Florida/Georgia Personal Injury & Workers Compensation

...a, for Petitioner. Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, Florida, for Respondent. LEWIS, J. We have for review a challenge to the constitutionality of section 825.102(3), Florida Statutes (1997), which, in pertinent part, penalizes "[a] caregiver's [culpably negligent] failure or omission to provide [a] ......

...Mrs. Sieniarecki's body. The infection not only involved her bladder and vagina, but had spread into her fat and abdominal cavity as well. PROCEEDINGS BELOW After a jury trial, petitioner was found guilty of neglect of a disabled adult, pursuant to section 825.102(3), Florida Statutes (1997)....

...he appellant's conduct is unlawful, the statute is not unconstitutionally vague on its face because it is not vague in all of its applications), review denied, 719 So.2d 894 (Fla.1998). MRS. SIENIARECKI'S PRIVACY RIGHT Appellant's last claim is that section 825.102(3) violates her mother's right to privacy....

...For the foregoing reasons, the decision below is approved. It is so ordered. HARDING, C.J., and SHAW, WELLS, PARIENTE and QUINCE, JJ., concur. ANSTEAD, J., concurs in result only. NOTES [1] Here, petitioner does not challenge section 782.07(2), but applies this same argument to section 825.102(3). [2] Petitioner asserts that section 825.102(3) creates an affirmative duty "to provide care, supervision, or services to another person" not recognized at common law....

..."Caregiver" includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. Caregiver means a parent, adult household member, or other person responsible for a child's welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

..."Caregiver" includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. "Caregiver" means a parent, adult household member, or other person responsible for a child s welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

...The legislature has passed a manslaughter statute directed at the type of conduct involved in this case. Section 782.07(2), Florida Statutes (1997) provides: A person who causes the death of any elderly person or disabled adult by culpable negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree. Section 825.102 criminalizes abuse, aggravated abuse, and neglect of an elderly person or disabled adult. Section 825.102(3)(b) is directed at a person "who willfully or by culpable negligence neglects an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement." Section 825.102(3)(a) defines "[n]eglect of an elderly person or disabled adult" as 1....

...on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or psychological injury, or a substantial risk of death, to an elderly person or disabled adult. Reading section 782.07(2) together with section 825.102(3) leads to the conclusion that one version of manslaughter is committed by a person who, by culpable negligence, causes the death of an elderly person through "neglect of an elderly person or disabled adult" as defined by section 825.102(3)(a)....

..."Caregiver" includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. "Caregiver" means a parent, adult household member, or other person responsible for a child's welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

...of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“U”) order finding him ineligible for relief from removal based on his criminal conviction for abuse of an elderly person or disabled adult under Florida Statute § 825.102(1)....

...Accordingly, we dismiss the petition. I. BACKGROUND In March 1992, Gelin entered the United States illegally. In 2002, Gelin pled guilty in Florida state court to one count of abuse of an elderly person or disabled adult, in violation of Florida Statute § 825.102(1)....

...§ 1227 (a)(2)(A)®. A. The IJ’s Decision On January 22, 2014, the IJ ordered that Gelin be removed from the United States, finding that (a) Gelin was convicted of abuse of an elderly person or disabled adult, in violation of Florida Statute §. 825.102(1); and (b) this conviction was categorically a CIMT because the conviction records established that Gelin “knowingly, willfully and intentionally inflicted injury upon an elderly person or disabled adult, or that he intentionally committed an act or actively encouraged another person to commit such an act.” B....

...§ 1182 (a)(6)(A)®, and thus the only issue on appeal is whether the respondent [Ge-lin] qualifies for relief from removal.” The BIA then determined that Gelin did not qualify for relief from removal because his conviction under Florida Statute § 825.102(1) categorically qualified as a CIMT....

...The BIA then concluded that “[u]nder this statute, the State must prove the defendant knowingly or willfully committed one *1239 of the three alternatives and that at the time the victim was an elderly person or disabled adult.” The BIA quoted the three alternative definitions of “abuse” in § 825.102(1) as follows: (1) intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (2) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly pe...

