In this case, no such mandate appears. Section 316.1935(5) applies to defendants “convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).” However, juveniles who have been adjudicated delinquent are not “convicted.” See § 985.35(6), Fla. Stat. (2008); State v. N.P., 913 So.2d 1, 2 (Fla. 2d DCA 2005); D.A. v. State, 11 So.3d 423, 423 (Fla. 4th DCA 2009). Thus, the mandatory sentencing provision of section 316.1935(5) does not apply....

...he term ‘conviction’ is used in chapter 322” and except for use in subsequent proceedings under chapter 985. § 985.35(6). Second, section 322.01(ll)(a) does not contain a clear legislative mandate that it apply to juvenile proceedings. As for section 316.1935(6), we recognize it is not limited to defendants “convicted” of particular violations. However, section 316.1935(6) likewise does not contain a clear legislative mandate that it apply to juvenile proceedings. Subsection 316.1935(6) states, in pertinent part, that “no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.” It does not reference juveniles or adjudications of delinquency or withholds of adjudication of delinquency....

...s not for the purposes of determining that the adult sanction contained a clear legislative mandate that it applied to juvenile proceedings. For these reasons, the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6) apply to juveniles....

...State, 648 So.2d 274, 276 (Fla. 4th DCA 1995); see also Dunbar v. State, 879 So.2d 98 (Fla. 4th DCA 2004); Phillips v. State, 834 So.2d 272, 274 (Fla. 5th DCA 2002). AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. NOTES [1] § 812.13(2), Fla. Stat. (2006). [2] § 316.1935(2), Fla....

...(2003) (involving offenses for drug trafficking and providing, "[n]otwithstanding the provisions of s. 948.01, with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld"); § 316.1935, Fla....

...during the course of the fleeing or attempted eluding, the defendant (1) drives at a high speed or in any manner demonstrating a wanton disregard for the safety of persons or property, and (2) causes serious bodily injury or death to another person. § 316.1935(3)(b)....

...th or serious bodily injury does not require death. We can discern no meaningful difference between DWLS causing death or serious bodily injury at issue in Cooper and the fleeing and eluding “caus[ing] serious bodily injury or death to another.” § 316.1935(3)(b) (emphasis added). According to the rationale in Cooper, that section 316.1935(3)(b) does not necessarily require that an individual cause the death of another to satisfy a prima facie case does not preclude it from being characterized as a “homicide” for the purpose of the single homicide rule....

...Just as in Cooper, McCullough was charged and sentenced pursuant to two statutes, one of which required causation of a death as a necessary element in all circumstances (vehicular homicide) and a second which could have been charged without any death (fleeing or eluding causing serious bodily injury or death). See §§ 316.1935(3)(b), 782.071(l)(a)....

...The legislature has clearly expressed its intent to allow for the crime of fleeing or eluding causing serious bodily injury or death to be charged together with leaving the scene of a crash with death, so long as the defendant was in the course of leaving the scene when they began to flee. § 316.1935(4)(b). McCullough was not, however, charged under section 316.1935(4)(b)....

...Appellant’s attorney overlooked the amendment, only realizing the oversight when conferencing on the final jury instructions with the trial court and State. He argued that he did not defend on the added element of wanton disregard while fleeing. See § 316.1935(2)(a), Fla....

...However, as we found need to do in Masterson v. State, 133 So.3d 1085, 1086 (Fla. 1st DCA 2014), we remand for the trial court to correct the written judgment to remove the word “aggravated” from the title of the crime for which Rhodes was convicted in Count 8. The judgment correctly cites section 316.1935(3)(a), Florida Statutes, and should show the offense as “fleeing or attempting to elude a law enforcement officer.” AFFIRMED; REMANDED with directions....

...Officer Crocker was unable to turn off the vehicle and it had to be towed while the engine was running. The defendant was charged with third-degree grand theft of a vehicle in violation of section 812.014(2)(c)(6), Florida Statutes (2004), willfully fleeing or attempting to elude a police officer in violation of section 316.1935(1), Florida Statutes (2004) and resisting an officer without violence in violation of section 843.02, Florida Statutes (2004)....

...There was also direct evidence that the defendant continued to flee from Officer Crocker after the officer activated his emergency lights and siren pursuing him until he came to a stop in a parking lot. Such evidence has been held sufficient to sustain a conviction, under section 316.1935(1), Florida Statutes (1983), for willfully fleeing in an attempt to elude an officer....

...The fleeing and eluding statute has three relevant subsections. Subsection (1) is a misdemeanor. It prohibits the willful refusal to stop when ordered to do so by an authorized police officer in a marked police vehicle and after "having stopped," willfully fleeing to elude the officer. § 316.1935(1), Fla. Stat. (2002). Subsection (2) converts the offense to a third degree felony by adding the officer's use of "lights and sirens" as an element of the crime. § 316.1935(2), Fla. Stat. (2002). Subsection (3) converts aggravated fleeing and eluding to a second degree felony by adding the elements of "high speed" or "wanton disregard" as elements of the crime. § 316.1935(3), Fla. Stat. (2002). The State charged the defendant with violating section 316.1935(3), Florida Statutes (2002). The Information alleged the defendant "did drive at high speed or did in any manner demonstrate a wanton disregard for the safety of persons or property, contrary to F.S. 316.1935(3)." The trial court instructed the jury as follows: To prove the crime of aggravated fleeing to elude a law enforcement officer, the state must prove the following five elements beyond a reasonable doubt....

...Stat., contains an explicit willfulness requirement. This instruction was adopted in 2016. 28.8(b) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

...Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Serious Injury Bodily Injury or Death) — 316.1935(4)(b) and 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT....

...NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving the Scene of 316.027(2)(b) 28.4 a Crash Involving Serious Bodily Injury* Aggravated Fleeing 316.1935(4)(a) 28.84 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving Scene of a 316.027(1)(b) 28.4 Crash Involving Death Leaving Scene of a 316.027(1)(a)(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 - 29 - Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire 316.072(3) 28.18 Department Officials Comments * § 316.1935(4), Fla....

...2d 1081] and amended in 2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2016. 28.8(c) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...- 31 -  Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.85 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials Comments * § 316.1935(4), Fla....

...3d 136], and 2015 [166 So. 3d 161], and 2016. 28.8(d) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

... Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and § 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT....

...NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving Scene of 316.027(2)(b) 28.4 Crash Involving Serious Bodily Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Leaving Scene of a 316.027(1)(b) 28.4 Crash Involving Death Leaving Scene of a 316.027(1)(a)(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire 316.072(3) 28.18 Department Officials Comments * § 316.1935(4), Fla....

...2d 1081] and amended in 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2016. 28.8(e) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...devices used exclusively upon stationary rails or tracks. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* - 38 -  Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials Comments * § 316.1935(4), Fla....

...um term “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under 947.149, prior to serving the mandatory minimum sentence.” § 316.1935(6), Fla....

...ion must be dismissed if they arose from the same criminal episode as the charges contained in the original information. State v. Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005). The State originally charged Mr. Whitehall with fleeing to elude under section 316.1935(1), Florida Statutes (2008): (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop...

...subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. On May 18, after the speedy trial time period expired, the State amended the charge to the second-degree felony fleeing to elude under section 316.1935(3): (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with...

...nse for the purposes of speedy trial. State v. D.A., 939 So.2d 149, 153 (Fla. 5th DCA 2006) (certifying conflict on other grounds with Insko v. State, 933 So.2d 679 (Fla. 2d DCA 2006), approved, 969 So.2d 992 (Fla.2007)). Here, the plain language of section 316.1935(3) contains additional elements that subsection (1) does not....

...her the law enforcement officers involved were driving "authorized law enforcement patrol vehicle[s], with agency insignia and other jurisdictional markings prominently displayed," or whether the vehicle(s) had both "siren and lights activated." See § 316.1935(3)....

...Whitehall's conviction for fleeing to elude at high speed or with wanton disregard for the safety of person and property. By its verdict of guilt for the greater offense, the jury found all elements of the necessarily-included lesser offense of fleeing to elude under section 316.1935(1). See Fla. Std. Jury Instr. (Crim.) 28.8 (designating an offense under section 316.1935(1) as a necessarily lesser-included offense of one under section 316.1935(3))....

...Gallegos to withdraw his pleas. Reversed and remanded with instructions and for further proceedings. VILLANTI and LaROSE, JJ., Concur. NOTES [1] This particular offense was charged as fleeing or attempting to elude at high speed which is a second-degree felony. See § 316.1935(3)(a), Fla....

...ed substance offense and the other was deemed to be a "crime of violence." U.S. Sentencing Guidelines Manual § 4B1.1(a). Hudson's two prior felony convictions include: (1) felony fleeing and eluding with siren and lights activated, Florida Statutes § 316.1935(2); and (2) sale of cocaine....

...concluded that carrying a concealed firearm is not a "crime of violence." U.S. v. Archer, 531 F.3d 1347 (2008). Less than a year later, the Eleventh Circuit concluded that felony fleeing and eluding with siren and lights activated, Florida Statutes § 316.1935(2), the same offense that served as the basis for Hudson's classification as a career offender, is not a "crime of violence." U.S....

...Harrison, 558 F.3d 1280 (11th Cir.2009); compare U.S. v. Harris, 586 F.3d 1283, 1289 (11th Cir.2009) (finding that felony fleeing and eluding with siren and lights activated at high speed or with wanton disregard of safety of others, Florida Statutes § 316.1935(3), is a "crime of violence")....

a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2017), and of possession

...vehicle, (3) the vehicle had its siren and lights activated, and (4) during the course of the fleeing or attempted eluding, Wandell drove at high speed or in any manner which demonstrated a wanton disregard for the safety of persons or property. See § 316.1935(3), Fla....

....” The officer in this case was fully authorized to stop the vehicle in which D.N. was a passenger. The officer had probable cause to arrest the driver (but not the passenger) for the offense of fleeing and eluding a police officer in violation of section 316.1935, Florida Statutes (2000)....

