07-6305 SIDNEY MARCELLUS BLACK, v. STATE OF FLORIDA

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida First District Court » 2010 » 07-6305 SIDNEY MARCELLUS BLACK, v. STATE OF FLORIDA

State: Florida

Court: Florida First District Court

Docket No: 07-6305

Case Date: 03/25/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SIDNEY MARCELLUS SLACK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed March 25, 2010. An appeal from the Circuit Court for Santa Rosa County. Thomas R. Santurri, Judge. Nancy A. Daniels, Public Defender, Terry Carley, Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee. CASE NO. 1D07-6305

BENTON, J. 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 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 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. (Emphasis added.) The state attempted to prove the charged offense through the testimony of Deputy Sheriff Andrew Stone. Deputy Stone testified that, on September 29, 2006, he passed an oncoming two-door Mercury vehicle, noticed in his rearview mirror that the vehicle's taillights were not working, turned around and decided to initiate a traffic stop. He 2

testified he was driving a "marked patrol car, lights on top," and was wearing a uniform at the time--the same one he was wearing at the trial. He testified that, to make the Mercury stop, he "engaged" his exterior lights and activated his siren. At the close of the state's case in chief, Mr. Slack moved for judgment of acquittal. Defense counsel argued, "I don't believe there was any testimony about the insignia on the vehicle. I have a case on that that says they must establish this was a law enforcement vehicle that has a law enforcement insignia." In arguing the motion, defense counsel highlighted Gorsuch v. State, 797 So. 2d 649 (Fla. 3d DCA 2001), a case involving three police vehicles, two of which were unmarked and one of which bore a 15-inch City of Miami seal. Id. at 651. In Gorsuch, there was no evidence that any of the vehicles exhibited agency insignia or that any sirens had been activated. Id. The Third District reversed the defendant's conviction for fleeing or attempting to elude a law enforcement officer, concluding, "while the facts demonstrate a willful attempt to elude police, . . . 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.'" Id. (emphasis in original). In the present case, the trial judge denied the motion for judgment of acquittal, reasoning: "He did refer it was a marked patrol vehicle, and he did identify himself as a member of the sheriff's department. I know by Florida law 3

their patrol vehicles must be marked in a certain scheme as required by Florida law." In due course, the jury was later instructed it had to 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). On review of an order denying a motion for judgment of acquittal, we "must apply the competent, substantial evidence standard and `consider the evidence and all reasonable inferences from the evidence in a light most favorable to the [S]tate.'" State v. Konegen, 18 So. 3d 697, 699 (Fla. 4th DCA 2009) (quoting Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted)). Considering the evidence in this way, we review de novo the legal issue a trial court's ruling on a motion for judgment of acquittal presents. See, e.g., Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (citing Tibbs v. 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."

Download 07-6305 SIDNEY MARCELLUS BLACK, v. STATE OF FLORIDA.pdf