...State, 95 So.3d 977, 979-80, 982 (Fla. 2nd DCA 2012). 1 The BIA concluded (1) “the victim’s status is a required element of the offense” and (2) there was “no realistic probability that Florida could successfully prosecute an individual under Section 825.102 where the evidence established that the accused was subjectively ignorant of the victim’s vulnerable condition.”,. The BIA concluded that, “[a]s we have determined that section 825.102(1) is a categorical CIMT, we do not address the respondent’s [Gelin’s] statements regarding a modified categorical analysis.” Finally, the BIA found that, ‘ even if a § 825.102(1) conviction was not categorically a CIMT, Gelin had “the burden as an applicant for relief from removal to prove that he 'has not been convicted of an offense under section 212(a)(2) [or] 237(a)(2)’ of the Act, 8 U.S.C....

...The BIA explained why “these cases are distinguishable.” As for Sañudo, the BIA stated that the California battery statute in that case *1240 included “minimal nonviolent touching” and no intent to harm. The BIA stated that,- in contrast, Florida Statute § 825.102(1) requires a more culpable mental state and “the commission of an intentional act, directed against an especially vulnerable victim, with an intent to injure or conscious disregard of the likelihood of injury.” As for Matter of Danesh...

...s may consider “the charging document, plea, verdict, and sentence”). Here, the BIA applied only the categorical approach. On appeal, the parties have briefed the categorical approach. 3 But the *1242 parties’ briefs have also assumed that the § 825.102(1) statute is divisible and that we can look at the record to see which of the three types of abuse in § 825.102(1) Gelin was convicted of....

...Further, if the record documents are inconclusive, the parties dispute who has the burden of proof to establish eligibility for relief from removal. Because we conclude that Gelin’s conviction categorically qualifies as a CIMT under the least culpable subpart of Florida Statute § 825.102(1), we need not reach any of the subsidiary issues in this case. We hold only that Gelin’s felony conviction under § 825.102(1) categorically qualifies as a CIMT and explain why. IV. FLA. STAT. § 825.102(1) As did the BIA, we begin and end with the Florida statute and Florida case law. Florida Statute § 825.102(1), currently and at the time of Gelin’s conviction, provides, in relevant part, that: A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree[.] Fla. Stat. § 825.102 (1). The elements of § 825.102(1) are: (1) knowing or willful; (2) abuse of an elderly person or disabled adult; (3) without causing great bodily harm, permanent disability, or permanent disfigurement. Section 825.102(1) defines the second element, “abuse,” in three alternative ways: (a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) An intentional act that could reasonably be expected t...

...l injury to an elderly person or disabled adult; or (c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult. Fla. Stat. § 825.102 (1)....

...onably be expected to result in injury; or (c) active encouragement of another person to commit an act that results or could reasonably be expected to result in injury. 4 In Gelin’s criminal case, the 2002 judgment listed the offense statute as “825.102(1)” and did not specify a subsection of conviction. The charging information largely tracked the language of the statute and charged all three subsections and crimes as follows: *1243 [Gelin] ... did knowingly or willfully, in violation of Florida Statute 825.102(1), intentionally inflict physical or psychological injury upon Daniel Rodriguez, an elderly person or disabled adult, or intentionally commit an act or actively encourage another person to commit an act which could reasonably be expected to result in physical or psychological injury to [Daniel Rodriguez]....

...ments, or (2) indivisible, creating multiple means to commit one crime. See Mathis v. United States, 579 U.S. —, —, 136 S.Ct. 2248, 2248-49 , 195 L.Ed.2d 604 (2016). We need not decide that divisibility question because the least culpable act— § 825.102(l)(c) — categorically constitutes a CIMT in any event. Y. FLA. STAT. § 825.102(1) IS A CIMT Whether “abuse of an elderly person or disabled adult” is a crime involving moral turpitude is a question of first impression in this Circuit, but one that we readily answer in the affirmative....

