Florida/Georgia Personal Injury & Workers Compensation

...Kramer, Assistant Attorneys General, Miami, FL, for Respondent. PARIENTE, J. The issue before us involves double jeopardy — specifically whether dual convictions for discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), arising from the same criminal episode, violate double jeopardy....

...criminal transaction only when the statute itself provides for an offense with multiple degrees." Paul, 934 So.2d at 1176 (Cantero, J., specially concurring). Second, by applying this simple test to this case we conclude that dual convictions under 790.15(2) and section 790.19 do not violate the prohibition against double jeopardy....

...our or five shots. Gianella was struck in the arm and foot. Valdes was charged with three counts of attempted second-degree murder with a firearm and one count each of discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003)....

...sh the `same primary evil.'" Valdes, 970 So.2d at 419 (citing Paul, 934 So.2d at 1175). The court acknowledged the decision of the Fifth District Court of Appeal in Lopez-Vazquez, in which the Fifth District concluded that convictions under sections 790.15(2) and 790.19, arising from the same criminal episode, violate double jeopardy....

...As Vazquez sat in his vehicle, he fired his weapon into the vehicle occupied by the victim, wounding the victim in the arm." 931 So.2d at 232. The Fifth District concluded that the offenses of discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2) and shooting into an occupied vehicle in violation of section 790.19 shared the same core offense of battery....

...is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). Gordon, 780 So.2d at 19-20 (footnote omitted). In this case there is no clear statement of legislative intent to authorize or to prohibit separate punishments for violations of sections 790.15(2) and 790.19....

...Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4), Fla. Stat. (2003). It is undisputed that sections 790.15(2) and 790.19 each contain an element that the other does not. Shooting from a vehicle in violation of section 790.15(2) requires proof of two elements: (1) the defendant knowingly and willfully discharged a firearm from a vehicle; and (2) the discharge occurred within 1000 feet of any person. § 790.15(2), Fla....

...The Proper Test for Double Jeopardy under Section 775.021(4)(b)(2) In Valdes and Lopez-Vazquez, the Third and Fifth Districts applied the "primary evil" test, as set forth in the Gordon, Florida, and Paul line of cases, to determine whether a defendant's dual convictions under sections 790.15(2) and 790.19, arising out of the same episode, violate double jeopardy....

...s. [9] Application of Subsection (4)(b)(2) to the Offenses in this Case Under the approach we adopt today, dual convictions for the two offenses at issue in this case, discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes, and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes, do not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense. This is in contrast to sections 790.15(1), 790.15(2), and 790.15(3), [10] which are explicitly degree *1078 variants of the same offense....

...be twice put in jeopardy for the same offense." Art. I, § 9, Fla. Const. Similarly, the Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. [5] Section 790.15 provides in pertinent part: 790.15 Discharging firearm in public....

...775.083. ... (2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 790.15, Fla....

...[9] We note that when we applied the "primary evil" test in Gordon, Florida, and Paul, we found that the second statutory exception was not met and therefore double jeopardy did not apply. The same result in those cases would be reached by an application of the plain language of the "degree" exception. [10] Section 790.15 provides in its entirety: (1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever kn...

...same offense as provided by statute" (subsection 4(b)(2)) and "lesser offenses the statutory elements of which are subsumed by the greater offense" (subsection 4(b)(3)). However, note that if a defendant received multiple convictions under sections 790.15(1),790.15(2), and 790.15(3), the offenses would satisfy the second statutory exception, but not the third....

...A change in paragraph 1b is proposed as follows: b. [carried a [weapon] [firearm], which was concealed from the ordinary sight of another person others who might casually observe him.] The reason for this change is the same as the one in paragraph 4 above. 7. Page 102 provides an instruction on Section 790.15, Florida Statutes....

...784.05(2) [*****] Culpable negligence — 784.05(1) [*****] Assault — 784.011 None Attempt Aggravated assault — Assault — 784.011 Attempt 784.021(1)(a) Improper exhibition of dangerous weapon or firearms — 790.10 Discharging firearms in public — 790.15 Aggravated assault — Assault — 784.011 Attempt 784.021(1)(b) Battery — 784.03 None Attempt Aggravated battery — Battery — 784.03 Attempt 784.045(1)(a) *1235 Aggravated battery Battery — 784.03 Attempt — 784.045(1)(b) Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15 Culpable negligence Culpable negligence None — 784.05(2) — 784.05(1) Assault of law None Attempt enforcement officer — 784.07(2) Assault — 784.011 [*******] Battery of law None Attempt enforcement officer — 784.07(2) Battery — 784.03 [**...

...ne Attempt (may be applicable criminal offense, when concealed firearm having weapons is charged) — 790.07(2) Carrying concealed firearm — 790.01(2) Improper exhibition of dangerous firearms — 790.10 Discharging firearms None Attempt in public — 790.15 Furnishing weapons to None Attempt minors under 18 years of age, etc....

...The district court added a * Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. career offender enhancement to Alexander’s sentence because it held that his prior felony conviction under Fla. Stat. § 790.15(2) for discharging a firearm from a vehicle within 1,000 feet of another person qualified as a crime of violence under the United States Sentencing Guidelines. Alexander contends that the enhancement was improper. Applying the framework announced by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), we conclude that a conviction under Fla. Stat. § 790.15(2) involves conduct that is “similar in kind and degree of risk posed” to burglary, arson, extortion, and crimes involving the use of explosives—the crimes enumerated in the Guidelines’ definition of crime of violence. U.S.S.G....

...arges. The United States Probation Office then produced a Presentence Investigation Report (“PSI”). Alexander had previously been convicted of discharging a firearm from a vehicle within 1,000 feet of another person in violation of Fla. Stat. § 790.15(2)....

...The PSI factored this conviction as a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a)(4)(A), which increased the recommended base offense level from fourteen to twenty. Alexander filed an objection to the PSI; he argued that the prior conviction under Fla. Stat. § 790.15(2) did not qualify as a crime of violence in light of Begay because it was not “purposeful, violent, and aggressive” behavior....

...3 disagreed. Reasoning that an enhancement is appropriate where a prior offense involved behavior that could “result in a serious potential risk of physical injury to another,” the court held that a conviction under Fla. Stat. § 790.15(2) qualifies as a crime of violence and that the PSI properly set Alexander’s base offense level at twenty....

...in state custody from the date of his arrest to the date he was transferred to federal custody. The court declined to do so. Alexander appeals. II. Issues on Appeal & Contentions of the Parties We first consider whether a conviction under Fla. Stat. § 790.15(2) for willfully discharging a firearm from a vehicle within 1,000 feet of another person qualifies as a crime of violence as defined by U.S.S.G....

...§ 4B1.2(a) and the Supreme Court’s opinion in Begay. Alexander argues that, applying the framework set forth in Begay, his prior conviction does not qualify as a crime of violence because a violation of Fla. 4 Stat. § 790.15(2) does not present a serious risk of injury to another and is not similar in kind as well as in degree of risk posed to the crimes listed as examples in § 4B1.2(a)(2)—burglary, arson, extortion, and crimes involving the use of explosi...

...at 1287-88. Accordingly, we distinguished this offense from merely fleeing from police, the crime at issue in Harrison, and concluded that it was “similar in kind and degree” to the enumerated crimes. Id. at 1288. We address whether a conviction under Fla. Stat. § 790.15(2) qualifies as a crime of violence under the Sentencing Guidelines with the benefit of the Supreme Court’s opinions in James, Begay, and Chambers, and our opinions in Harrison and Harris....

...e, reads “[a]ny 13 occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1000 feet of any person commits a felony of the second degree . . . .” Fla. Stat. § 790.15(2). The Florida Supreme Court has stated that “[s]hooting from a vehicle in violation of section 790.15(2) requires proof of two elements: (1) the defendant knowingly and willfully discharged a firearm from a vehicle; and (2) the discharge occurred within 1,000 feet of any person.” Valdes v....

...One Florida court, in addressing whether double jeopardy concerns were presented by dual convictions under this section and another Florida statute proscribing the shooting into a building or vehicle, explained that the “primary evil” targeted by section 790.15(2) “is the potential for someone in the public domain to be injured or killed without any malice or intent to inflict bodily harm.” Valdes v. State, 970 So. 2d 414, 420 (Fla. 3d DCA 2007). The court went so far as to add that “section 790.15 punishes firing a gun into the air with no evil intent and seeks to prevent even innocent revelers celebrating the new year from discharging a gun in public.” Id. at 421. 14  The bare elements of the offense, with the benefit of these statements by the Florida courts interpreting the crime in a different context, drive our assessment of how section 790.15(2) is violated “in the ordinary case.” However, we also compare the offense at issue with other provisions of section 790.15 to add context and to better understand the Florida courts’ interpretations of the provision....