...§ 924(e)(1), after pleading guilty to possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Adams under the ACCA after finding that he had three prior convictions, two of which— third-degree fleeing or attempting to elude, in violation of Fla. Stat. § 316.19351— qualified as violent felonies under the residual clause of the ACCA....

...While Adams’s 1 One conviction for fleeing or attempting to elude was under subsection (1), fleeing or attempting to elude, and the other was under subsection (2), fleeing or attempting to elude (sirens and lights activated), of Fla. Stat. § 316.1935. 2 At the sentencing hearing, the government disavowed reliance on a fourth conviction to form the basis of the ACCA enhancement....

...United States, 576 U.S.__, 135 S. Ct. 2551, 2557-58 (2015). The government concedes that the residual clause of the ACCA is unconstitutional under Johnson. After Johnson, Adams’s convictions for fleeing or attempting to elude, under Fla. Stat. § 316.1935, can serve as predicate offenses only if they qualify as violent felonies under a different ACCA provision. But Fla. Stat. § 316.1935(1) and (2) do not have “as an element the use, attempted use, or threatened use of physical force against the person of another,” are not “burglary, arson, or extortion,” and do not involve the “use of explosives.”3 18 U.S.C. § 924(e)(2)(B)(i)-(ii). And the government concedes that after Johnson, Adams’s convictions for fleeing or attempting to elude, under Fla. Stat. § 316.1935, are no 3 Fla. Stat. § 316.1935(1) and (2) provide as follows: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly auth...

...Based on our independent review of the record and the supplemental briefs of counsel filed pursuant to this Court’s Causey 2 order, we find no reversible error but remand for correction of a technical error in the judgment. The State’s information charged Appellant with a violation of section 316.1935(3)(a), Florida Statutes (2010), relating to fleeing or attempting to elude a law enforcement officer, and the factual allegations in the information track the language of this statutory provision....

...The written judgment cites the correct statutory provision and degree of crime for the non-aggravated offense, but again, incorrectly uses the term “aggravated” in the title of the crime. Because it is clear that Appellant was charged with, and found guilty of, the non-aggravated offense proscribed by section 316.1935(3)(a), we affirm his conviction and sentence but remand for the trial court to correct the written judgment to reflect the title of the offense as “fleeing or attempting to elude a law enforcement officer.” See Jones v....

...ment is foreclosed by Matehett. Furthermore, this Court has concluded that the particular aggravated fleeing offense of which Casamayor was convicted — fleeing and eluding a police officer by driving at high speed, in violation of Florida Statutes § 316.1935(3) — constitutes a “crime of violence” under § 4B1.2(a)(2)’s residual clause....

V; U.S. Const. 1; Art. I, § 9, Fla. Const. .§ 316.1935(2), Fla. Stat. (third degree felony of fleeing

...Greene, Assistant Public Defender, West Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee. GERBER, J. The defendant below appeals his conviction for fleeing and eluding a law enforcement officer under section 316.1935(1), Florida Statutes (2006)....

...The defendant argues that the crime's standard jury instruction uses a word different from the statute, and that the trial court erred in denying the defendant's request to use the correct word from the statute. We find the terminology difference to be immaterial and affirm. Section 316.1935(1) provides, in pertinent part, "[i]t is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order." § 316.1935(1), Fla....

...Bill McCollum, Attorney General, Tallahassee, and Deborah A. Fraim, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Zachary Joerin appeals his judgment and sentence for fleeing or attempting to elude a law enforcement officer under section 316.1935(3)(a), Florida Statutes (2007), a second-degree felony....

GERBER, J. The issue presented is whether the circuit court erred in -withholding adjudication of guilt and failing to revoke the driver’s license of a defendant who committed aggravated fleeing and eluding. We find that section 316.1935, Florida Statutes (2008), prohibited the court from withholding adjudication of guilt and required the court to revoke the defendant’s driver’s license....

...shown remorse.” The court then accepted the defendant’s plea, withheld adjudication, and placed the defendant on probation. The state renewed its objection to the sentence before the hearing concluded. This appeal followed. The state argues that section 316.1935, Florida Statutes (2008), prohibited the court from withholding adjudication and required the court to revoke the defendant’s driver’s license. We agree with the state. Section 316.1935, entitled “Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding,” provides, in pertinent part: (5) The court shall revoke, for a period not less than 1 year nor exceeding 5 years, the driver’s...

...f a motor vehicle convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4). (6) ... [N]o court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.... § 316.1935, Fla. Stat. (2008). As we held in State v. Scriber, 991 So.2d 969 (Fla. 4th DCA 2008), “[section 316.1935(6) clearly prohibits a withhold of adjudication for a section 316.1935 violation.” Id. at 970 . We further held that section 316.1935 prevailed over the downward departure statute, section 921.0026, Florida Statutes, for two reasons. First, “[b]ecause [section 316.1935] is the later promulgated statute, section 316.1935(6) should prevail as the last expression of legislative intent on the subject of sentencing for an aggravated fleeing and eluding charge.” Id. (internal quotations and citation omitted). Second, because “section 316.1935(6) specifically addresses sentencing under section 316.1935 ......

...During the course of the pursuit, the appellant struck a car. After striking the car, he continued to flee the officer. The appellant was apprehended when the van he was driving stalled in a field. Thereafter, the appellant was charged with one count of aggravated fleeing or eluding in violation of section 316.1935(4), Florida Statutes (2002). Section 316.1935(4), provides, in relevant part: Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s....

...e constitutes fundamental reversible error. See Santiago, 847 So.2d at 1062; Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994). Nonetheless, the appellant did commit the lesser included offense of misdemeanor fleeing or eluding in violation of section 316.1935(1), Florida Statutes (2002)....

...See Santiago, 847 So.2d at 1062. Accordingly, we reverse the appellant's judgment and sentence for aggravated fleeing or eluding, and remand for the trial court to enter judgment and sentence for the lesser included offense of misdemeanor fleeing or eluding in violation of section 316.1935(1)....

...rcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 316.1935, Fla....

...Reversed and remanded with directions. MAY, CIKLIN and LEVINE, JJ., concur. . Florida’s fleeing to elude statute was amended in 2004 and now provides that fleeing to elude a law enforcement officer is a third degree felony (even if the officer did not activate lights and siren). § 316.1935(1), Fla....

...system); Henderson v. -7- State, 88 So. 3d 1060, 1063 (Fla. 1st DCA 2012) ("[W]hen the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2)."). Nor can we conclude based on Mr....

...A two-count information was subsequently filed charging appellant with grand theft of a motor vehicle and obstructing an officer without violence. However, the trial court also tried appellant on a third count, namely, the misdemeanor of fleeing or attempting to elude a police officer. See § 316.1935, Fla....

...M.A.R., a juvenile, seeks review of the trial court's order adjudicating him delinquent, placing him on probation, and suspending his driver's license based on his admission to the offense of fleeing or eluding. M.A.R. argues that the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6), Florida Statutes (2008), apply to juveniles. Because sections 316.1935(5) and (6) do not contain a clear legislative mandate that they apply to juvenile proceedings, the court erred in determining that it was required to adjudicate M.A.R....

...delinquent and suspend his driver's license under these provisions. Prior to entering his plea to the charge in this case, M.A.R. had filed motions asking the court to issue an order finding that an adjudication of delinquency and driver's license revocation were not required under sections 316.1935(5) and (6)....

...The court held a hearing on the motions and issued an order denying relief. The court thereafter imposed sanctions including an adjudication of delinquency and suspension of M.A.R.'s driver's license. *234 The issue on appeal is whether the mandatory sentencing provisions in sections 316.1935(5) and (6) apply to juveniles. Sections 316.1935(1)-(4) make it a crime to commit the offenses of fleeing or eluding a law enforcement officer and aggravated fleeing or eluding....

...Thus, adult sanctions are not applicable to juvenile proceedings unless the legislature makes them expressly applicable. Id. at 1282. The resolution of this question will therefore turn upon "whether there is a clear legislative mandate to have sections" 316.1935(5) and (6) apply to juvenile proceedings. See T.L.S. v. State, 949 So.2d 290, 292 (Fla. 5th DCA 2007). In this case, no such mandate appears. Section 316.1935(5) applies to defendants "convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4)." However, juveniles who have been adjudicated delinquent are not "convicted." See § 985.35(6), Fla. Stat. (2008); State v. N.P., 913 So.2d 1, 2 (Fla. 2d DCA 2005); D.A. v. State, 11 So.3d 423, 423 (Fla. 4th DCA 2009). Thus, the mandatory sentencing provision of section 316.1935(5) does not apply....

...t as the term `conviction' is used in chapter 322" and except for use in subsequent proceedings under chapter 985. § 985.35(6). Second, section 322.01(11)(a) does not contain a clear legislative mandate that it apply to juvenile proceedings. As for section 316.1935(6), we recognize it is not limited to defendants "convicted" of particular violations. However, section 316.1935(6) likewise does not contain a clear legislative mandate that it apply to juvenile proceedings. Subsection 316.1935(6) states, in pertinent part, that "no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section." It does not reference juveniles or adjudications of delinquency or withholds of adjudication of delinquency....

...s not for the purposes of determining that the adult sanction contained a clear legislative mandate that it applied to juvenile proceedings. For these reasons, the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6) apply to juveniles....

...State, 648 So.2d 274, 276 (Fla. 4th DCA 1995); see also Dunbar v. State, 879 So.2d 98 (Fla. 4th DCA 2004); Phillips v. State, 834 So.2d 272, 274 (Fla. 5th DCA 2002). AFFIRMED. GRIFFIN and THOMPSON, JJ., concur. . § 812.13(2), Fla. Stat. (2006). . § 316.1935(2), Fla....

...tigation report. We see no suggestion that the court failed to consider the scoresheet and presentence investigation report, and it is for the trial court to decide what is “adequate” consideration. AFFIRMED. SHARP, W. and PALMER, JJ., concur. . § 316.1935(3), Fla....

...testified that they were chasing the defendant in a “marked” police vehicle and defendant admitted that he knew he was fleeing from the police). We reverse, however, the $1000 fine, because the State erroneously informed the court that the fine was mandatory. Section 316.1935(2), Florida Statutes (2016), under which appellant was prosecuted, does not include a mandatory fine....

