Ch. 768 demonstration, mob violence, or civil disobedience. … · 2014. 10. 1. · man rights, safety, or property. ... death is not extinguished by the settlement or in respect

F.S. 1987 NEGLIGENCE Ch. 768

scope of his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(b) As used in this subsection, the term: 1. "Employee" includes any volunteer firefighter . 2. "Officer, employee, or agent" includes, but is not

limited to, any public defender or his employee or agent, including, among others, an assistant public defender and an investigator.

(c) For purposes of the waiver of sovereign immunity only, a member of the Florida National Guard is not acting within the scope of state employment when performing duty under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal law; and neither the state nor any individual may be named in any action under this chapter arising from the performance of such federal duty.

(1 O)(a) Health care providers or vendors, or any of their employees or agents, that have contractually agreed to act as agents of the Department of Corrections to provide health care services to inmates of the state correctional system shall be considered agents of the State of Florida, Department of Corrections, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in said contract or by rule. The contracts shall provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.

(b) This subsection shall not be construed as designating persons providing health care services to inmates as employees or agents of the state for the purposes of chapter 440.

(11) Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act.

(12) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that with respect to any action for contribution, the action must be commenced within the limitations provided in s. 768.31 (4).

(13) No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the claim arises out of such riot, unlawful assembly, public

demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court.

(14) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs, that are subject to homogeneous risks may purchase insurance jointly or may join together as selfinsurers to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding.

(15) This section, as amended by ch . 81-317, Laws of Florida, shall apply only to causes of actions which accrue on or after October 1, 1981 .

(16) No provision of this section , or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984.

History.-s. 1, ch. 73-313; s. 1, ch. 74-235; ss. 1, 2, 3, ch. 77-86; s. 9, ch . 79-139; s. 1, ch . 79-253; s. 284, ch . 79-400; s. 1, ch. 80-271 ; ss. 1, 2, ch. 81-317; s. 1, ch. 83-44; s. 1, ch. 83-257; s. 1, ch. 84-29; s. 1, ch. 84-335; s. 21, ch. 86-183; s. 1, ch . 86-184 ; s. 3. ch. 87-134.

'Note.-As amended by s. 3, ch. 87-134. Section 5, ch . 87-134, provides that "[t]his act shall take effect upcn becoming a law and shall apply to all causes of action then pending or thereafter filed. but shall not apply to any cause of action to which a final judgment has been rendered or in which the jury has returned a verdict unless such judgment or verdict has been or shall be reversed :

768.30 Dates s. 768.28 takes effect.-Section 768.28 shall take effect on July 1, 197 4, for the executive departments of the state and on January 1 , 1975, for all other agencies and subdivisions of the state, and shall apply only to incidents occurring on or after those dates.

Hiatory.-s. 4, ch. 73-313; s. 3, ch . 74-235.

768.31 Contribution among tortfeasors.-(1) SHORT TITLE.-This act shall be cited as the

"Uniform Contribution Among Tortfeasors Act." (2) RIGHT TO CONTRIBUTION.-(a) Except as otherwise provided in this act, when

two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

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Ch. 768 NEGLIGENCE F.S. 1987

(c) There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.

(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.

(e) A liability insurer who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.

(f) This act does not impair any right of indemnity under existing law. When one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.

(g) This act shall not apply to breaches of trust or of other fiduciary obligation.

(3) PRO RATA SHARES.-In determining the pro rata shares of tortfeasors in the entire liability:

(a) Their relative degrees of fault shall be the basis for allocation of liability.

(b) If equity requires, the collective liability of some as a group shall constitute a single share.

(c) Principles of equity applicable to contribution generally shall apply.

(4) ENFORCEMENT.-(a) Whether or not judgment has been entered in an

action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.

(b) When a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to all parties to the action .

(c) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within 1 year after the judgment has becqme final by lapse of time for appeal or after appellate review.

· (d) If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either:

1. , Discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against him and has commenced his action for contribution within 1 year after payment, or

2. Agreed, while action is pending against him, to discharge the common liability and has within 1 year after the agreement paid the liability and commenced his action for contribution.

(e) The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.

(f) The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.

(5) RELEASE OR COVENANT NOT TO SUE.-When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant , or in the amount of the consideration paid for it, whichever is the greater; and,

(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

(6) UNIFORMITY OF INTERPRETATION.-This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

(7) PENDING CAUSES OF ACTION.-This act shall apply to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors is involved and to cases thereafter filed.

History.-ss. 1, 4, ch. 75-108; s. 1, ch. 76-186.

768.40

768.45 768.46 768.495

768.54 768.57

768.575 768.58

768.595

768.60 768.61

768.66

PART II

MEDICAL MALPRACTICE AND RELATED MATIERS

Medical review committee, immunity from lia-bility.

Medical negligence; standards of recovery. Florida Medical Consent Law. Pleading in medical negligence cases; claim

for punitive damages. Florida Patient's Compensation Fund. Notice before filing action for medical mal

practice; presuit screening period; offers for admission of liability and for arbitration; review.