...olved in the crime[.]” See Cano, 709 F.3d at 1053 ; Garcia, 329 F.3d at 1222 (citing Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (9th Cir. 1969)). Even the least culpable conduct necessary to sustain an abuse conviction under Florida Statute § 825.102(1) constitutes a CIMT. To be convicted of the least culpable conduct contained in § 825.102(1), the State must prove these elements: (1) the knowing or willful; (2) active encouragement of another person to commit an act (3) that results, or could reasonably be expected to result, in physical or psychological injury to an elderly person or disabled adult; (4) without causing great bodily harm, permanent disability, or permanent disfigurement. Fla. Stat. § 825.102 (l)(c). In analyzing whether this § 825.102(l)(c) offense constitutes a CIMT, we may rely on court decisions in the convicting jurisdiction that interpret the meaning of the statutory language....

...at —, 136 S.Ct. at 2256 (explaining that, in determining whether a statute’s listed items are elements or means, federal courts may look to state court decisions interpreting an alternatively phrased statute for guidance). A violation of Florida Statute § 825.102(l)(c) qualifies as a CIMT because of (1) the culpable state of mind required by the statute, and (2) the particularly vulnerable nature of the victims. See Keungne, 561 F.3d at 1284 n.3; Fla. Stat. § 825.102 (l)(c)....

...Culpable State of Mind In our prior CIMT case law, this Court has looked to the level of intent involved in an offense to determine whether an act Was sufficiently base, vile, or depraved. See Cano, 709 F.3d at 1054 . Here, the standard jury instructions for Florida Statute § 825.102(1) instruct that, to obtain a guilty verdict, the State must prove a defendant’s “knowing or willful” commission *1244 of subsection (a), (b), or (c)....

...03(2)(b) and (d). Griffis, 848 So.2d at 427-28. Similarly, the Florida statute at issue here also contains a separate prohibition of the neglect of an elderly person or disabled adult, which can be shown through “culpable negligence.” Fla. Stat. § 825.102 (3). In contrast, § 825.102(l)(c) requires the knowing or willful active encouragement of another person to commit an unlawful act, which requires a sufficiently culpable state of mind to constitute a CIMT....

...negligence standard, as Gelin argues; it is, in fact, even more culpable than the recklessness standard at. issue in Keungne. “Active encouragement” of an unlawful act is itself an intentional act, and.not recklessness or gross negligence. Plus, § 825.102(1) requires that the intentional act be knowingly or willfully committed....

...A defendant’s intentionally encouraging that type of act necessarily requires that the defendant intended injury or a real likelihood of injury. Indeed, analogous Florida case law instructs us that all of the acts contemplated in Florida Statute § 825.102(1) require an intentional act and may not be-satisfied merely by a showing of “culpable negligence.” See Griffis, 848 So.2d at 427-28. For these reasons, we are convinced that Florida Statute § 825.102(l)(c) requires a sufficiently culpable mental state to constitute a CIMT....

...structure,” was a CIMT). B. Vulnerable Victims The fact that the Florida statute requires an intentional act targeted at vulnerable victims further demonstrates that a violation, of the statute is morally turpitu-dinous. There is . no crime under § 825.102(l)(c) if the person is not an elderly person or a disabled adult and thus a vulnerable victim. Notably too, under the statutory definitions of those victims and Florida case law, the person’s vulnerable status must be proven and manifestly clear to the defendant. To secure a conviction under § 825.102(1), the prosecutor must prove that the victim outwardly manifests that he is suffering from the infirmities of age to the extent that his ability to care for himself is impaired. See Fla. Stat. § 825.101 (4); Watson, 95 So.3d at 979-82 (reversing and remanding a § 825.102(1) conviction where the state failed to....

...ce, perpetrators must have subjective knowledge of their victims’ vulnerable status. We need not decide this case based on solely the culpable state of mind or solely the requirement- of a vulnerable victim. *1247 Both eléments are required for a § 825.102(l)(c) conviction. Thus, considering the totality of the circumstances, we are convinced that abuse of- an elderly person or disabled adult, in violation of Florida Statute § 825.102(1), is a CIMT and inherently involves an “act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and dut...

...—, —, 135 S.Ct. 2551, 2557-58, 2563 , 192 L.Ed.2d 569 (2015) (holding that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague), should be extended to find that the reasonable-expectation-of-injury requirement in § 825.102(l)(b) and (c) is unconstitutionally vague as applied to a CIMT analysis. Gelin argues , that the required harm in Florida State § 825.102(1) is speculative and insufficiently defined and is therefore constitutionally infirm. Regardless of whether Gelin’s Johnson-based claim was properly exhausted, 8 we cannot reach it. Gelin argues that Florida Statute § 825.102(1) is unconstitutionally void for vagueness....

...Compare Johnson, 576 U.S. at —, 135 S.Ct. at 2555-56 (involving a residual clause that defines a violent felony as any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”), with Fla. Stat. § 825.102 (prohibiting an intentional act or active encouragement of another to commit an act “that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult”)....

...cretionary relief.” Oguejiofor v. Att’y Gen, of the U.S., 277 F.3d 1305, 1309 (11th Cir. 2002) (citation omitted). VII. CONCLUSION Therefore, because a conviction for abuse of an elderly person or disabled *1248 adult pursuant to Florida Statute § 825.102(1) is categorically a crime involving- moral turpitude, we are deprived of jurisdiction to review Gelin’s petition for review under 8 U.S.C....

...ary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

...mitted in an unsophisticated manner, or that it was an "isolated incident" for which he showed remorse. The Charges and Course of Proceedings The defendants were charged with aggravated abuse and neglect of Ms. Torres' uncle, [3] Louis Makrez, under section 825.102(2), Florida Statutes (2007)....

...Sanders, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Judge. Michael Jennings was convicted of lewd and lascivious molestation of a disabled person in violation of section 825.1025(3)(a), Florida Statutes (2001)....

...We have found no case addressing this issue as it relates to the "disabled adult" element of a chapter 825 crime. However, an analogous issue arose in Sieniarecki v. State, 756 So.2d 68 (Fla.2000). Sieniarecki was convicted of neglect of a disabled person. § 825.102(3)....

...center, group home, mental health treatment center, or continuing care community. As applied to a Child. § 827.01(1), Fla. Stat. “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare. § 825.102(3)(a) or § 827.03(3)(e), Fla....

... Lesser Included Offenses AGGRAVATED MANSLAUGHTER — 782.07(2), 782.07(3), AND 782.07(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Manslaughter 782.07 7.7 *Neglect by Culpable 825.102(3)(b) 29.22 Negligence of a[n] or or [Elderly Person] 827.03(2)(b) 16.5 [Disabled Adult] [Child] Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement *Neglect by Culpable 825.102(3)(c) 29.22 Negligence of a[n] or or [Elderly Person] 827.03(2)(d) 16.6 [Disabled Adult] [Child] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement *Culpable...

...Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant. *627 Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Pursuant to section 825.102(3), Florida Statutes (1997), appellant was convicted of neglect of a disabled person arising from the death of her mother. She appeals her conviction on several grounds, none of which we find meritorious. We affirm. Appellant first contends that sections 782.07(2) and 825.102(3)(a), Florida Statutes (1997), are facially unconstitutional because they do not contain a specific intent requirement and thereby violate due process by imposing an affirmative duty upon appellant to act, while penalizing her failure to comply....

...Accordingly, we affirm on this issue. AFFIRMED. STONE, C.J., GUNTHER and WARNER, JJ., concur. NOTES [1] Section 782.07(2), Florida Statutes (1997), provides: A person who causes the death of any elderly person or disabled adult by culpable negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Section 825.102(3), Florida Statutes (1997), provides: (3)(a) "Neglect of an elderly person or disabled adult" means: 1....

...ary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

...Daniels, Public Defender; and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant. Charlie Crist, Attorney General; and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee. BROWNING, J. In this direct criminal appeal, Appellant seeks reversal of his conviction for a violation of section 825.102(3)(c), Florida Statutes (2002), for willfully or by culpable negligence neglecting a disabled person without causing great bodily harm, permanent disfigurement, or permanent disability, arguing that the trial court erred by not granting his motion for judgment of acquittal....

...He possessed no ill motive towards the deceased patient; he merely exercised his discretion to deal with the most exigent circumstance: watching the dangerous patient who was a threat to hospital personnel. Such conduct is not "willful" as required for a conviction under section 825.102(3)(c)....

...for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury. In modifying the Committee’s proposal, the Court is mindful that while the Florida Legislature did not define “maliciously” in section 825.102, Florida Statutes (2012) (Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties), as it did in section 827.03, Florida Statutes (2012) défining Aggravated Child Abuse, the statutes otherwise mirror one another with respect to the elements establishing the respective offenses....

...NO. STAT. None Attempt_777.04_5fi Comment Where the lawfulness of the arrest is at issue, a special instruction may be warranted. This instruction was adopted in 2007 [ 965 So.2d 811 ] and 2013. 29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(1), Fla....

...for the person’s own care or protection is impaired. Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987). “Willfully” means knowingly, intentionally, and purposely. Lesser Included Offenses ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]— 825.102(1) CATEGORY ONE CATEGORY TWO FLA. INS. NO. STAT. None Battery 784.03 8.3 Attempt 777.04(1) 5.1 Comment This instruction was adopted in 2013. 29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(2), Fla....

...any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]]. Lesser Included Offenses AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]— 825.102(2) CATEGORY ONE CATEGORY TWO FLA. INS. NO, STAT. Aggravated Battery if Fla. Stat. 784.045 8.4 825.102(2)(a) is charged Abuse of An Elderly Person or Disabled 825.102(1) 29.20 Adult Felony Battery if Fla. Stat. 825.102(2)(a) is 784,041(1) 8.5 charged Battery if Fla. Stat. 825.102(2)(a) is 784.03 8.3 charged Attempt 777.04(1) 51 *706 Comment This instruction was adopted in 2013. 29.22 NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(3), Fla....

...[willfully] [by culpable negligence] failed or omitted to provide (victim) with the care, supervision, and services necessary to maintain (victim’s) physical or mental health. b. failed to make a reasonable effort to protect (victim) from abuse, neglect, or exploitation by another person. Give jf the § 825.102(3)(b), Fla....

...The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm. Give if element 3a is charged. § 825.102(3) (a), Fla....

...limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [elderly person] [disabled adult]. Give if “abuse” is chawed within element 3b. § 825.102(1), Fla....

...adult]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]]. Give if “neglect” is charged, within element 3b. § 825.102(3), Fla....

...If “exploitation” is charged within element Sb, insert the elements from Instruction U.9. See § 825.103, Fla. Stat. Lesser Included Offenses NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT _DISFIGUREMENT] — 825.102(3)(b)_ CATEGORY ONE_CATEGORY TWO FLA, STAT. INS. NO. Neglect of [An Elderly Person] [A Pis- 825.102(3)(c) 29,22 abled Adult] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement Culpable Negligence Inflicting Actual 784,05(2) 8,9 Personal Injury, if culpable negligence is charged *708 Culpable Negligence Expos...

...However, we approve the jury instruction given by the trial judge, Judge Briese. The statute with which Bayer was charged, section 782.07(2), provides: A person who causes the death of any elderly person or disabled adult by culpable negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree ... (emphasis supplied) The statute requires the state to prove (1) that a person was deceased; (2) that the deceased person was elderly or an disabled adult; and (3) that the death resulted "by culpable negligence under s. 825.102(3)." Section 825.102(3)(a) requires a "caregiver" to commit the described conduct which constitutes culpable negligence....

...glect of an elderly person commits aggravated manslaughter of an elderly person. The judge then gave the standard jury instruction on culpable negligence, which requires that the jury find willful or intentional conduct on the part of the defendant. Section 825.102(3) proscribes neglect caused either willfully or by culpable negligence. Sieniarecki v. State, 756 So.2d 68 (Fla.2000). The judge then instructed the jury concerning the meaning of neglect pursuant to section 825.102(3)(a), the statute referenced by 782.07(2), the crime with which Bayer was charged: *313 Neglect of an elderly person means: one, a caregiver's failure or omission to provide an elderly person with care, supervision and services neces...

...physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult.... § 825.102(3)(a)(l), Fla....

...The question therefore is not whether the evidence was sufficient to prove that Appellant engaged in the conduct she was accused of, it is whether that conduct — the affirmative act of administering this medication — constituted “neglect” as defined by section 825.102(3)(a)l. In answering this question we are mindful that our task is not to determine legislative intent with precision. Rather, we are charged with the duty of deciding whether section 825.102(3)(a)l is “susceptible of differing constructions” and, if so, whether application of the one most favorable to Appellant leads us to conclude that her conduct is not criminalized by the statute....

...State, 315 So.2d 546, 547 (Fla. 2d DCA 1975). This principle “rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). We begin our analysis by pointing out that section 825.102(3)(a) — the neglect provision — is part of Chapter 825, titled “Abuse, Neglect and Exploitation of Elderly and Disabled Adults.” As the title suggests, this Chapter criminalizes different types of behavior. Section 825.102(1) makes it a third degree felony to “abuse” a disabled or elderly person; section 825.102(3) criminalizes “neglect” of an elderly or disabled adult; section 825.1025 is aimed at lewd and lascivious offenses committed in the presence of a disabled or elderly person; and section 825.103 is directed at “exploitation.” Each statute specifically defines the conduct criminalized, and no provision refers to, or incorporates, definitions contained within another. Each definition is free standing and self-contained. The first substantive provision — section 825.102(1) — criminalizes “abuse,” defined to include, among other things, any “intentional act” that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.” § 825.101(l)(b), Fla....

...necessary to maintain the elderly person’s ... physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person .... ” § 825.102(3)(a)l, Fla. Stat. (2008). A holistic reading of section 825.102 therefore suggests that subsection (1) covers affirmative acts, and subsection (3) covers “failures” and “omissions,” thereby ensuring *961 that both “acts” and “omissions” that could reasonably be expected to harm an elderly or disabled adult are subject to prosecution....

...ld argue that an affirmative act — such as administering non-prescribed medication— which could reasonably result in harm, is ipso facto a “failure” to provide “care.” But one also could argue with equal — if not greater force — that section 825.102(3)(a)l criminalizes only a “failure” or “omission” to deliver necessities; in other words, deprivation....

...Lawson with three crimes arising out of the incident: count one, burglary of a dwelling with assault or battery in violation of section 810.02(2), Florida Statutes (2002), a first-degree felony punishable by life; count two, lewd or lascivious battery upon an elderly person in violation of section 825.1025(2), Florida Statutes (2002), a second-degree felony; and count three, abuse of an elderly person in violation of section 825.102(1), a third-degree felony....

...Lawson correctly argues that the statute of limitations had run on the crimes charged in counts two and three before the information was filed. In count two, the State charged Mr. Lawson with lewd or lascivious battery upon an elderly person under section 825.1025(2)....

...f it ... does so *1289 before prosecution is barred by the old statute” (alteration in original) (quoting Andrews v. State, 392 So.2d 270, 271 (Fla. 2d DCA 1980))). On count three, the State charged Mr. Lawson with abuse of an elderly person under section 825.102(1)....

...d, and would give her Ambien to induce sleep. The Ambien had not been prescribed to the woman. According to the testimony at trial, Appellant did this so that she could party with her boyfriend. Appellant was charged with elderly abuse/neglect under section 825.102(3)(a)(1), Florida Statutes (2008). Following a jury trial, Appellant was found guilty and sentenced to five years in prison.  Appellant appealed the trial court’s denial of her motion for acquittal and this Court reversed her judgment of conviction. Maxwell v. State, 110 So. 3d 958 (Fla. 4th DCA 2013). The Court found that the affirmative act of giving the elderly woman Ambien did not constitute neglect as defined by section 825.102(3)(a)(1), Florida Statutes (2008)....