...3d DCA 2009); Lidiano v. State, 967 So.2d 972 (Fla. 3d DCA 2007), review denied, 983 So.2d 1154 (Fla.2008); Pringle v. State, 792 So.2d 533 (Fla. 3d DCA 2001), review denied, 817 So.2d 849 (Fla.2002). The conviction for fleeing or attempting to elude in violation of section 316.1935(3), Florida Statutes (2006), 1 however, is reduced to a third degree felony under section 316.1935(1) because, (1) as in Gorsuch *1209 v. State, 797 So.2d 649 (Fla. 3d DCA 2001), 2 there was no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed, as required by section 316.1935(3), see also Jackson v....

...4th DCA 2001), but is encompassed in subsection (1). The cause is remanded for resentencing accordingly. See § 924.34, Fla. Stat. (2006). No separate error is asserted in the misdemeanor convictions as to counts I and III. Affirmed as modified, remanded. . Sections 316.1935(1) and (3), state: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in com...

...2d 512, 514 (Fla. 1st DCA 2006), we said that “when the legislature intends to prohibit individuals from being eligible for gain-time during the service of a mandatory- minimum term of imprisonment, it uses explicit language to that effect.” For example, section 316.1935, which imposes a three-year mandatory minimum prison term for high-speed or aggravated fleeing and eluding of a law enforcement officer, states: “A person convicted and sentenced to a mandatory minimum term of incarceration unde...

...)(b) is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum sentence.” § 316.1935(6), Fla....

...4 Rather, the remedy would have been reversal of the conviction for the offense charged in the amended information and remand for entry of judgment and resentencing on the original charge. See Whitehall v. State, 81 So.3d 599 (Fla. 2d DCA 2012) (reversing conviction for fleeing to elude under section 316.1935(3) and remanding for entry of judgment on the original charge of fleeing to elude under section 316.1935(1) where the former charge was alleged in an amended information filed after expiration of the speedy trial period but the jury’s guilty verdict on that charge necessarily included a finding of guilt on the original charge)....

...Eventually, Harrigan veered off the road and crashed into a fence. Harrigan was apprehended and brought to a hospital for treatment of his gunshot wound. Harrigan was charged and tried in a Florida state court for (1) fleeing to elude a law enforcement officer, in violation of Fla. Stat. § 316.1935(3)(a); (2) reckless driving, in violation of Fla....

...aggravated felony is defined as “a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). On appeal, Dixon contends that his Florida state conviction for aggravated fleeing, Fla. Stat. § 316.1935(4)(a), was not an aggravated felony....

...pt to elude such officer and, as a result of such fleeing or eluding: (a) Causes injury to another person or causes damage to any property belonging to another person, commits aggravated fleeing or eluding . . . . Fla. Stat. § 316.1935(4)(a)....

...on of the risk that the offender will actively employ physical force against a third party or the third party’s property in committing the offense. B. The issue to resolve with respect to section 316.1935(4)(a), then, is whether it is an “offense[] that naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in committing an offense.” See id....

...Sin-gletary was charged with, among other things, aggravated assault on a law enforcement officer with a deadly weapon, a vehicle, in violation of section 784.07(2)(c), Florida Statutes (2000); and fleeing or attempting to elude a law enforcement officer at high speed in violation of section 316.1935(3), Florida Statutes (2000)....

...1st DCA 2001), review denied 805 So.2d 807 (Fla.2001) (finding that even constitutional error may be waived by a tactical decision on the part of defense counsel). Because we decide this issue on grounds of affirmative waiver, we need not consider whether we would follow the view of section 316.1935, Florida Statutes, subscribed to in Anderson v....

his prior conviction for violating Fla. Stat. § 316.1935(2)1 for “fleeing and eluding a law enforcement

...the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Raul J. Mari, in proper person. Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee. Before LOGUE, SCALES and GORDO, JJ. PER CURIAM.  Affirmed. See § 316.1935(1), Fla....

...tted after the amendment's effective date, and imposing a five year term of probation for resisting an officer. SENTENCES VACATED; REMANDED FOR RESENTENCING. DAUKSCH, W. SHARP and GOSHORN, JJ., concur. NOTES [1] Section 843.01 Fla. Stat. (1989). [2] Section 316.1935(1) Fla....

...There was testimony that after the cars stopped and appellant jumped out to run away, the police exited their vehicles and both yelled that they were police and could be seen wearing their police gear. Appellant was charged with fleeing or attempting to elude a law enforcement officer under section 316.1935(1), Florida Statutes (2001), which provides: (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse...

...Defender, Bartow, for Appellant. MORRIS, Judge. The State appeals the trial court's decision to withhold adjudication of guilt following Scott Bradley Rapson's no contest plea to fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(3), Florida Statutes (2017).1 Rapson concedes error on this point. "Section 316.1935(6) expressly prohibits the court from withholding adjudication of guilt for any violation of section 316.1935." State v....

...104 , 130 L.Ed.2d 52 (1994) (“Motions pursuant to rule 3.850 will not be considered ‘if filed more than 2 years after the judgment and sentence be *347 come final.”) (quoting Fla. R. Crim. P. 3.850(b)). AFFIRMED in part; REVERSED in part; REMANDED. COHEN and WALLIS, JJ., concur. . § 812.13, Fla. Stat. (2008). . § 316.1935, Fla....

...1 We use the phrase “fleeing or eluding” as a shorthand reference for the first-degree felony offense of fleeing or attempting to elude a law enforcement officer in an agency vehicle with siren and lights activated, at high speed, causing death or serious bodily injury. See § 316.1935(3)(b), Fla....

...The appropriate remedy under these circumstances is—as Appellant argues—to vacate the first-degree fleeing or eluding conviction and remand for entry of a judgment of conviction on the lesser included offense of second-degree fleeing or eluding under section 316.1935(3)(a), Florida Statutes....

...ion 782.071(1)(b), Florida Statutes, and identified the deceased victim, Alma Hardy. In Count II, the State charged Daniel with fleeing or attempting to elude a law enforcement officer at high speed causing serious bodily injury or death pursuant to section 316.1935(3)(b), Florida Statutes, and named as victims “ALMA L HARDY and/or RICHARD LEE HARDY and/or TOMIKI MONIQUE HARDY and/or LAQUIA ANDRONETTE REDMOND and/or SONJA DENISE HAYES and/or MARTIN HENDRICKS and/or RICHARDO HARDY.” The evide...

...Conversely, the offense of fleeing or attempting to elude a law enforcement officer at high speed causing serious bodily injury or death, does not require the death of victim; serious bodily injury of a victim is sufficient to support this offense. § 316.1935(3)(b), Fla....

...If he wishes to seek any relief from his lengthy sentence, he must file either a timely motion for reduction of sentence pursuant to rule 3.800(c) or a motion to withdraw his plea pursuant to rule 3.850. Affirmed with instructions. NORTHCUTT and LaROSE, JJ., Concur. . § 322.34(3)(a), Fla. Stat. (2004). . § 316.1935(3)(a), Fla....

...of aggravated fleeing or attempting to elude “a law enforcement officer in an authorized law enforcement vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated” pursuant to section 316.1935(3), Florida Statutes (2014)....

...the court cited the Third District’s decision in Gorsuch v. State, 797 So. 2d 649, 651 (Fla. 3d DCA 2001), which held that two officers’ unmarked vehicles and a third officer’s vehicle marked with a fifteen-inch City of Miami seal did not have the agency insignia required by section 316.1935(3)....

...ment patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated,” and more so if the eluder drives at a high speed or with wanton disregard for the safety of others. § 316.1935(2) & (3), Fla....

...sufficient evidence that Officer Landy’s vehicle had “agency insignia and other jurisdictional markings prominently displayed” on it. His motion was denied, and denied again at the conclusion of the case. Ellis was convicted of a second-degree felony under section 316.1935(3)(a), Florida Statutes....

...Violations and penalties are based on specific statutorily-defined scenarios. Penalties are severe, ranging from third to second degree felonies, plus mandatory revocation of drivers’ licenses and forfeiture of motor vehicles, if involved in the flight. § 316.1935(1)-(7), Fla....

...cle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order” or “having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer[.]” § 316.1935(1), Fla....

...enforcement officer while that officer is “in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated,” which is a third degree felony. Id. § 316.1935(2)....

...Similarly, subsection (3)(a)—under which Ellis was charged—makes it unlawful to engage in the criminal conduct defined in subsection (2), if the person “[d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property[.]” Id. § 316.1935(3)(a)....

...initial stop arising from narcotics surveillance. Two officers in the pursuit drove unmarked vehicles and the third had the vehicle with the city seal. Because there “was no evidence . . . that any of the vehicles had an insignia as required by subsection 316.1935(3),” and no demonstration that sirens had been operated during the 11 flight, the conviction under subsection (3)(a) was reversed and corrected to a violation of subsection (1). This Court followed Gorsuch’s reasoning in Slack v....

...even knew the car was from the Lake Alfred Police Department before he stopped to assist. In the absence of proof that the car was prominently marked, the evidence was insufficient to support a conviction for felony fleeing under section 316.1935(2). Id. at 542. Of note, the mere fact that another officer observed the patrol car was insufficient to create an inference that it was appropriately marked as required under sections 316.1935(2)-(3). See also Hanson v....

...But that is insufficient under the language of the statute and all other caselaw. Such an admission is enough to meet the requirements of subsection (1), which penalizes willfully-fleeing offenders who know they have “been ordered to stop such vehicle by a duly authorized law enforcement officer,” yet flee anyway. § 316.1935(1), Fla....

...But the Legislature created a different type of crime in subsections (2) and (3), which add the requirement that willful flight be from an “authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated[.]” Id. §§ 316.1935(2) & (3)....

...2004) (explaining that Florida law requires absence of probable cause as an element of the tort of malicious prosecution). They then submit that they had probable cause to arrest Williams for driving away from the initial traffic stop, which is itself a felony under section 316.1935, Florida Statutes....