Court-ordered arbitration. Mandatory settlement conference in medical

malpractice actions. Attorney's fees in medical malpractice ac

tions. Liability of health care facilities. Engaging in unnecessary diagnostic testing;

penalties. Medical malpractice impact study.

768.40 Medical review commiHee, immunity from liability.-

( 1) As used in this section : (a) The term "medical review committee" or "commit

tee" means:

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1. A committee: a. Of a hospital or ambulatory surgical center li-

censed under chapter 395 or a health maintenance organization certificated under part II of chapter 641,

b. Of a state or local professional society of health care providers,

c. Of a medical staff of a licensed hospital or nurs-ing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, or

d. Of the Department of Corrections or the Correc-tional Medical Authority as created under s. 945.602, or employees, agents, or consultants of either the department or the authority or both,

which committee is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area; or

2. A committee of an insurer, self-insurer, or joint underwriting association of medical malpractice insurance, or other persons conducting review pursuant to the provisions of s. 768.57.

(b) The term "health care providers" means physicians licensed under chapter 458, osteopaths licensed under chapter 459, podiatrists licensed under chapter 461, dentists licensed under chapter 466, chiropractors licensed under chapter 460, pharmacists licensed under chapter 465, or hospitals or ambulatory surgical centers licensed under chapter 395.

(2) A medical review committee of a hospital or ambulatory surgical center or health maintenance organization shall screen, evaluate, and review the professional and medical competence of applicants to, and members of, medical staff. As a condition of licensure, each health care provider shall cooperate with a review of professional competence performed by a medical review committee.

(3)(a) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information, including information concerning the prescribing of substances listed in s. 893.03(2), to such committee, or any person, including any person acting as a witness, incident reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud.

(b) The provisions of this section do not affect the official immunity of an officer or employee of a public corporation.

(4) Except as provided in subsection (3), this section shall not be construed to confer immunity from liability on any professional society or hospital or upon any health professional while performing services other than as a member of a medical review committee or upon any person, including any person acting as a witness, inci-

dent reporter to, or investigator for, a medical review committee, for any act or proceeding undertaken or performed outside the scope of the functions of such committee. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted.

(5) The investigations, proceedings, and records of a committee as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.

(6)(a) In the event that the defendant prevails in an action brought by a health care provider against any person that initiated , participated in, was a witness in, or conducted any review as authorized by this section, the court shall award reasonable attorney's fees and costs to the defendant.

(b) As a condition of any health care provider bringing any action against any person that initiated, participated in, was a witness in, or conducted any review as authorized by this section and before any responsive pleading is due, the health care provider shall post a bond or other security, as set by the court having jurisdiction of the action, in an amount sufficient to pay the costs and attorney's fees .

History.-ss. 1, 2, ch. 72-62; s. 1, ch . 73-50; s. 1, ch. 77-461 ; s . 285, ch. 79--400; s. 3, ch. 80-353; s. 8, ch . 85-175; s . 1, ch. 87-342.

Note.-Former s. 768.131 .

768.45 Medical negligence; standards of recovery. (1) In any action for recovery of damages based on

the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in 1s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as ac-

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ceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the health care provider whose negligence is claimed to have created the cause of action is not certified by the appropriate American board as being a specialist , is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who:

1 . Is licensed by the appropriate regulatory agency of this state;

2. Is trained and experienced in the same discipline or school of practice; and

3. Practices in the same or similar medical commu-nity .

(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist , is trained and experienced in a medical specialty, or holds himself out as a specialist , a "similar health care provider" is one who:

1. Is trained and experienced in the same specialty; and

2. Is certified by the appropriate American board in the same specialty.

However, if any health care provider described in this paragraph is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a "similar health care provider. "

(c) The purpose of this subsection is to establish a relative standard of care for various categories and classifications of health care providers. Any health care provider may testify as an expert in any action if he:

1. Is a similar health care provider pursuant to para-graph (a) or paragraph (b) ; or

2. Is not a similar health care provider pursuant to paragraph (a) or paragraph (b) but , to the satisfaction of the court , possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training , experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.

(3)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical , medicinal , or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 768.46.

(4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical , examination , or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(5) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

History.- s. 12, ch. 76- 260; s. 8, ch . 77-64; s. 1, ch. 77-174; s. 10, ch. 85-175. 'Note.-Section 768.50 was repealed by s. 68, ch. 86- 160.

768.46 Florida Medical Consent Law.-(1) This section shall be known and cited as the

"Florida Medical Consent Law." (2) In any medical treatment activity not covered by

s. 768.13, entitled the "Good Samaritan Act ," this act shall govern.