...See Harrison, 558 F.3d at 1293 (noting the court’s categorization of fleeing offenses reflected the Florida legislature’s decision to differentiate between different types of fleeing behavior). Section one of the statute proscribes knowingly discharging a firearm in a public place. Fla. Stat. § 790.15(1)....

...The categorization of these offenses—class-one misdemeanor as opposed to class-two felony—as well as the variation in maximum penalties—one- year imprisonment as opposed to fifteen-years imprisonment—classifies this offense as substantially more serious than merely discharging a firearm in a public place. While section 790.15 may indeed “seek[] to prevent even innocent revelers celebrating the new year from discharging a gun in public,” we suspect that section 15 790.15(2) intends to target more egregious conduct....

...eas, which are often adjacent to inhabited buildings and populated by drivers of other vehicles, their passengers, and pedestrians. Adding to this the element that another individual must be within 1,000 feet further increases the likelihood that section 790.15(2) is violated under circumstances in which there is a strong chance that, intentionally or not, some other person will be struck by a bullet. Of course, as is the case with most crimes, we could contemplate a scenario in which section 790.15(2) could be violated without posing a serious risk of injury to another....

...We conclude that, as the crime is generally committed, it poses a serious potential risk of physical injury to another at least similar to the risk posed by the crimes enumerated in U.S.S.G. § 4B1.2(a)(2). We turn now to whether a violation of section 790.15(2) is “roughly similar in kind” to the enumerated offenses—burglary, arson, extortion, and crimes involving 17 the use of explosives....

...2009) (“[T]he residual clause encompasses only purposeful crimes; crimes with the mens rea of recklessness do not fall within its scope”); United States v. Herrick, 545 F.3d 53, 56-57 (1st Cir. 2008) (holding homicide by negligent operation of a vehicle not a crime of violence). Section 790.15(2) may be violated absent any intent to harm persons or property. So, if we were to read Begay to demand a specific intent to harm, we must conclude that a conviction under section 790.15(2) does not qualify as a crime of violence. But we have never equated “purposeful, violent, and aggressive” with a specific intent to harm....

...and “aggressive” because “a driver fleeing at such high speeds is indeed like holding a weapon out, ready to fire.” Id. Knowingly and willfully discharging a firearm from a vehicle is, without question, “purposeful” conduct. Unlike the DUI at issue in Begay, section 790.15(2) is not a strict liability provision....

...unlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate.” 553 U.S. at __, 128 S. Ct. at 1587. In contrast, the conduct for which a person is convicted under section 790.15(2) is the purposeful firing of a weapon from a vehicle....

...his purposeful act violates the 19 statute. It does not, however, transform this provision from a purposeful crime to a crime of strict liability. Not only is it purposeful, but a violation of section 790.15(2) also typically involves “violent” and “aggressive” conduct....

...discharges a firearm from a vehicle performs a deliberate act that poses an obvious 20 risk of injury or death to innocent third parties. This is, we believe, “violent” and “aggressive” conduct. We acknowledge that section 790.15(2) could technically be violated in a case where the shooter does not knowingly or recklessly put others at risk of injury or death—for example, the firing of a weapon into the air from a vehicle in a secluded area....

...lly). We are without the benefit of empirical data to verify that the commission of this offense typically involves violent and aggressive conduct. But, our conclusion that it does is supported by a review of the facts of Florida cases discussing section 790.15(2) and the inferences we draw from the way Florida law classifies this offense. The facts of every reported case discussing section 790.15(2) of which we are aware relate conduct that is, undeniably, violent and aggressive....

...2d DCA 21 1996) (discharging a firearm from a vehicle at a police officer); Hall v. State, 661 So. 2d 63, 63 (Fla. 2d DCA 1995) (guilty plea to attempted murder and discharging a firearm from a vehicle). And, as we explained above, Florida law classifies a violation of section 790.15(2) as a class-two felony, whereas it classifies discharging a firearm in public as a misdemeanor....