...Sirmons and Mills indeed observed sufficient facts to give rise to probable cause to believe Williams was engaged in criminality. There is no genuine question that they observed Williams drive away from a traffic stop before she was given permission. On its face, that conduct violated section 316.1935, Florida Statutes....

...Accordingly, as in Ashley, the cause is remanded to the trial court for resentencing under the sentencing guidelines. CONVICTIONS AFFIRMED; CAUSE REMANDED FOR RESENTENCING. COBB, HARRIS and GRIFFIN, JJ., concur. NOTES [1] § 812.13(2)(a), Fla. Stat. [2] § 790.23, Fla. Stat. [3] § 316.1935, Fla....

...by offering or doing violence to the person of such officer," § 843.01, Fla. Stat., [6] and "attempt[ing] to elude a law enforcement officer [by] driv[ing] at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property," § 316.1935(3), Fla....

...He asserts that the trial court erroneously denied his motion to dismiss in which he maintained that the charge against him violated the prohibition against double jeopardy. We agree and reverse. The State intended to charge Kee with felony fleeing and eluding a law enforcement officer in violation of section 316.1935(2), Florida Statutes (1995)....

...llant. Robert A. Butterworth, Attorney General, Tallahassee and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee. FRANK, Acting Chief Judge. Stephanie Benton has appealed from her convictions for felony fleeing to elude, a violation of section 316.1935(2), Florida Statutes (1995), and reckless driving, a violation of section 316.192(1), Florida Statutes (1995)....

...ases raising “aggravated felony” and “violent felony” issues. The particular issue presented is whether the  Case: 12-12344 Date Filed: 03/26/2013 Page: 2 of 8 crime of simple vehicle flight as defined in Fla. Stat. § 316.1935(2) is an “aggravated felony” under § 2L1.2(b)(1)(C) of the sentencing guidelines....

...See United States Sentencing Guidelines § 2L1.2(a) (Nov. 2011). The PSR also indicated that Coronado-Cura had a felony conviction in Florida for fleeing or attempting to elude a police officer (also called simple vehicle flight), in violation of Fla. Stat. § 316.1935(2)....

...§ 2L1.2(b) because his Florida conviction for simple vehicle flight qualifies as an “aggravated felony” under § 2L1.2(b)(1)(C). At sentencing, the district court sustained the government’s objection, finding that as defined in Fla. Stat. § 316.1935(2) the crime of simple vehicle flight necessarily involves a “substantial risk of violent force” and therefore is an aggravated felony....

...§ 2L1.2(b)(1)(C) because his Florida conviction for 3  Case: 12-12344 Date Filed: 03/26/2013 Page: 4 of 8 simple vehicle flight is not an aggravated felony. The crime of simple vehicle flight is defined in Fla. Stat. § 316.1935(2), which provides: Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, 775.083, or s. 775.084. Fla. Stat. § 316.1935(2)....

...son or property of another during the crime. 4  Case: 12-12344 Date Filed: 03/26/2013 Page: 5 of 8 We held in Petite that a conviction for simple vehicle flight under Fla. Stat. § 316.1935(2) falls within the definition of “violent felony” under the ACCA....

...5  Case: 12-12344 Date Filed: 03/26/2013 Page: 6 of 8 Id. at 1296 (citations and quotation marks omitted). Applying the Sykes risk analysis, we concluded that simple vehicle flight under Fla. Stat. § 316.1935(2) is a violent felony for ACCA purposes....

...ases raising “aggravated felony” and “violent felony” issues. The particular issue presented is whether the  Case: 12-12344 Date Filed: 03/26/2013 Page: 2 of 8 crime of simple vehicle flight as defined in Fla. Stat. § 316.1935(2) is an “aggravated felony” under § 2L1.2(b)(1)(C) of the sentencing guidelines....

...See United States Sentencing Guidelines § 2L1.2(a) (Nov. 2011). The PSR also indicated that Coronado-Cura had a felony conviction in Florida for fleeing or attempting to elude a police officer (also called simple vehicle flight), in violation of Fla. Stat. § 316.1935(2)....

...§ 2L1.2(b) because his Florida conviction for simple vehicle flight qualifies as an “aggravated felony” under § 2L1.2(b)(1)(C). At sentencing, the district court sustained the government’s objection, finding that as defined in Fla. Stat. § 316.1935(2) the crime of simple vehicle flight necessarily involves a “substantial risk of violent force” and therefore is an aggravated felony....

...§ 2L1.2(b)(1)(C) because his Florida conviction for 3  Case: 12-12344 Date Filed: 03/26/2013 Page: 4 of 8 simple vehicle flight is not an aggravated felony. The crime of simple vehicle flight is defined in Fla. Stat. § 316.1935(2), which provides: Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, 775.083, or s. 775.084. Fla. Stat. § 316.1935(2)....

...son or property of another during the crime. 4  Case: 12-12344 Date Filed: 03/26/2013 Page: 5 of 8 We held in Petite that a conviction for simple vehicle flight under Fla. Stat. § 316.1935(2) falls within the definition of “violent felony” under the ACCA....

...5  Case: 12-12344 Date Filed: 03/26/2013 Page: 6 of 8 Id. at 1296 (citations and quotation marks omitted). Applying the Sykes risk analysis, we concluded that simple vehicle flight under Fla. Stat. § 316.1935(2) is a violent felony for ACCA purposes....

supported by the evidence presented in this case. Section 316.1935(2), Florida Statutes (2014), provides that

the statute making fleeing to elude a felony, § 316.1935(2), Florida Statutes (1995), is unconstitutionally

PER CURIAM. The evidence presented in this case was legally insufficient to establish that the pursuing officer had “agency insignia and other jurisdictional markings prominently displayed on the vehicle” as required by section 316.1935(3), Florida Statutes (1999)....

...Weekly D213 , — So.2d -, 2002 WL 63362 (Fla. 2d DCA Jan. 18, 2002). However, because the evidence was sufficient to establish the category one lesser included offense of misdemeanor fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(1) and because the jury was properly instructed on it, we remand, pursuant to section 924.34, Florida Statutes, for the trial court to enter a judgment of conviction for that offense....

...ng punished twice for one death, even though high-speed fleeing and eluding can be enhanced, as it was in that case, from a second-degree to a first-degree felony if the fleeing and eluding resulted in the death of a person. Id. at 648-49 ; see also § 316.1935(3)(a)-(b), Fla....

...Accordingly, we affirm the conviction and sentence for first-degree murder, but reverse and remand with instructions for the trial court to: (1) vacate the current judgment and sentence for Count II and enter judgment convicting Appellant of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(3)(a), Florida Statutes (2008); and (2) vacate the current judgment and sentence for Count IV and enter judgment convicting Appellant of driving without a valid license....

...However, this Court may still review the issue as to Count II because “such a claim raises a question of fundamental error that can be raised for the first time on direct appeal.” Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009) (citations omitted). . McKinney refers to section 316.1935(3)(b), Florida Statutes (2008), which includes the element of causing serious injury or death, as "fleeing and eluding.”

...Accordingly, we reverse and remand for consideration on the merits. Reversed and Remanded. BARFIELD, C.J., KAHN and PADOVANO, JJ., CONCUR. . We recognize that the classification of the offense in the judgment may have been a clerical error. The defendant was charged with aggravated fleeing and eluding under section 316.1935(3), Florida Statutes....

...2015). This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008 [SC07-1851, January 10, 2008] [973 So. 2d 432] and 2015. -6-  28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

...1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. -7-  Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1) CATEGORY ONE CATEGORY TWO FLA....

...2d DCA 2010). This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], and 2011 [73 So. 3d 136], and 2015. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1)(b) 28.5 there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3...

... This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], and 2011 [73 So. 3d 136] and 2015. 28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935 (3)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if Reckless driving 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing was in a motor vehicle) Disobedien...

...2d 1081], and 2011 [73 So. 3d 136] and 2015. 28.81(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) § 316.1935(3)(b), Fla....

...1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. - 12 -  Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(3)(b) CATEGORY CATEGORY FLA. STAT. INS. NO. ONE TWO Fleeing to elude 316.1935(3)(a) 28.8 Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving Reckless driving 316.192(1) 28.5 (if wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing is in a motor vehicle) Disobedience to...

...2d DCA 2010). This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 [73 So. 3d 136] and 2015. 28.82(b) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

...Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Serious Injury Bodily Injury or Death) — 316.1935(4)(b) and 316.027 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.84 Fleeing to Elude LEO 316.1935(1) 28.6 - 15 - Leaving Scene of a 316.027(1)(b) 28.4 Crash Accident Involving Death Leaving Scene of a 316.027(1)(a) 28.4 Crash Accident Involving Injury Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if Reckless Driving 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department...

...2d 1081] and amended in 2011 [73 So. 3d 136] and 2015. 28.83(c) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...devices used exclusively upon stationary rails or tracks. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.85 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if Reckless Driving 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18...

...2d 1081] and amended in 2011 [73 So. 3d 136] and 2015. 28.84(d) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

...- 20 -  Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and § 316.027 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving Scene of a 316.027(1)(b) 28.4 Crash Accident Involving Death Leaving Scene of a 316.027(1)(a) 28.4 Crash Accident Involving Injury Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if Reckless Driving 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.0...

...3d 136] and 2015. - 21 -  28.85(e) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...devices used exclusively upon stationary rails or tracks. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 - 23 - Reckless Driving (if Reckless Driving 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to P...

...tion fob Rehearing PER CURIAM. We grant appellant’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place. Appellant challenges his conviction for fleeing and eluding a law enforcement officer under section 316.1935(3)(a), Florida Statutes (2006), claiming that the state failed to prove an essential element of the crime, namely that a patrol vehicle in the chase had “agency insignia and other jurisdictional markings prominently displayed on the vehicle.......

...State, 23 So.3d 1207, 1208-09 (Fla. 3d DCA 2009); Jackson v. State, 818 So.2d 539, 542 (Fla. 2d DCA 2002); Gorsuch v. State, 797 So.2d 649, 650-51 (Fla. 3d DCA 2001). We therefore reverse with directions to reduce the conviction to a third degree felony under 316.1935(1)....

