Opinion
Case No. 1D07-6305.
Opinion filed January 12, 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.
Sidney Marcellus Slack appeals his conviction for fleeing or attempting to elude a law enforcement officer on grounds the trial court erred by denying his motion for judgment of acquittal, premised upon the state's failure to show that the vehicle driven by the law enforcement officer from whom Mr. Slack fled contained agency insignia prominently displayed. Because we agree with Mr. Slack's contention and reverse on that basis, we decline to address the other arguments he raises on appeal and decline to disturb his conviction for resisting an officer without violence.
Mr. Slack was charged with violating section 326.1935(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. . . .
(Emphasis added.)
The state attempted to show Mr. Slack committed the charged offense by offering the testimony of Deputy Sheriff Andrew Stone. Deputy Stone testified that on September 29, 2006, after passing a two-door Mercury vehicle, he noticed in his rearview mirror that the vehicle's taillights were not working. He turned around and decided to initiate a traffic stop. He testified he was driving a "marked patrol car, lights on top" and that he was wearing a uniform — the same one he was wearing on the day he testified at trial. He explained that in order to stop the Mercury, he engaged his exterior lights and activated his siren.
At the close of the state's case in chief, Mr. Slack moved for a 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."
The trial judge denied the motion, 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 their patrol vehicles must be marked in a certain scheme as required by Florida law." The jury was nevertheless correctly 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."
We review a trial court's ruling on a motion for judgment of acquittal de novo. See, e.g., Pagan v. State, 830 So. 2d 792 (Fla. 2002) (citing Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)). In reviewing a ruling on 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.'" Id. (quoting Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001) (en banc) (citations omitted)).
In arguing the state failed to show there was agency insignia prominently displayed on the patrol vehicle, defense counsel highlighted Gorsuch v. State, 797 So. 2d 649 (Fla. 3d DCA 2001). That case involved three police vehicles, two of which were unmarked and one of which bore a 15-inch City of Miami seal. Id. at 651. There was no evidence that any of the vehicles contained agency insignia. Further, there was no evidence that any sirens had been activated. Id. The Third District reversed and remanded 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. (citation omitted, emphasis in original).
In the present case, 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 there was "agency insignia and other jurisdictional markings prominently displayed on the vehicle." § 326.1935(2), Fla. Stat. (2006). That not all markings on law enforcement vehicles constitute agency insignia was made clear in Gorsuch. By neglecting to bring forth any evidence that Deputy Stone's vehicle contained 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 326.1935(2), and the trial court erred by denying Mr. Slack's motion for judgment of acquittal.
Reversed.
KAHN and CLARK, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED