         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-1084
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ANTONIO DUPREE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Leon County.
Robert R. Wheeler, Judge.

                         July 22, 2019


PER CURIAM.

    AFFIRMED. See Ellis v. State, 258 So. 3d 491 (Fla. 1st DCA
2018).

OSTERHAUS and BILBREY, JJ., concur; MAKAR, J., dissents with
opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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MAKAR, J., dissenting.

     This is yet another case involving the statute prohibiting
willfully fleeing or attempting 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,” § 316.1935(3), Fla.
Stat. (2019) (emphasis added), which has spawned two less than
harmonious precedents in this District: Ellis v. State, 258 So. 3d
491 (Fla. 1st DCA 2018), and Slack v. State, 30 So. 3d 684, 687
(Fla. 1st DCA 2010).

     In Slack, an officer’s testimony that “he was driving a ‘marked
patrol car’ with ‘lights on top’ and that he activated his lights and
siren” was deemed legally insufficient to prove the required
element that the defendant was fleeing a patrol vehicle with
“agency insignia and other jurisdictional markings prominently
displayed on the vehicle.” 30 So. 3d at 687. Noting that “not all
markings on law enforcement vehicles constitute agency insignia,”
this Court held that the failure to produce evidence that the police
vehicle “had agency insignia or other jurisdictional markings”
meant a “prima facie case of fleeing or attempting to elude a law
enforcement officer” hadn’t been shown, such that the defendant’s
motion for judgment of acquittal should have been granted. Id.
(relying on Gorsuch v. State, 797 So. 2d 649 (Fla. 3d DCA 2001))
(finding lack of evidence “that any of the vehicles had an agency
insignia as required by subsection 316.1935(3),” and noting that a
city seal may be a jurisdictional marking but is not an agency
insignia).

     The evidence in this case falls short of what was required in
Slack. Here, the only evidence of “agency insignia and other
jurisdictional markings prominently displayed on the vehicle” was
the following testimony:

    Q:     Okay. Let me ask you about this. What exactly
           were you driving at the time?

    A:     My marked patrol car.
                              ...


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    Q:    And in regard to your marked patrol car, when you
          say it’s “marked,” what is it marked with?

    A:    Police logo, lights; I mean, everything.

That’s it. No evidence establishes what the “police logo” looked
like, what it said, its size, where it was placed on the vehicle,
whether it was prominently displayed, and whether it was a
“jurisdictional marking” or an “agency insignia,” both of which the
statute separately requires. Based on Slack’s observation that “not
all markings on law enforcement vehicles constitute agency
insignia,” something more descriptive is required beyond generic
statements such as “police logo” on a “marked patrol car.” And to
say “everything” is to say nothing. Walker v. State, 219 So. 2d 707,
708 (Fla. 2d DCA 1969) (generalized statement without details is
“like the proverbial Old Mother Hubbard” because it
“‘covers everything but touches nothing’.”).

     In Ellis, a panel of this Court held that the statutory
requirements were met based on testimony that the police vehicle
was “marked” and that it had “all the decals, lights and
everything.” 258 So. 3d at 491 (emphasis omitted). Dashcam video
fleetingly showed the words “Pensacola Police Department” on the
back of the vehicle; but, there was “no photographic evidence of an
agency seal or badge” on the vehicle. Id. at 491, 494. Nonetheless,
the panel concluded that a jury could find that the vehicle “was
marked with the type of agency insignia commonly found on law
enforcement vehicles” thereby satisfying the statute. Id. at 494.

     This case falls closer to Slack because, at best, the evidence
establishes flight from a “marked patrol car” with a “logo,” without
any additional description or depictions of the “logo” and its
location/prominence on the vehicle. Unlike Ellis, which had video
evidence showing clearly visible jurisdictional markings on the
rear of the patrol vehicle, the record in this case has nothing to
support the conclusion that the “logo” was “prominently
displayed.” The statute and jury instructions specifically require
proof beyond a reasonable doubt that the patrol vehicle had
“agency insignia and other jurisdictional markings prominently
displayed on the vehicle and with siren and lights activated.” See
Fla. Std. Jury Instr. (Crim.) 28.8 (Fleeing To Elude A Law

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Enforcement Officer; Siren and Lights Activated with High Speed
or Reckless Driving) (2019) (emphasis added). It is conjecture
where the “logo” was located on the vehicle and whether it was
“prominently displayed,” making reversal under Slack the
appropriate course.

     That said, it bears emphasis once again that evidentiary gaps
of the type in this case may not be filled with assumptions or
surmise, particularly when the statutory requirements “can be
easily proven with a photo of the agency insignia on the vehicle or
via answers to questions about the description, size, and
placement of the agency insignia and markings.” Ellis, 258 So. 3d
at 499 (Makar, J., dissenting).

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Kevin Alvarez of the Law Office of Kevin Alvarez P.A.,
Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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