...Rule 3.850, Florida Rules of Criminal Procedure and other procedures for collateral relief may be used to present appellant’s post-trial attacks on the judgment, not this appeal from the judgment. AFFIRMED. W. SHARP and GRIFFIN, JJ., concur. . §§ 843.01 and 843.02, Fla.Stat. (1987). . § 316.1935, Fla.Stat....

...pled nolo contendere, in case numbers 96-5459 and 96-6584. In case number 96-5459, the charges were grand theft of a motor vehicle pursuant to § 812.014(2)(c)(6), and fleeing and attempting to elude a law enforcement officer with high speed pursuit pursuant to § 316.1935(2), both of which are third degree felonies; the state nolle prossed charges of burglary of a conveyance and resisting arrest without violence....

...Matheny, Jr. (Appellant) guilty, as charged, of one count of willfully refusing or failing to stop and fleeing a law-enforcement officer, who was driving a patrol vehicle with identifying insignia and who had activated the siren and lights, a violation of section 316.1935(2), Florida Statutes (2007) (Count One); and one count of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007) (Count Two)....

...rom the vehicle, Appellant remained seated, grabbed the steering wheel of the truck with both hands, and resisted until Sergeant Curtis was able forcibly to disengage Appellant's grip and pull him to the ground. The officers then arrested Appellant. Section 316.1935(2), Florida Statutes (2007), makes it a third-degree felony willfully to flee or attempt to elude a law-enforcement officer who is in an authorized law-enforcement vehicle with agency insignia and other prominently displayed jurisdictional markings and activated siren and lights....

...uction with regard to robbery because the defense at trial was one of misidentification). Affirmed. WETHERELL and MARSTILLER, JJ., concur. . Appellant’s simultaneous convictions for felony fleeing or attempting to elude an officer, in violation of section 316.1935(2), Florida Statutes (2011), and for resisting an officer with violence, in violation of section 843.01, Florida Statutes (2011), stand unchallenged....

...Shanahan, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. Gary Leroy Lucas appeals his judgment and ten-year prison sentence for leaving the scene of an accident, fleeing and attempting to elude a police officer, and burglary of an unoccupied structure. See §§ 316.063(1), 316.1935(1), 810.02(1)(b)(4), Fla....

...having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer. 1 In re Standard Jury Instructions in Criminal Cases, 73 So. 3d 136, 137-38 (Fla. 2011) (Standard Jury Instruction 28.6, Fleeing to Elude a Law Enforcement Officer, § 316.1935(1)). -2- Mr....

...2d DCA 2010) (holding defendant was entitled to have jury instructed on disobeying a lawful order by law enforcement as a lesser included offense of fleeing and eluding). Mr. Lucas requested the instruction. The information tracked the language of section 316.1935(1) (fleeing to elude a law enforcement officer). Necessarily, therefore, the information alleged the elements of "willfully [failing] or refus[ing] to comply with any lawful order or direction of any law enforcement officer" under section 316.072(3)....

...ter public works complex. Cunniff then rammed the truck through the back chain-link fence of the Clearwater Airpark before the truck got stuck on a road that was under construction. Cunniff was charged with aggravated fleeing and eluding pursuant to section 316.1935(4), Florida Statutes (2003). Section 316.1935(4) states: Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s....

...rson commits aggravated fleeing or eluding, a felony of the second degree. . . . In Santiago v. State, 847 So.2d 1060 (Fla. 2d DCA 2003), this court held that it was fundamental error to convict Santiago of aggravated fleeing and eluding pursuant to section 316.1935(4) because he was not leaving or attempting to leave the scene of a crash as defined in the statute but rather was leaving the scene of a shooting....

...ng the scene of a crash, it was fundamental error to convict Santiago of a crime that never occurred. Had Cunniff's appellate counsel argued, based on Santiago, that it was fundamental error to convict Cunniff of aggravated fleeing and eluding under section 316.1935(4) because he was not leaving the scene of a crash when he fled, we would have been compelled to reverse his conviction....

...ntence imposed thereon. See Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004). We remand with instructions to the trial court to enter judgment for the lesser-included offense of fleeing or attempting to elude a law enforcement officer under section 316.1935(1)....

THOMPSON, Judge. John Basil Keough appeals his conviction for aggravated fleeing and eluding. We affirm. Keough was convicted of aggravated fleeing and eluding, which is proscribed by section 316.1935(2), Florida Statutes: (2) Any person who, in the course of unlawfully fleeing or attempting to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings pro...

...a duly authorized law enforcement officer, causes the law enforcement officer to engage in a high-speed vehicle pursuit commits a felony of the third degree, punishable as provided in Sec. 775.082, Sec. 775.083, or Sec. 775.084. Keough contends that section 316.1935(2) is unconstitutionally vague because there is no definition of “high speed,” and because “causes the law enforcement officer to engage,” is not explained....

...Based on these facts, and on Travis v. State, 700 So.2d 104 (Fla. 1st DCA 1997), Fox v. State, 700 So.2d 172 (Fla. 4th DCA 1997), and State v. Barnes, 686 So.2d 683 (Fla. 2d DCA 1996), with which we agree, we hold that Keough has failed to show that section 316.1935(2) is constitutionally infirm....

...He argues that his earlier Florida conviction for felony fleeing to elude should not have counted as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A). This Court has already held that a conviction for felony fleeing to elude under Fla. Stat. § 316.1935(2) qualified as a violent felony under the residual clause of the Armed Career Criminal Act....

...and was planning to sell them. Garces was initially charged with trafficking in cocaine, in violation of Fla. Stat. § 893.135; aggravated assault, in violation of Fla. Stat. § 784.021; and willfully fleeing, in violation of Fla. Stat. § 316.1935....

...and was planning to sell them. Garces was initially charged with trafficking in cocaine, in violation of Fla. Stat. § 893.135; aggravated assault, in violation of Fla. Stat. § 784.021; and willfully fleeing, in violation of Fla. Stat. § 316.1935....

...fleeing or attempting to elude law enforcement. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.140(c)(1)(L).  Hanberry was charged with fleeing or attempting to elude law enforcement, a third-degree felony violative of section 316.1935(2), Florida Statutes (2023)....

...The trial court, over the State’s objection, withheld adjudication of guilt and placed Hanberry on probation. * This appeal followed. The State, as it did below, argues that withholding adjudication of guilt on the fleeing charge brought under section 316.1935 constitutes an illegal sentence because withholding adjudication is expressly prohibited by that statute. Hanberry’s appellate counsel, as an officer of the court, commendably—and rightly—concedes the trial court erred in withholding adjudication. Section 316.1935 sets forth the crime of fleeing or attempting to elude law enforcement officers, as well as the circumstances in which a charged defendant is exposed to an aggravated sentence therefor. See § 316.1935(1)–(4), Fla. Stat. Pertinent here, section 316.1935(6), provides in part, “Notwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.” § 316.1935(6), Fla. Stat. Thus, as the statute plainly requires, Florida trial courts are without legal prerogative to withhold adjudication of guilt when a defendant pleas to or is found guilty of fleeing or attempting to elude law enforcement under section 316.1935....

...review conclusions of law de novo. Atac v. State, - So.3d -, 38 Fla. L. Weekly D610 , 2013 WL 950052 (Fla. 4th DCA 2013); Springer v. State, - So.3d -, 38 Fla. L. Weekly D547 , 2013 WL 811673 (Fla. 4th DCA 2013). Appellant was charged with violating section 316.1935(1), Florida Statutes (2012), which, in pertinent part, provides: It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, will...

...was no charge of fleeing or attempting to elude. In our case, when the officers attempted to pull appellant over with lights and sirens activated, appellant continued to drive for nearly two miles, providing probable cause to stop him for violating section 316.1935(2)....

...In Green , the majority concluded that, even though the defendant was stopped initially due to an illegal checkpoint, since the defendant did not stop despite hand signals and verbal orders to stop from the police, “[h]is stop for fleeing a police officer pursuant to section 316.1935 ... was valid.” Id. Lastly, though in a different context, this court has interpreted section 316.1935, Florida Statutes, consistently....

...o the charge of fleeing or attempting to elude. Id. We find the trial court erred in suppressing the post-stop identification where the deputy had probable cause that *64 appellee committed the crime of fleeing or attempting to elude in violation of section 316.1935(1), regardless of whether probable cause initially justified the stop of ap-pellee....

the vehicle, with siren and lights activated,” § 316.1935(3), Fla. Stat. (2019) (emphasis added), which

offense. The statute involved in this case, section 316.1935, prohibits fleeing or attempting to elude

PER CURIAM. The evidence presented in this case was legally insufficient to establish that the *289 pursuing officer had “agency insignia and other jurisdictional markings prominently displayed on the vehicle” as required by section 316.1935(2), Florida Statutes (2010). See Slack v. State, 30 So.3d 684 (Fla. 1st DCA 2010); Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001). However, because the evidence was sufficient to support a conviction for the lesser included offense set forth in section 316.1935(1) and the jury necessarily found that the elements of such lesser offense were proven, we remand, pursuant to section 924.34, Florida Statutes (2010), for the trial court to enter a judgment of conviction for that offense....

a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2017), and of possession

convicted of fleeing or attempting to elude under section 316.1935(2), Florida Statutes. . And probably a Bruton

...ea bargain in a criminal proceeding does not determine the outcome in a related civil forfeiture proceeding. Robert McCormick, Jr. was arrested for fleeing or attempting to elude a law enforcement officer in violation of one of the subsections of section 316.1935, Florida Statutes (2014). The subsections of the statute describe various types of fleeing, all of which are classified as felonies. Subsection 316.1935(7) provides that “[a]ny motor vehicle involved in a violation of [section 316.1935] is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture pursuant to ss....

...One of the Forfeiture Act’s definitions of a “contraband article” is “[a]ny . . . vehicle of any kind . . . which was used or was attempted to be used as an instrumentality in the commission of . . . any felony.” § 932.701(2)(a)5., Fla. Stat. (2014). Operating under the authority of subsection 316.1935(7), the Sheriff’s Office filed a forfeiture complaint directed at McCormick’s truck based on a violation of section 316.1935. See § 932.704(4), Fla. Stat. (2014). McCormick moved for summary judgment; the gist of his argument was that, in his criminal case, he pleaded guilty to a misdemeanor, not to any felony violation of section 316.1935....