...nt suicidal frenzy, can impose a legal duty of vigilance against suicide, but no special relation exists in this case. In a somewhat strained and haphazard effort to identify some source for the defendants’ alleged liability, the plaintiff invokes Section 825.102, Florida Statutes, which is inapplicable for several reasons, including that Kyle was not a “disabled adult” as defined in Section 825.101(4) and that no defendant is a “caregiver” as defined in Section 825.101(2)....

WALLACE, Judge. Bobby Martin Watson challenges his judgment and sentence for abuse of an elderly person, a violation of section 825.102(1), Florida Statutes (2010)....

...Watson for strong-arm robbery under section 812.13(1), (2)(c), Florida Statutes (2010). See Jones v. State, 652 So.2d 346, 349-50 (Fla.1995); Mitchell v. State, 407 So.2d 343, 343-44 (Fla. 4th DCA 1981). Instead, for reasons unexplained in our record, the State charged him with the abuse of an elderly person under section 825.102(1). 2 Strong-arm robbery is a second-degree felony, and abuse of an elderly person is a third-degree felony. §§ 812.13(2)(c), 825.102(1). III.THE STATUTE Section 825.102(1) provides as follows: *979 (1) “Abuse of an elderly person or disabled adult” means: (a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) An intentional act that could reas...

...3 At trial, the State presented a prima facie ease that Mr. Watson had abused Mr. Murphy within the meaning of the statute. The beating and strangulation would certainly qualify as “intentional infliction of physical or psychological injury” under section 825.102(l)(a)....

...A few people are feeble before they reach sixty; others remain strong and lead active lives well into their eighties. In other words, a person’s chronological age is not a reliable indicator of his or her ability to function independently in the world. 4 The purpose of section 825.102 is to provide additional protection for individuals sixty years of age or older when the infirmities of aging result in a dysfunction that impairs their ability to provide adequately for their own care and protection....

...ly or disabled person, in connection with the death of his 82-year-old mother. Section 782.07(2), Florida Statutes, declares that a person who causes the death of an elderly or disabled person by culpable negligence, under circumstances set forth in section 825.102(3), commits aggravated manslaughter. Neglect of an elderly or disabled person is defined by section 825.102(3) as: (a)1....

...This had caused her bed sores to reach an extreme state of ulceration. At trial, medical experts testified it would have taken several weeks for bed sores to have become as extensive and severe as hers were, at the time of her death. Lee argues that he, as opposed to James, [2] could not be found to have violated section 825.102(3) because he took no active role with regard to his mother's care, and thus was not a "caregiver." This is too narrow an interpretation of the term "caregiver." "Caregiver" logically encompasses more than just the person or persons who do the actual physical work of caring for an elderly or disabled adult....

...as living in her household. It did not deal with the duty or criminal liability under the statute of another adult member of the household. However, the court speculated about whether a common law duty exists, pre-dating the statutory one imposed by section 825.102(3)....

...The court concluded: Davis was more than a mere volunteer; she had a legal duty, not merely a moral one, to care for her mother. 335 S.E.2d at 378. We conclude that Lee Peterson (jointly with his brother James) had a legal duty, under the circumstances of this case, be it via common law or section 825.102(3), to care for his mother, himself, or to obtain care for her from others, and to make reasonable efforts to protect her from the abuse and neglect she suffered under the "care" of James....

...ch in fact ultimately led to her death. The defendant and his brother were charged with violating section 782.07(2), Florida Statutes, which provides: A person who causes the death of any elderly person or disabled adult by culpable negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Section 825.102(3), Florida Statutes, provides: (3)(a) "Neglect of an elderly person or disabled adult" means: 1....

...y passive conduct. In Sieniarecki v. State, 756 So.2d 68 (Fla.2000), the supreme court approved the Fourth District Court of Appeal decision in Sieniarecki v. State, 724 So.2d 626 (Fla. 4th DCA 1998), which sustained the defendant's conviction under section 825.102(3) and upheld the constitutionality of that section. In particular, the defendant in Sieniarecki had asserted that section 825.102(3) was unconstitutionally vague and violated due process by imposing an affirmative duty upon an adult child to care for her elderly mother....