...This distinction suggests that this provision targets violent and aggressive conduct, not the mere careless use of a firearm. While we do not base our conclusions solely on the classification of this offense and the facts of Florida cases discussing it, we note that they support our inference that a violation of 790.15(2) typically involves violent, purposeful, and aggressive conduct, the kind which “makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Begay, 553 U.S....

...at 1586. In Harris, we equated “[f]leeing at high speed or with wanton disregard for safety” to “holding a finger on the trigger of a deadly weapon, without care for whom the bullet may strike,” 586 F.3d at 1289—precisely the conduct that is targeted by Fla. Stat. § 790.15(2)....

...involving the use of explosives, the crimes enumerated in U.S.S.G. § 4B1.2. 22  We hold that for purposes of U.S.S.G. § 2K2.1(a)(4)(A), a court should factor a prior conviction under Fla. Stat. § 790.15(2) as a crime of violence. B....

...dent] thought deficiencies should be carried forward." Id. 71 The regulations provide that good faith requires the employer to have honesty of intention and to be without knowledge of circumstances which ought to put him upon inquiry. 29 C.F.R. Sec. 790.15 (1984)....

...same offense as provided by statute" (subsection 4(b)(2)) and "lesser offenses the statutory elements of which are subsumed by the greater offense" (subsection 4(b)(3)). However, note that if a defendant received multiple convictions under sections 790.15(1), 790.15(2), and 790.15(3), the offenses would satisfy the second statutory exception, but not the third....

...c place (first-degree misdemeanor); (2) discharging a firearm within 1,000 feet of any person while an occupant in a vehicle (second-degree felony); and (3) knowingly directing another to discharge a firearm while in a vehicle (third-degree felony). § 790.15, Fla....

circumstances. Olson, 765 F.2d at 1580; 29 C.F.R. § 790.15(a). The *931regulations at issue in this case

...in violation of sections 775.0825, 777.04, 782.04 and 784.07, Florida Statutes (1993), Count II, carrying a concealed weapon in violation of section 790.01, Florida Statutes (1993), and Count III, discharging a firearm from a vehicle in violation of section 790.15, Florida Statutes (1993)....

...Under Valdes, this argument can only be valid if the statutes themselves provide such a classification. After a review of the conflict issue, we find our decision in Valdes controlling. In Valdes, we considered whether dual convictions for discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), arising from the same criminal episode, violated double jeopardy....

...[3] Ultimately, we concluded that "the only offenses that fall under subsection (4)(b)2., are those that constitute different degrees of the same offense, as explicitly set forth in the relevant statutory sections." Id. at 1077. As this holding was applied to Valdes' convictions under sections 790.19 and 790.15, we found that the violations did "not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense." Valdes, 3 So.3d at 1077. In contrast, we noted that sections 790.15(1), 790.15(2), and 790.15(3) were explicitly degree variants of the same offense....

...We explained that other statutory designations can evince a degree relationship, such as when a crime has aggravated forms of the basic offense. Id. Based upon this standard, the Court in Valdes held that dual convictions for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle, in violation of section 790.19, Florida Statutes (2003), did not violate double jeopardy....

...Mr. Light admitted that he tried to fire all six rounds in his revolver, but did not know how many shots he fired. The officers recognized that they had probable cause to arrest Mr. Light for the misdemeanor of public discharge of a firearm. See §§ 790.15, 901.15(1), Fla....

...Light conceded his guilt on the remaining charge of discharging a firearm in public, he is not entitled to relief from that conviction. Reversed and remanded. SALCINES and STRINGER, JJ., Concur. NOTES [1] See §§ 784.021(1)(a), .07(2)(c), Fla. Stat. (1993). [2] See § 843.01, Fla. Stat. (1993). [3] See § 790.15, Fla....

...quires proof of three elements: 1) Vazquez shot a firearm; 2) he did so at, within, or into a vehicle of any kind that was being used or occupied by any person; and 3) the act was done wantonly or maliciously. Shooting from a vehicle in violation of section 790.15(2), Florida Statutes (2005), requires proof of two elements: 1) Vazquez knowingly and willfully discharged a firearm from a vehicle; and 2) at the time he discharged the firearm, Vazquez was within 1000 feet of any person....

...d, 2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. Fla. Std. Jury Instr. (Crim.) § 6.4., at 1744 (emphasis added). We believe that the primary evil addressed by sections 790.19 and 790.15, which proscribe shooting into an occupied vehicle and shooting from a vehicle, is the endangerment of the safety of those who may be struck by the discharge from the firearm....

...rovisions of this section are supplemental to all other provisions of law relating to the possession, use, or exhibition *236 of a firearm." M.P., 682 So.2d at 82 (alteration in original) (quoting § 790.22(7), Fla. Stat. (Supp.1994)). Since neither section 790.15 nor section 790.19 contains any similar language indicating that the provisions are supplemental to the other provisions of law, we do not find any inconsistency between our decision, which holds that convictions under two statutes in...

...The defendant, Eli Enrique Valdes, appeals the judgment of conviction and sentence imposed after a jury finding of guilt for three counts of attempted second degree murder with a firearm; one count of discharging a firearm from a vehicle in violation of section 790.15(2), Florida Statutes (2003); and one count of shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003)....

...State, 916 So.2d 44, 46 (Fla. 3d DCA 2005); Barfield v. State, 871 So.2d 929, 930-31 (Fla. 5th DCA 2004). We, therefore, address the merits of the defendant's claim. The defendant claims that his convictions for shooting from a vehicle in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), violate double jeopardy, as the offenses arose out of the same criminal episode. We disagree. Section 790.15, Florida Statutes (2003), provides, in pertinent part, as follows: 790.15 Discharging firearm in public....

...misdemeanor of the first degree. . . . (2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree. . . . The defendant was convicted under section 790.15(2) of this statute....

...subsection (4)(b) apply. If any of the exceptions apply, double jeopardy bars convictions for both offenses. Florida, 894 So.2d at 945. It is clear, and defense counsel concedes, that under the Blockburger test, as codified in section 775.021(4)(a), section 790.15(2), discharging a firearm from a vehicle within 1,000 feet of any person, and section 790.19, shooting or throwing a deadly missile at, within, or into any building, vehicle, aircraft or vessel, each contain an element distinct from the other. Section 790.15(2) requires the willful discharge of a firearm from a vehicle within 1,000 feet of a person....

...Therefore, separate convictions are authorized unless these offenses fall within one of the exceptions in subsection (4)(b). Subsection (4)(b)(1), which concerns offenses that "require identical elements of proof," does not apply here. As previously discussed, pursuant to section 790.15(2), the State was required to prove that Valdes *419 fired the weapon from a vehicle within 1,000 feet of another person....

...offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity . . . to determine legislative intent.' § 775.021(4)(b), Fla. Stat. (1997).") (omission in original). A thorough examination of sections 790.15 and 790.19 reveals completely different core offenses intending to punish different evils. The core offense of section 790.15 is the discharge of a firearm in public....

...the public domain to be injured or killed without any malice or intent to inflict bodily harm. In contrast, the core offense of section 790.19 is the shooting or throwing of any *421 deadly missile into or at a building or vehicle with malice. Where section 790.15 punishes firing a gun into the air with no evil intent and seeks to prevent even innocent revelers celebrating the new year from discharging a gun in public, section 790.19 punishes those who fire or hurl deadly objects at or into buil...

...but malicious acts which destroy our sense of safety within structures and vehicles. Thus, throwing a rock from an overpass at a passing vehicle carries the same penalty as shooting a firearm into a house, building, or vehicle under section 790.19. Section 790.15 elevates the crime of discharging a firearm in public from a first degree misdemeanor to a second degree felony if, when the offender discharges the firearm, he does so from a vehicle within 1,000 feet of another person....

...Thus, the Florida Supreme Court concluded that "the separate evils of intending to kill, seriously injuring someone, and injuring someone during the commission of a felony are sufficiently distinct that they warrant separate punishment." Id. No double jeopardy exists in the instant case because section 790.15 punishes the discharge of a firearm in public, whereas section 790.19 punishes the intent to injure or to cause fear. Moreover, section 790.15 protects people outside in public places, whereas section 790.19 protects people in their homes, vehicles, or other structures....

...Butterworth, Atty. Gen., and Richard L. Kaplan, Asst. Atty. Gen., for appellee. Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ. FERGUSON, Judge. Under the rationale of Carawan v. State, 515 So.2d 161 (Fla. 1987), discharging a firearm in public, section 790.15, Florida Statutes (1987), is the same offense as shooting a deadly missile into an occupied vehicle, section 790.19, Florida Statutes (1987)....

...Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. We affirm on the authority of Ray v. State, 403 So.2d 956 (Fla. 1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Discharge of a firearm in public, section 790.15, Florida Statutes (1981), is not a necessarily lesser included offense of aggravated battery, section 784.045(1)(b), Florida Statutes (1981)....

...COWART, Judge, dissenting: Appellant, a child charged with delinquency in a petition alleging that the delinquent act was the commission of an aggravated battery in violation of section 784.045(1)(b), Florida Statutes, (1981), was found delinquent by virtue of discharging a firearm in public in violation of section 790.15, Florida Statutes, (1981), as a lesser included offense of the offense charged. *249 An offense under section 790.15, Florida Statutes, (1981), is not a lesser included offense of the charged offense of aggravated battery (section 784.045(1)(b), Florida Statutes, (1981)). First, the statutory offense of discharging a firearm in public (§ 790.15, Fla. Stat. (1981)) is not a true or necessary lesser included offense of statutory aggravated battery (§ 784.045(1)(b), Fla. Stat. (1981)) because the 790.15 offense has many elements not necessarily included in the elements of the 784.045(1)(b) offense. Section 790.15 requires the existence and presence of a firearm while section 784.045(1)(b) requires a deadly weapon. A firearm (as defined in section 790.001(6), Fla. Stat. (1981)), may, or may not, be a deadly weapon but not every deadly weapon is a firearm. Section 790.15 requires the firearm to be discharged; 784.045(1)(b) requires only that the deadly weapon be "used". A deadly weapon, even a firearm, may be "used" without being discharged. Section 790.15 requires the firearm be discharged in a public place or on or over certain rights-of-way or occupied premises while section 784.045(1)(b) contains no element relating to a necessary particular place of the offense. Section 790.15 requires the prohibited act to be done with certain knowledge relating, presumably, to the firearm and to the character of the place where the firearm is discharged, while section 784.045(1)(b) requires no such particular knowledge as to the character of the place of the offense. Secondly, the violation of section 790.15, Florida Statutes (1981), was not a permissive lesser included offense in this case (as a category four lesser included offense under Brown v. State, 206 So.2d 377 (Fla. 1968)) because the charging document wholly failed to allege the above elements of the 790.15 offense prohibited by section 790.15, Florida Statutes, (1981)....

...See Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003); Justice v. State, 674 So. 2d 123, 126 (Fla. 1996). Further, the judgment incorrectly reflects that Mr. Rodriguez was convicted on count 3 for discharging a firearm from a vehicle under section 790.15(2), Florida Statutes (2013)....

...Parks was arrested on February 24, 1998, for aggravated assault and discharging a firearm within the city limits. He was released on bond the same day. In April 1998, the State charged Parks for the incident, filing an information for discharging a firearm within 1000 feet of a person, a second-degree felony. See § 790.15(2), Fla....

...Assault 784-.Q1-1" Improper exhibition of a dangerous weapon or firearm, if Fla. Stat. 784.021 (lYa) is charged 790.10 10.5 Assault 784.011 8.1 Attempt 777.04(1) 5.1 Improper Exhibition of dangerous weapons or ■firearms 796A0 m-5 Discharging firearms in public 790.15 10.6 Comment This instruction was approved in 1981 and amended in 2013....

...2Xd) 8.17 Improper exhibition of a dangerous weapon or firearm, if Fla. Stat. 784.02im(a] is charged 790.10 10.5 Assault 784.011 8.1 Attempt 777.04(1) 5.1 improper-exhibition of dangerous weapons or firearms 7-9040 444 Discharging firearms in public 790.15 10.6 Comment This instruction was adopted in 1997 [ 697 So.2d 84 ] and amended in 2013....

...State, 512 So.2d 1109 (Fla. 1st DCA 1987). “Willfully” means knowingly, inten- tionally and purposely. Lesser Included Offenses [[Image here]] Comment This instruction was adopted in 2013. 10.6 DISCHARGING A FIREARM [IN PUBLIC] [ON RESIDENTIAL PROPERTY] § 790.15, Fla....

...y, or similar device; (c) Any shotgun other than a short-barreled shotgun; or (d) Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.] Affirmative Defense. See § 790.15(1), Fla....