...n re Forfeiture of $31,252.00 U.S. Currency, 550 So. 2d 537, 538 (Fla. 4th DCA 1989). Thus, in this case, even though McCormick pleaded guilty to a misdemeanor, the Sheriff has the chance to prove the existence of felony fleeing or eluding under section 316.1935 in the forfeiture proceeding. We reverse the judgment in favor of McCormick and remand to the circuit court for further proceedings. GERBER and KLINGENSMITH, JJ., concur. * * *...

...That’s payable in at least equal monthly installments while under supervision. I am obligated to order his driver’s license be suspended for one year. When viewed in context, it appears that the trial court was likely referring to its obligation to revoke Jenkins’s driver’s license pursuant to section 316.1935(5), Florida Statutes (2020), due to the fleeing-and-eluding conviction, which the court did by separate order....

...A “motor vehicle” is a self-propelled vehicle not operated upon rails or guideway[, but not including any bicycle, motorized scooter, electric personal assistive mobility device, mobile carrier, personal delivery device, swamp buggy, or moped]. Fla. Stat. § 316.1935, Fla....

...NO. None Attempt 777.04(1) 5.1 Comment This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2012 [95 So. 3d 868], and 2013 [31 So. 3d 755], and 2019. 28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1) CATEGORY ONE CATEGORY TWO FLA....

...2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2018 [236 So. 3d 244], and 2019. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1)(b) 28.5 there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3...

...2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], and 2018 [236 So. 3d 244], and 2019. 28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935 (3)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing was in a motor vehicle) Disobedien...

...3d 161], and 2018 [236 So. 3d 244], and 2019. 28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) § 316.1935(3)(b), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses - 49 - FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(3)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(3)(a) 28.8 Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing is in a motor vehicle) Disobedience to...

...3d 161], and 2018 [236 So. 3d 244], and 2019. 28.8(b) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

...d Offenses - 53 -  AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Serious Injury Bodily Injury or Death) — 316.1935(4)(b) and 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA....

...INS. NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving the Scene of 316.027(2)(b) 28.4 a Crash Involving Serious Bodily Injury* Aggravated Fleeing 316.1935(4)(a) 28.8428.8(d) Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude 316.1935(1) 28.6 LEO Fleeing to Elude LEO 316.1935(3)(b) 28.8128.8(a) Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire 316.072(3) 28.18 Department Officials** Comments * § 316.1935(4), Fla....

...3d 1190], and 2018 [236 So. 3d 244], and 2019. 28.8(c) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...stationary rails or tracks]. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.8528.8(e) Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.8128.8(a) Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials** Comments * § 316.1935(4), Fla....

...3d 1190], and 2018 [236 So. 3d 244], and 2019. 28.8(d) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

...-  Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and § 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA....

...Death* Leaving Scene of 316.027(2)(b) 28.4 Crash Involving Serious Bodily Injury* Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude 316.1935(1) 28.6 LEO Fleeing to Elude LEO 316.1935(3)(b) 28.8128.8(a) Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire 316.072(3) 28.18 Department Officials** Comments * § 316.1935(4), Fla....

...3d 1190], and 2018 [236 So. 3d 244], and 2019. 28.8(e) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...stationary rails or tracks]. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.8128.8(a) Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials** Comments *§ 316.1935(4), Fla....

...ter, we reverse for imposition of a conviction and sentence for that offensé. Appellant was charged with (1) attempted second degree murder of a law enforcement officer with a weapon; (2) high speed or wanton fleeing law enforcement in violation of section 316.1935(3)(a), Florida Statutes (2013); and (3) leaving the scene of an accident resulting in property damage in violation of section 316.061(1), Florida Statutes (2013)....

, concur. . § 784.021(l)(a), Fla. Stat. . § 316.1935(2), Fla. Stat. .§ 790.23, Fla. Stat. . Pierce

...special condition concerning restitution. In the event that the restitution was not reduced to judgment, the trial court has the authority to enter that order. Affirmed in part, reversed in part, and remanded. CASANUEVA and DAVIS, JJ., Concur. . See § 316.1935(3)(a), Fla....

...Phillips, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. Arnell B. Lykes appeals his conviction of fleeing to elude a law enforcement officer at a high speed or with wanton disregard for the safety of persons or property in violation of section 316.1935(3)(a), Florida Statutes (2006)....

...Under the applicable fleeing statute, there are two alternative ways to prove a defendant guilty: by showing that (1) the defendant fled law enforcement officers at high speed, or (2) he fled in any manner demonstrating a wanton disregard for the safety of persons or property. § 316.1935(3)(a), Fla....

PER CURIAM. A jury returned a verdict finding defendant guilty as charged of second degree aggravated fleeing and eluding police officers in violation of section 316.1935, Florida Statutes (1999)....

...Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner -3-  APPENDIX 28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

...1st DCA 1987). -4-  “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1) CATEGORY ONE CATEGORY TWO FLA....

...2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], and 2019 [262 So. 3d 59], and 2020. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla....

...1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. -6-  Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1)(b) 28.5 there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3...

...2d 1081], 2011 [73 So. 3d 136], 2015 [166 So. 3d 161], 2018 [236 So. 3d 244], and 2019 [262 So. 3d 59], and 2020. 28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla....

...1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. -8-  Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935 (3)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing was in a motor vehicle) Disobedien...

...3d 244], and 2019 [262 So. 3d 59], and 2020. 28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) § 316.1935(3)(b), Fla....

...rails or tracks]. Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(3)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(3)(a) 28.8 Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing is in a motor vehicle) Disobedience to...

...fleeing and eluding poses a great risk of physical harm to others, it can be committed without the use of physical force or violence against an individual by merely driving at a high speed or by driving in a manner showing wanton disregard for property. See § 316.1935(3)(a), Fla....

...Stat., which, unlike § 316.063, Fla. Stat., contains an explicit willfulness requirement. This instruction was adopted in 2016 [192 So. 3d 1190] and amended in 2018. 28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1) CATEGORY ONE CATEGORY TWO FLA....

...[765 So. 2d 692] and amended in 2008 [976 So. 2d 1081], 2011 [73 So. 3d 136], and 2015 [166 So. 3d 161], and 2018. 28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1)(b) 28.5 there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3...

...3d 136], and 2015 [166 So. 3d 161], and 2018. - 15 -  28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935 (3)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing was in a motor vehicle) Disobedien...

...3d 161], and 2018. - 17 -  28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) § 316.1935(3)(b), Fla....

...State, 512 So. 2d 1109 (Fla. 1st DCA 1987). “Willfully” means intentionally, knowingly, and purposely. Lesser Included Offenses FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(3)(b) CATEGORY CATEGORY FLA. STAT. INS. NO. ONE TWO Fleeing to elude 316.1935(3)(a) 28.8 Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving 316.192(1) 28.5 (if wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing is in a motor vehicle) Disobedience to...

...3d 136], and 2015 [166 So. 3d 161], and 2018. 28.8(b) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.027, Fla....

...Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Serious Injury Bodily Injury or Death) — 316.1935(4)(b) and 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT....

...NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving the Scene of 316.027(2)(b) 28.4 a Crash Involving Serious Bodily Injury* Aggravated Fleeing 316.1935(4)(a) 28.84 Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) - 23 -  Disobedience to Police or Fire Department 316.072(3) 28.18 Officials** Comments * § 316.1935(4), Fla....

...3d 1190], and 2018. - 24 -  28.8(c) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) § 316.1935(4)(b) and § 316.061, Fla....

...devices used exclusively upon stationary rails or tracks. Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) — 316.1935(4)(b) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.85 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials** - 26 -  Comments * § 316.1935(4), Fla....

...3d 1190], and 2018. - 27 -  28.8(d) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.027 Fla....

... Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and § 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT....

...Leaving Scene of 316.027(2)(b) 28.4 Crash Involving Serious Bodily Injury* Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3) 28.18 Officials** Comments * § 316.1935(4), Fla....

...3d 161], and 2016 [192 So. 3d 1190], and 2018. 28.8(e) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla....

...- 33 -  Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) — 316.1935(4)(a) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials** Comments * § 316.1935(4), Fla....

...White filed a letter with the postconviction court contending that his written judgment does not accurately reflect one of the crimes to which he entered a plea of no contest. Mr. White pleaded no contest to two offenses. One of these offenses was "fleeing and eluding (high speed)," a violation of section 316.1935(3)(a), Florida Statutes (2013). The judgment and sentence characterize this offense as "aggravated fleeing and eluding," which is a violation of section 316.1935(4)(a), a different offense.  The postconviction court treated Mr....

...TES? We accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160. The appellant, J.R.S., a minor, was convicted in county court of the' offense of fleeing or attempting to elude a police officer, a violation of section 316.1935, Florida Statutes (1983)....

...county jail pending this review. J.R.S. appeals the final order imposing incarceration as a condition of probation, focusing his argument on the issues raised by the county court’s certified question. This matter requires us to interpret sections 316.1935 and 316.655(4), Florida Statutes (1983), as they pertain to juveniles convicted of criminal traffic offenses. The issue appears to be one of first impression. Section 316.1935 provides that “any person” found to have violated that provision “shall, upon conviction, be punished by imprisonment in the county jail for a period not to exceed 1 year, or by fine not to exceed $1,000, or by both such fine and imprisonment.” The county court has jurisdiction over minors charged with violating section 316.1935, a non-felony criminal traffic offense. § 316.635, Fla.Stat. (1983). Section 316.655(4), Florida Statutes (1983), states that “any person convicted of a violation of...s. 316.1935 ......

...The receiving facility shall have adequate staff to supervise and monitor the minor’s activities at all times. Nothing in this paragraph shall prohibit the placing of two or more minors in the same cell. § 316.655(4), Fla.Stat. (1983) (emphasis added). Appellant concedes that, under a literal reading of sections 316.1935 and 316.655, a county court judge has the authority to incarcerate a minor for a violation of section 316.1935....

