SHAWN ERSKINE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Erskine appeals convictions for trespass in a conveyance, fleeing or attempting to elude a law enforcement officer, and resisting an officer without violence following a vehicle pursuit and foot chase in Miami-Dade County. The court affirms the convictions but reduces the fleeing conviction from a second-degree felony under section 316.1935(3) to a third-degree felony under section 316.1935(1) due to insufficient evidence of required police vehicle markings and improper jury instructions.
The court upheld the convictions but reduced the fleeing conviction to a third-degree felony under section 316.1935(1) because there was no evidence the police vehicle had the required agency insignia and jurisdictional markings prominently displayed under subsection (3), and the jury was improperly instructed on elements not required by subsection (3). The trial judge did not err in finding the juror challenge pretextual.
[1] A trial court's determination that a juror challenge is pretextual is a factual finding that will not be disturbed on appeal absent clear error.
[2] A conviction for fleeing or attempting to elude a law enforcement officer under section 316.1935(3), Florida Statutes, requires evidence that the law enforcement vehicle…
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Join FLexlaw to unlock all legal intelligence“The conviction for fleeing or attempting to elude in violation of section 316.1935(3), Florida Statutes (2006), however, is reduced to a third degree felony under section 316.1935(1) because, (1) as in Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001), there was no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed, as required by section 316.1935(3)”
Establishes the basis for reducing the conviction level due to missing required statutory elements
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceErskine was driving a car not his own when pursued by police through Miami-Dade County streets. The chase ended with a crash followed by a foot chase,…
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This case arose from an incident in which Erskine, driving a car not his own, was pursued by police through the streets of Miami-Dade County, and was apprehended at the end of a foot chase which began after he crashed the vehicle. In this appeal, he challenges convictions and sentences after a jury trial for misdemean- or trespass in a conveyance, as a lesser included offense of count I, grand theft of a vehicle, and as charged in the information, count II, fleeing or attempting to elude a law enforcement officer, and count III, resisting an officer without violence.
Considering first the only point which concerns all three convictions, we find no error in the trial judge’s determination that the defense’s challenge of a prospective juror was pretextual in nature. See Braggs v. State, 13 So.3d 505 (Fla. 3d DCA 2009); Lidiano v. State, 967 So.2d 972 (Fla. 3d DCA 2007), review denied, 983 So.2d 1154 (Fla.2008); Pringle v. State, 792 So.2d 533 (Fla. 3d DCA 2001), review denied, 817 So.2d 849 (Fla.2002).
The conviction for fleeing or attempting to elude in violation of section 316.1935(3), Florida Statutes (2006),1 however, is reduced to a third degree felony under section 316.1935(1) because, (1) as in Gorsuch *1209 v. State, 797 So.2d 649 (Fla. 3d DCA 2001),2 there was no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed, as required by section 316.1935(3), see also Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002), and (2) the jury was instructed that the defendant could be convicted of the more serious offense if he attempted to flee after having been stopped as Erskine in fact did, which is not an element of subsection (3), see Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), but is encompassed in subsection (1). The cause is remanded for resentencing accordingly. See § 924.34, Fla. Stat. (2006).
No separate error is asserted in the misdemeanor convictions as to counts I and III.
Affirmed as modified, remanded.
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Sanner v. State, 63 So. 3d 934 (Fla. 4th DCA 2011)…patrol vehicle in the chase had “agency insignia and other jurisdictional markings prominently displayed on the vehicle.... ” We agree that the state failed to put on proof of this statutory element, requiring reversal. See Ers [*935] kine v. State, 23 So. 3d 1207, 1208-09 (Fla. 3d DCA 2009); Jackson v. State, 818 So. 2d 539, 542 (Fla. 2d DCA 2002); Gorsuch v. State, 797 So. 2d 649, 650-51 (Fla. 3d DCA 2001). We therefore reverse with directions to reduce the conviction to a third degree felony under 316.1935…
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Hanson v. State, 92 So. 3d 288 (Fla. 5th DCA 2012)…such lesser offense were proven, we remand, pursuant to section 924.34, Florida Statutes (2010), for the trial court to enter a judgment of conviction for that offense. See Slack; Sanner v. State, 63 So. 3d 934 (Fla. 4th DCA 2011); Erskine v. State, 23 So. 3d 1207 (Fla. 3d DCA 2009). REVERSED and REMANDED. EVANDER and COHEN, JJ. and MONACO, D.A., Senior Judge, concur.…
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Ellis v. State, 258 So. 3d 491 (Fla. 1st DCA 2018)
Authorities Cited
- Jackson v. State, 818 So. 2d 539 (Fla. 2d DCA 2002)
- Eston E. Anderson v. State, 780 So. 2d 1012 (Fla. 4th DCA 2001)
- Nestor Moise v. State, 797 So. 2d 649 (Fla. 3d DCA 2001)
- Lidiano v. State, 967 So. 2d 972 (Fla. 3d DCA 2007)
- Eugene v. State, 792 So. 2d 533 (Fla. 4th DCA 2001)
- Pringle v. State, 792 So. 2d 533 (Fla. 3d DCA 2001)
- Braggs v. State, 13 So. 3d 505 (Fla. 3d DCA 2009)