...or hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him][her] not guilty. See — applieable—defenses—specified—m §-7-90S¡5, Fla,Stai.- Lesser Included Offenses ION RESIDENTIAL PROPERTY! — 790.15 ; : CATEGORY ONE CATEGORY TWO FLA....

...The judgment and sentence for unlawful firearm discharge is affirmed. The convictions for corruption by threat and felony firearm possession are reversed. AFFIRMED in part; REVERSED in part. ORFINGER and COWART, JJ., concur. NOTES [1] § 838.021, Fla. Stat. (1983). [2] § 790.07, Fla. Stat. (1983). [3] § 790.15, Fla....

...g when circumstances reasonably justify the use of such restraint"). The order granting the motion to suppress is reversed. We remand for further proceedings. REVERSED AND REMANDED. COBB, J., concurs. GRIFFIN, J., dissents without opinion. NOTES [1] Section 790.15(1), Florida Statutes (1993) provides: any person who knowingly discharges a firearm in any public place or on the right of way of any paved public road, highway or street, or whosoever knowingly discharges any firearm over the right of...

...d by statute. " § 775.021(4)(b)(2), Fla. Stat. (2007) (emphasis supplied). Here, we are dealing with two separate offenses contained within two separate statutes. The fact that they are both part of the same chapter is of no consequence in my view. Section 790.15(2) punishes the discharge of a firearm from a vehicle within 1000 feet of any person. Section 790.19 relates to shooting or throwing a deadly missile into a building or conveyance. Neither is a statutory degree variant of the other. They are entirely different crimes. NOTES [1] § 790.15(2), Fla....

...Thus, in accord with our discussion in footnote two, supra, we strike Count 4, unlawfully discharging a firearm in public, from the judgment of conviction. We affirm the judgment, as modified, and the sentences entered thereon. NOTES [1] §§ 784.021, 784.07, Fla. Stat. (1995). [2] § 790.15, Fla....

...Statutes (2017). New standard criminal jury instruction 10.6(b) (Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle) is added because there is no existing instruction for the offense defined in section 790.15(3), Florida Statutes (2017)....

...2013 [131 So. 3d 720], and 2016 [195 So. 3d 356], and 2018. 10.6(b) DRIVER OR OWNER OF A VEHICLE KNOWINGLY DIRECTING ANOTHER TO DISCHARGE A FIREARM FROM THE VEHICLE § 790.15(3), Fla....

...ally and not because of mistake or accident or other innocent reason. Lesser Included Offense DRIVER OR OWNER OF A VEHICLE KNOWINGLY DIRECTING ANOTHER TO DISCHARGE A FIREARM FROM THE VEHICLE— 790.15(3) CATEGORY ONE CATEGORY TWO FLA....

...we remand this cause with instructions that the trial court strike the award. The trial court may re-impose such costs upon appropriate motion and proof. CONVICTIONS AFFIRMED; AWARD OF COSTS REMANDED. TORPY, LAWSON and COHEN, JJ., concur. NOTES [1] § 790.15(2), Fla....

...mpted second-degree murder of a law enforcement officer [§§ 782.04(2), 784.07(3), 775.0825, Fla. Stat. (1993)]; one count of carrying a concealed weapon [§ 790.01(2), Fla.Stat. (1993)]; and one count of unlawfully discharging a firearm in public [§ 790.15(1), Fla.Stat....

...See § 777.04(4)(d), Fla.Stat. (1995). The other issues raised by the defendant being without merit, we affirm. AFFIRMED. PETERSON, C.J., and THOMPSON, J., concur. NOTES [1] §§ 784.07(2)C, 784.021(1)(a), and 775.0823(1), Fla.Stat. (1995). [2] § 790.07, Fla.Stat. (1995). [3] § 790.15, Fla.Stat....

...Bill McCollum, Attorney General, Joshua R. Heller and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appellee. PER CURIAM. This is an appeal of a judgment and sentence for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2005)....

PER CURIAM. This is an appeal by the defendant Randall G. Antosh from a conviction for the misdemeanor of discharging a firearm in public [§ 790.15, Fla.Stat.(1985) ] and an order placing the defendant on one-year probation....

...23 degree murder is codified in section 782.04, Florida Statutes. Compare with Valdes v. State, 3 So. 3d 1067, 1077-78 (Fla. 2009) (finding dual convictions of discharging a firearm from a vehicle in violation of section 790.15(2) and shooting into an occupied vehicle in violation of section 790.19 did not satisfy the second exception because the two offenses are found in separate statutory provisions, and observing: “This is in contrast to sections 790.15(1), 790.15(2), and 790.15(3), which are explicitly degree variants of the same offense.”) (footnotes omitted); Velazco v....

...Cito argues, and the State concedes, that the court imposed an illegal sentence on count V. We agree and reverse. We affirm the remaining issues raised on appeal without comment. Cito was convicted of discharging a firearm from a vehicle within 1000 feet of a person, a second-degree felony. See § 790.15(2), Fla....

constitute a public place within the meaning of section 790.15(1), Florida Statutes (1995). See Fla. Std.

new trial. . § 790.19, Fla.Stat. (1993). . § 790.15, Fla.Stat. (1993). . Section 776.012, Florida

discharging a firearm in public in violation of section 790.15, Florida Statutes, (1981), as a lesser included

...Ramroop was apprehended at the scene of the crash and subsequently charged by information with (1) attempted first-degree murder of an officer 2. Ramroop does not challenge and we do not address his conviction for Knowingly Discharging a Firearm from a Vehicle Within 1000 Feet of a Person. § 790.15(2), Fla....

offenses actually included one misdemeanor (section 790.15), one second-degree felony (section 790.23)

...and for further proceedings. On June 29, 2002, petitioner was arrested on charges of (1) improper exhibition of a firearm or dangerous weapon, pursuant to section 790.10, Florida Statutes (2002), and (2) discharge of a firearm in public, pursuant to section 790.15(1), Florida Statutes (2002)....

...lity in the commission of a felony and the sheriff’s evidence is entirely insufficient for that purpose. There is no evidence that James knowingly, meaning intentionally, discharged his firearm, which, even if true, constitutes a misdemeanor under section 790.15, Florida Statutes (1981), and, not being a felony, is insufficient for forfeiture under section 932.701(2)(e), Florida Statutes (1981)....

...vide uniform firearms laws in the state. Any ordinance or regulation attempting to regulate firearms is stated to be null and void when enacted by jurisdictions other than the state or the federal government. 2 Relative to the discharge of firearms, section 790.15 (1), Florida Statutes, states: "Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever...

...8, with minor modifications as discussed below. Instructions 12.4 and 21.8 are hereby authorized as proposed. However, we decline to authorize the proposed amendment to instruction 3.6(a). New standard criminal jury instruction 10.6(a), derived from section 790.15(2), Florida Statutes (2009), instructs on the offense of Discharging a Firearm from a Vehicle Within 1000 Feet of a Person....

...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, and PERRY, JJ., concur. *567 APPENDIX 10.6(a) DISCHARGING A FIREARM FROM A VEHICLE WITHIN 1,000 FEET OF A PERSON § 790.15(2), Fla....

...In October 2021, the State of Florida charged Presha with one count of felon in possession of a firearm in violation of Florida Statute section 790.23(1), and one count of unlawful discharge of a firearm in public in violation of Florida Statute section 790.15(1), arising from events that took place on August 12, 2021.1 At Presha’s trial, before the jury was brought into the courtroom, the following discussion took place between the trial court, prosecutors, defense attorneys, and Presh...

...The court instructed the jury on attempted first degree murder with a firearm, attempted second degree murder with a firearm, attempted manslaughter with a firearm, and aggravated battery with a firearm, but refused Ammons’ requested instruction on discharging a firearm in public, contrary to section 790.15, Florida Statutes....

...uested instruction was based on section 790.10, Florida Statutes, "Improper exhibition of dangerous weapons or firearms," it is abundantly clear from the record that defense counsel, however inartfully, was in fact requesting an instruction based on section 790.15....

...Florida, for Petitioner -5-  Appendix 10.6 DISCHARGING A FIREARM [IN PUBLIC] [ON RESIDENTIAL PROPERTY] § 790.15, Fla....

... (c) Any shotgun other than a short-barreled shotgun; or (d) Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.] Affirmative Defense. See § 790.15(1), Fla....

...approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him] [her] not guilty. Lesser Included Offenses DISCHARGING A FIREARM [IN PUBLIC] [ON RESIDENTIAL PROPERTY] — 790.15 CATEGORY ONE CATEGORY TWO FLA....