...Recognizing that the legislature has the final word in this matter, appellant urges us to examine the history behind the statutes and find a legislative intent to protect juveniles convicted of criminal traffic offenses. We find, however, that we need not look behind the express language of sections 316.1935 and 316.655(4) to determine legislative intent....

...Drinks on the Beach, 457 So.2d 519 (Fla. 2d DCA 1984). The Florida Legislature has expressly provided that a judge has discretion to either impose the alternate sanctions of section 316.655(4) or order a prison sentence in county jail for up to one year under section 316.1935. Accordingly, the county court judge in the instant case was authorized to require appellant to serve the jail sentence imposed under section 316.1935....

...We affirm Appellant’s convictions on all counts. However, upon the State’s concession of error, we reverse and remand for correction of the sentencing score sheet. We agree that the primary score sheet offense of felony fleeing to elude law enforcement with lights and sirens activated under § 316.1935(2), Florida Statutes, should be scored as a level 3 offense, see § 921.0022, Fla....

PATTERSON, Acting Chief Judge. We affirm Marvin Gulley’s conviction under section 316.1935(2), Florida Statutes (1995), for fleeing or attempting to elude a police officer, on the basis of State v....

...In Count III, the state alleged that Appellant fled from “Deputy Jason Levine and Deputy Chet Parker, a law enforcement officer ... in an authorized ... vehicle with agency insignia ... with lights and sirens activated, “in violation of Florida Statute 316.1935(2).” (Emphasis supplied). In Count IV, Appellant was charged with violating the same statute, section 316.1935(2), by fleeing from “a duly authorized law enforcement officer ..., to wit: Deputy Jason ’Levine and Deputy Chet Parker, in an authorized ......

...fendant flees or attempts to elude more than one law enforcement officer, even if all of the proscribed acts occur during a single episode,” the First District Court of Appeal held that the defendant could separately be charged and convicted under section 316.1935(1), related to fleeing the officer in the first county, and under , section 316.1935(2), for fleeing in the second county. We do not think it material to the First District’s decision that the episode there occurred in different counties, nor was it pertinent that the defendant there was charged under two different subsections of section 316.1935....

...*698 The foregoing notwithstanding, the state urges that Appellant’s convictions can be sustained because he committed two distinct offenses chargeable under two different subsections of the statute. In support of this contention, the state suggests that Count IV was intended to charge a violation of section 316.1935(3), but that, due to a scrivener’s error, the wrong statute was cited in the information. We reject this argument for two reasons: First, we fail to see any indication that a scrivener’s error occurred. A violation of section 316.1935(3) is a second degree felony, yet Appellant’s charge and conviction under count IV was for a third degree felony, consistent with a violation of subsection (2)....

...t and sentence and cannot now modify the charge by arguing that it intended for Appellant to be charged with a different offense, especially when the new charge is one for which the potential punishment is greater. 1 Second, because every element of section 316.1935(2) is included within section 316.1935(3), convictions under both subsections may not be based on the same episode of fleeing from the same officer....

including aggravated fleeing or eluding under section 316.1935(2), Florida Statutes (1997). This court lacks

...ph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee. KUNTZ, J. The Defendant appeals his conviction of fleeing a law enforcement officer at a high speed or wanton disregard for the safety of persons or property under section 316.1935(3)(a), Florida Statutes (2016)....

...Because the State failed to establish a wanton disregard for the safety of persons or property, we reverse the conviction and sentence and remand for the entry of a judgment of conviction and sentence on the lesser included offense of fleeing to elude a law enforcement officer with sirens and lights activated under section 316.1935(2), Florida Statutes (2016). Background At trial, the State called a detective with the Martin County Sheriff’s Office....

...lights activated and “[d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” § 316.1935(3)(a), Fla....

...a second-degree felony, and vacate the court’s sixty-month sentence. On remand, the court shall issue a judgment of conviction and sentence for the lesser-included offense of fleeing to elude a law enforcement officer with sirens and lights activated pursuant to section 316.1935(2), Florida Statutes (2016), a third-degree felony. Reversed in part, vacated in part, and remanded. GERBER, C.J., and GROSS, J., concur. * * * Not final until disposition of timely...

judge’s order, entered after trial, declaring section 316.1935(2), Florida Statutes (1995), unconstitutional

...ON REMAND FROM THE UNITED STATES SUPREME COURT Before CARNES, Chief Judge, TJOFLAT and PRYOR, Circuit Judges. PRYOR, Circuit Judge: This appeal on remand from the Supreme Court requires us to decide whether fleeing and eluding a law enforcement officer, Fla. Stat. § 316.1935(2), is categorically a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)....

...§ 924(e). Smith objected to the classification of his prior conviction for “willfully flee[ing] or attempt[ing] to elude a law enforcement officer in an authorized [and marked] law enforcement patrol vehicle . . . with [its] siren and lights activated,” Fla. Stat. § 316.1935(2), as a violent felony....

...cuments to determine the nature of 3 Smith’s offense.” Id. at 775. We also rejected Smith’s argument that our decision in United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009) (concluding that section 316.1935(2) did not qualify as a violent felony), controlled the outcome of his appeal because we had since held that “Harrison [had] been undermined to the point of abrogation by Sykes” when Smith’s appeal was pending. Petite, 703 F.3d at 1299. In Petite we held that a “prior conviction for vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifie[d] as a violent felony under the Armed Career Criminal Act.” Id. at 1301. We affirmed Smith’s sentence and held that “the district court did not err in treating Smith’s prior conviction [under section 316.1935(2)] as a predicate offense.” Smith, 518 F....

...record or the law of our Court, see United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009), and we conduct our own analysis affirming Smith’s enhanced sentence. We conclude that, based on the text of the Florida statute and other authorities, section 316.1935(2) prohibits vehicular flight, 6 but, in any event, fleeing and eluding a law enforcement officer, whether on foot or in a vehicle, is categorically a violent felony. The whole text of the Florida statute supports our interpretation in Petite that section 316.1935(2) prohibits vehicular flight. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“The text must be construed as a whole.”). Section 316.1935(2) is the lesser-included-offense of aggravated vehicle flight defined in section 316.1935(3)....

...subsection (3) imposes a harsher penalty for any person who, while fleeing or attempting to elude the officer, “[d]rives at a high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property.” Fla. Stat. § 316.1935(3)....

...Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 528–29, 67 S. Ct. 1387, 1391–92 (1947))); see also Scalia & Garner, supra, at 221 (“The title and headings are permissible indicators of meaning.”). In addition, a punishment for a violation of section 316.1935(2) is revocation of the offender’s driver’s license, Fla. Stat. § 316.1935(5), and “[a]ny motor vehicle” involved in the offender’s flight “is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture.” Id. § 316.1935(7). These penalties are rationally related to the crime of vehicular flight, not pedestrian flight. The standard criminal jury instruction adopted by the Supreme Court of Florida for section 316.1935(2) provides, as follows, that the prosecution must prove that the offender fled or attempted to elude an officer while operating a motor vehicle: To prove the crime of Fleeing to Elude a Law Enforcement Officer, the...

...2d 1012 (Fla. 4th Dist. Ct. App. 2001), because the “court’s concern was that Anderson risked being convicted of a third-degree felony fleeing and eluding offense solely upon proof of what occurred after he stopped [his vehicle]”). Because section 316.1935(2) prohibits only vehicular flight, we are bound by our decision in Petite that a prior conviction for fleeing and eluding a law enforcement officer is a violent felony....

...1586, 1593–94 (2007), we must conclude that fleeing and eluding an officer, whether on foot or in a vehicle, “as a categorical matter, . . . presents a serious potential risk of physical injury to another.” Sykes, 131 S. Ct. at 2273. In Petite, we concluded that section 316.1935(2) shared the same serious potential risks of physical injury as those risks identified by the Supreme Court in Sykes, which involved an Indiana statute prohibiting flight from law enforcement....

...ar flight. If the offender flees on foot, the officer is likely to pursue the offender in a vehicle because the statute states that the offender must flee “a law enforcement officer in an authorized law enforcement patrol vehicle.” Fla. Stat. 316.1935(2) (emphasis added); see also Petite, 703 F.3d at 1296 (“[W]e are obliged to look beyond the driving conduct of the offender alone.”)....

...confrontation leading to violence.” Id. at 2273. The district court correctly enhanced Smith’s sentence under the Armed Career Criminal Act. Under Sykes and Petite, a prior conviction for fleeing and eluding a law enforcement officer, Fla. Stat. § 316.1935(2), qualifies as a violent felony....

...ON REMAND FROM THE UNITED STATES SUPREME COURT Before CARNES, Chief Judge, TJOFLAT and PRYOR, Circuit Judges. PRYOR, Circuit Judge: This appeal on remand from the Supreme Court requires us to decide whether fleeing and eluding a law enforcement officer, Fla. Stat. § 316.1935(2), is  Case: 12-14842 Date Filed: 02/11/2014 Page: 2 of 12 categorically a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)....

...§ 924(e). Smith objected to the classification of his prior conviction for “willfully flee[ing] or attempt[ing] to elude a law enforcement officer in an authorized [and marked] law enforcement patrol vehicle . . . with [its] siren and lights activated,” Fla. Stat. § 316.1935(2), as a violent felony....

...3  Case: 12-14842 Date Filed: 02/11/2014 Page: 4 of 12 Smith’s offense.” Id. at 775. We also rejected Smith’s argument that our decision in United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009) (concluding that section 316.1935(2) did not qualify as a violent felony), controlled the outcome of his appeal because we had since held that “Harrison [had] been undermined to the point of abrogation by Sykes” when Smith’s appeal was pending. Petite, 703 F.3d at 1299. In Petite we held that a “prior conviction for vehicle flight in violation of Fla. Stat. § 316.1935(2) qualifie[d] as a violent felony under the Armed Career Criminal Act.” Id. at 1301. We affirmed Smith’s sentence and held that “the district court did not err in treating Smith’s prior conviction [under section 316.1935(2)] as a predicate offense.” Smith, 518 F....