...The daughter then failed to adequately address her mother's basic needs and the mother died under circumstances somewhat similar to those found in the instant case. In addressing the issue of the duty of the petitioner/defendant daughter to her debilitated mother, the supreme court explained: Petitioner asserts that section 825.102(3) creates an affirmative duty "to provide care, supervision, or services to another person" not recognized at common law....

...nal care." 720 ILCS 5/12-21(b)(3)(A) (West 1994). (Emphasis added). 678 N.E.2d at 714. This is a far more expansive definition of the term than that found in section 825.101(2), Florida Statutes. Finally, the state's alternate argument is that under section 825.102(3)(a)2, neglect of an elderly person or disabled adult includes a caregiver's failure to make a reasonable effort to protect said person from abuse, neglect or exploitation by another person....

...Gerber thereafter sued Keefe for negligence and he raised as a defense the release previously given by Gerber. During the pendency of this action, Gerber sued Prudential claiming that Prudential violated section 626.9521, Florida Statutes, in obtaining the release and violated section 825.102, Florida Statutes, by exploiting the elderly....

...appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. As applied to a Child. “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare. § 825.102(3)(a) or § 827.03(3)(a), Fla....

...center, group home, mental health treatment center, or continuing care community. As applied to a Child. § 827.01(1), Fla. Stat. “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare. § 825.102(3)(a) or § 827.03(3)(e), Fla....

... Lesser Included Offenses AGGRAVATED MANSLAUGHTER — 782.07(2), 782.07(3), AND 782.07(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Manslaughter 782.07 7.7 *Neglect by Culpable 825.102(3)(b) 29.22 Negligence of a[n] or or [Elderly Person] 827.03(2)(b) 16.5 [Disabled Adult] [Child] Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement *Neglect by Culpable 825.102(3)(c) 29.22 Negligence of a[n] or or [Elderly Person] 827.03(2)(d) 16.6 [Disabled Adult] [Child] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement *Culpable...

...NO. None Attempt 777.04(1) 5.1 Comment This instruction was adopted in 2013 [122 So. 3d 302] and amended in 2016. 29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(1), Fla....

...1st DCA 1987). “Willfully” means knowingly, intentionally, and purposely. -8-  Lesser Included Offenses ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(1) CATEGORY ONE CATEGORY TWO FLA....

...Comment This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2016. 29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(2), Fla....

...reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]]. Lesser Included Offenses AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Aggravated Battery if 784.045 8.4 Fla. Stat. 825.102(2)(a), Fla. Stat., is charged Abuse of An Elderly 825.102(1) 29.20 Person or Disabled Adult Felony Battery if Fla. 784.041(1) 8.5 Stat. 825.102(2)(a), Fla. Stat., is charged Battery if Fla. Stat. 784.03 8.3 825.102(2)(a), Fla. Stat., is charged Attempt 777.04(1) 5.1 Comment This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2016. - 11 -  29.22 NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.102(3), Fla....

...victim’s) physical or mental health. b. failed to make a reasonable effort to protect (victim) from [abuse], [neglect], [or] [exploitation] by another person. Give if the § 825.102(3)(b), Fla....

...ty of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm. Give if element 3a is charged. § 825.102(3)(a), Fla....

...limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well- being of the [elderly person] [disabled adult]. Give if “abuse” is charged within element 3b. § 825.102(1), Fla....

...]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]]. Give if “neglect” is charged within element 3b. § 825.102(3), Fla....

...m Instruction 14.9. See § 825.103, Fla. Stat. Lesser Included Offenses NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] — 825.102(3)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Neglect of [An Elderly 825.102(3)(c) 29.22 Person] [A Disabled Adult] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement Culpable Negligence 784.05(2) 8.9 Inflicting Actual Personal Injury, if culpable negli...

Statutes (2016), and for negligence per se under section 825.102, Florida Statutes (2016). Coley filed an Amended