...the United States not supported by the record or the law of our Court, see United Sates v. Lee, 586 F.3d 859, 866 (11th Cir. 2009), and we conduct our own analysis affirming Smith’s enhanced sentence. We conclude that, based on the text of the Florida statute and other authorities, section 316.1935(2) prohibits vehicular flight, 6  Case: 12-14842 Date Filed: 02/11/2014 Page: 7 of 12 but, in any event, fleeing and eluding a law enforcement officer, whether on foot or in a vehicle, is categorically a violent felony. The whole text of the Florida statute supports our interpretation in Petite that section 316.1935(2) prohibits vehicular flight. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“The text must be construed as a whole.”). Section 316.1935(2) is the lesser-included-offense of aggravated vehicle flight defined in section 316.1935(3)....

...subsection (3) imposes a harsher penalty for any person who, while fleeing or attempting to elude the officer, “[d]rives at a high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property.” Fla. Stat. § 316.1935(3)....

...en v. Baltimore & Ohio R. Co., 331 U.S. 519, 528–29, 67 S. Ct. 1387, 1391–92 (1947))); see also Scalia & Garner, supra, at 221 (“The title and headings are permissible indicators of meaning.”). In addition, a punishment for a violation of section 316.1935(2) is revocation of the offender’s driver’s license, Fla. Stat. § 316.1935(5), and “[a]ny motor vehicle” involved in the offender’s flight “is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture.” Id. § 316.1935(7). These penalties are rationally related to the crime of vehicular flight, not pedestrian flight. The standard criminal jury instruction adopted by the Supreme Court of Florida for section 316.1935(2) provides, as follows, that the prosecution must prove that the offender fled or attempted to elude an officer while operating a motor vehicle: To prove the crime of Fleeing to Elude a Law Enforcement Officer, the St...

...2d 1012 (Fla. 4th Dist. Ct. App. 2001), because the “court’s concern was that Anderson risked being convicted of a third-degree felony fleeing and eluding offense solely upon proof of what occurred after he stopped [his vehicle]”). Because section 316.1935(2) prohibits only vehicular flight, we are bound by our decision in Petite that a prior conviction for fleeing and eluding a law enforcement officer is a violent felony....

...1586, 1593–94 (2007), we must conclude that fleeing and eluding an officer, whether on foot or in a vehicle, “as a categorical matter, . . . presents a serious potential risk of physical injury to another.” Sykes, 131 S. Ct. at 2273. In Petite, we concluded that section 316.1935(2) shared the same serious potential risks of physical injury as those risks identified by the Supreme Court in Sykes, which involved an Indiana statute prohibiting flight from law enforcement....

...ar flight. If the offender flees on foot, the officer is likely to pursue the offender in a vehicle because the statute states that the offender must flee “a law enforcement officer in an authorized law enforcement patrol vehicle.” Fla. Stat. 316.1935(2) (emphasis added); see also Petite, 703 F.3d at 1296 (“[W]e are obliged to look beyond the driving conduct of the offender alone.”)....

...ion leading to violence.” Id. at 2273. The district court correctly enhanced Smith’s sentence under the Armed Career Criminal Act. Under Sykes and Petite, a prior conviction for fleeing and eluding a law enforcement officer, Fla. Stat. § 316.1935(2), qualifies as a violent felony....

...Because this error has not been preserved, we affirm without prejudice to L.D.K’s right to file an appropriate motion for collateral relief. On January 3, 2008, L.D.K. was adjudicated delinquent of the third-degree felony of fleeing or attempting to elude, a violation of section 316.1935, Florida Statutes (2007), and the first-degree misdemeanor of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007)....

WHATLEY, Judge. We affirm Julius Ross’s convictions and sentences, but we remand for correction of the judgment to reflect that under count III, Ross was convicted of violating section 316.1935(2), Florida Statutes (1999), and it is a third-degree felony....

...ury was unable to exercise its pardon power. [1] James was convicted of fleeing or attempting to elude a law enforcement officer in a patrol vehicle with lights and siren activated at, high speed or with wanton disregard, a second-degree felony. See § 316.1935(3)(a), Fla....

officer with high speed or reckless driving. § 316.1935(3)(a), Fla. Stat. (2021). We affirm Issue I without

SHAHOOD, J. Appellant, C.U., a child, was charged with and pled no contest to fleeing or eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes, a third degree felony....

...Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee. SHAHOOD, J. Appellant, C.U., a child, was charged with and pled no contest to fleeing or eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes, a third degree felony....

..., no further connection was made between appellant and the apartment complex. As for the sentence, appellant insists he is entitled to be resentenced because the judge was under the mistaken belief that he was being sentenced for a *232 violation of section 316.1935(2), Florida Statutes (2009) (willfully fleeing and eluding a marked law enforcement vehicle with sirens flashing), rather than a violation of section 316.1935(1) (willfully fleeing and eluding a law enforcement officer after having knowledge of an order to stop)— the crime for which the jury found the defendant guilty. This issue was not preserved for appeal. But, even if it were, it is without merit. The judgment of conviction admittedly reflects a conviction for section 316.1935(2), rather than a conviction for section 316.1935(1). It is clear from the record, however, that the trial court was well aware the defendant had been found guilty of a violation of subsection (1) and was before the court to be sentenced for a violation of section 316.1935(1)....

...hird-degree felony and to correct the sentence/probation orders accordingly. § 775.082(3)(d), Fla. Stat. (2002). The State charged Appellant with fleeing or attempting to elude a law-enforcement officer (Count I), a second-degree felony pursuant to section 316.1935(3), Florida Statutes (2002); felony DUI (Count II), a third-degree felony pursuant to section 316.193, Florida Statutes (2002); and misdemeanor driving without a valid driver’s license (Count III), a violation of section 322.03(1), Florida Statutes (2002)....

...codified in section 775.021(4), Florida Statutes. We conclude that they are not prohibited and quash the decision of the Fifth District. Maisonet-Maldonado contests his dual convictions for fleeing or eluding a law enforcement officer causing serious injury or death under section 316.1935(3)(b), Florida Statutes (2010), and vehicular manslaughter under section 782.071(1)(a), Florida Statutes (2010). Section 316.1935(3)(b) makes it a first- degree felony to flee a law enforcement officer and drive in a wanton manner and cause serious bodily injury or death to another person: (3) Any person who willfully flees or attempts to elude a...

...sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years imprisonment. Nothing in this paragraph shall prevent a court from imposing a greater sentence of incarceration as authorized by law. § 316.1935(3)(b), Fla....

...willfully fled or attempted to elude a law enforcement officer in an authorized vehicle, (2) drove at a high speed or manner demonstrating a wanton disregard for persons or property, and (3) caused serious bodily injury or death to another person. § 316.1935(3)(b), Fla....

law enforcement officer in contravention of section 316.1935(3)(a), Florida Statutes (2009). Although the

conviction for aggravated fleeing and eluding under section 316.1935(2), Florida Statutes (1995), because appellant

...ment officer^ Nevertheless, since consecutive mandatory minimum sentences were not imposed, we think there is no Jackson error. AFFIRMED. HARRIS and SAWAYA, JJ., concur. . § 893.13(l)(f), Fla. Stat. . § 843.01, Fla. Stat. . § 843.02, Fla. Stat. . § 316.1935, Fla....

...mprisonment for not more than six months. See § 316.192(2), Fla. Stat. (1997). The second sentence at issue was for fleeing and eluding a police officer which is punishable by imprisonment in the county jail for a period not to exceed one year. See § 316.1935(1), Fla....

...Moreover, the court did not err in placing Staten on probation despite the fact he also was declared a habitual felony offender. See King v. State, 597 So.2d 309 (Fla.2d DCA March 4, 1992). Affirmed. CAMPBELL, A.C.J., and LEHAN and HALL, JJ., concur. . § 316.1935, Fla.Stat....

...He asserts that his appellate counsel failed to properly argue that the trial court erred in imposing a three year minimum mandatory sentence under the Law Enforcement Protection Act (“LEPA”), section 775.0823, Florida Statutes. However, because the trial court was required by section 316.1935(3)(b), Florida Statutes, to impose the minimum mandatory term complained of, petitioner suffered no prejudice as a consequence of counsel’s alleged deficiency....

...Nonetheless, because the portion of petitioner’s written judgment and sentence identifying LEPA as the basis for the minimum mandatory term is an obvious clerical error, we direct the trial court to correct the judgment and sentence to reflect that the minimum mandatory term was in fact imposed pursuant to section 316.1935(3)(b), Florida Statutes....

...Shanahan, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. Gary Leroy Lucas appeals his judgment and ten-year prison sentence for leaving the scene of an accident, fleeing and attempting to elude a police officer, and burglary of an unoccupied structure. See §§ 316.063(1), 316.1935(1), 810.02(1)(B)(4), Fla....

...willfully refused or failed to stop the vehicle in compliance with the order or 1 In re Standard Jury Instructions in Criminal Cases, 73 So. 3d 136, 137-38 (Fla. 2011) (Standard Jury Instruction 28.6, Fleeing to Elude a Law Enforcement Officer, § 316.1935(1), Fla....

...2d DCA 2010) (holding defendant was entitled to have jury instructed on disobeying a lawful order by law enforcement as a lesser included offense of fleeing and eluding). Mr. Lucas requested the instruction. The information tracked the language of section 316.1935(1) (fleeing to elude a law enforcement officer). Necessarily, therefore, the information alleged the elements of "willfully [failing] or refus[ing] to comply with any lawful order or direction of any law enforcement officer" under section 316.072(3)....

...The judgment lists count 7 as the crime of aggravated assault with a deadly weapon and refers to section 784.021(1)(A). This appears to be a scrivener’s error as count 7 in the indictment charges aggravated assault on a law enforcement officer under section 784.07(2)(c). . § 316.1935(3), Fla....

PER CURIAM. Jonathan Beree appeals his felony conviction for fleeing and eluding a law enforcement officer under section 316.1935(2), Florida Statutes (1997)....

...Because the evidence adduced at trial was insufficient to establish that Mr. Beree caused the pursuing officer to engage in a “high-speed vehicle pursuit,” we reverse and remand for the trial court to enter a conviction for misdemeanor fleeing and eluding under section 316.1935(1), Florida Statute (1997)....