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopath licensed under chapter 459, chiropractor licensed under chapter 460, podiatrist licensed under chapter 461 , or dentist licensed under chapter 466 in an action brought for treating, examining , or operating on a patient without his informed consent when:

(a)1. The action of the physician , osteopath, chiro-practor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and

2. A reasonable individual, from the information pro-vided by the physician , osteopath , chiropractor, podiatrist , or dentist, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians , osteopaths, chiropractors, podiatrists, or dentists in the same or similar community who perform similar treatments or procedures; or

(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he been advised by the physician , osteopath, chiropractor, podiatrist , or dentist in accordance with the provisions of paragraph (a).

(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall , if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

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(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

History.-s. 11 , ch. 75-9; s. 21 , ch. 85-175. Note.-Former s. 768.132.

768.495 Pleading in medical negligence cases; claim for punitive damages.-

(1) No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 768.45 that there appears to be evidence of medical negligence. If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney 's fees and taxable costs against claimant's counsel , and shall submit the matter to The Florida Bar for disciplinary review of the attorney.

(2) Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $25, established by the chief judge, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1 ). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

History.-s. 12, ch. 85-175; s. 68, ch. 86-160; s. 8, ch. 86-287 . cf.-s. 95.11 Limitation of actions with respect to 'action for medical malpractice,

as defined.

1768.54 Florida Patient's Compensation Fund.(1) DEFINITIONS.- The following definitions apply in

the interpretation and enforcement of this section : (a) The term "fund" means the Florida Patient's Com

pensation Fund . The fund is not a state agency, board , or commission.

(b) The term "health care provider" means any: 1. Hospital licensed under chapter 395. 2. Physician licensed, or physician's assistant certi-

fied, under chapter 458. 3. Osteopath licensed under chapter 459. 4. Podiatrist licensed under chapter 461. 5. Health maintenance organization certificated un

der part II of chapter 641 . 6. Ambulatory surgical center licensed under chap-

ter 395. 7. "Other medical facility" as defined in paragraph

(c).

8. Professional association, partnership, corpora-tion, joint venture, or other association by the individuals set forth in subparagraphs 2., 3., and 4. for professional activity.

(c) The term "other medical facility" means a facility the primary purpose of which is to provide human medical diagnostic services or a facility providing nonsurgical human medical treatment and in which the patient is admitted to and discharged from such facility within the same working day, and which is not part of a hospital. However, a facility existing for the primary purpose of performing terminations of pregnancy, or an office maintained by a physician or dentist for the practice of medicine, shall not be construed to be an "other medical facility. "

(d) The term "hospital" means a hospital licensed under chapter 395.

(e) The term "health maintenance organization" means any health maintenance organization certificated under part II of chapter 641.

(f) The term "occurrence" means an accident or incident, including continuous or repeated exposure to conditions, which results in patient injuries not intended from the standpoint of the insured .

(g) The term "per claim" means all claims per patient arising out of an occurrence.

(h) The term "committee" means a committee or board of trustees of a health care provider or group of health care providers established to make recommendations , policy, or decisions regarding patient institutional utilization , patient treatment, or institutional staff privileges or to perform other administrative or professional purposes or functions.

(i) The term "house physician" means any physician, osteopath , podiatrist, or dentist except: a physician, osteopath , podiatrist, or dentist with staff privileges at a hospital; a physician , osteopath, podiatrist , or dentist providing emergency room services; an anesthesiologist, pathologist, or radiologist; or a physician, osteopath, podiatrist, or dentist who performs a service for a fee.

(2) COVERAGE.-(a) Each hospital, unless exempted under this para

graph or paragraph (c) , shall, and each health care provider other than a hospital may, pay the yearly fee and assessment or, in cases in which such hospital or health care provider joined the fund after the fiscal year had begun , a prorated fee or assessment into the fund pursuant to subsection (3) . Any hospital operated by an agency, subdivision , or instrumentality of the state is exempt from the provisions of this section and is not required to participate in the fund.

(b) Whenever a claim covered under subsection (3) results in a settlement or judgment against a health care provider , the fund shall pay to the extent of its coverage if the health care provider has paid the fees and any assessments required pursuant to subsection (3) for the year in which the incident occurred for which the claim is filed, provides an adequate defense for the fund, and pays the initial amount of the claim up to the applicable amount set forth in paragraph (f) or the maximum limit of the underlying coverage maintained by the health care provider on the date when the incident occurred for

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which the claim is filed , whichever is greater. Coverages for such claims shall be provided on an occurrence basis by the fund independently for each fiscal year, such fiscal year to run from January 1 to December 31 . The fund may also provide coverages for portions of each fiscal year. The limits of such coverage afforded by the fund for each health care provider other than a hospital may not exceed the total limits for both entry level and fund coverage of $1 million per claim with a $3 million annual aggregate, or $2 million per claim with a $4 million annual aggregate, as selected by the health care provider. In the case of coverage for a hospital, the limit of coverage afforded by the fund may not exceed the total limits for both entry level and fund coverage of $2.5 million per claim with no annual aggregate. The health care provider is responsible for the payment of any amount of a claim in excess of the elected limit. The fund is not responsible for the payment of punitive damages awarded for actual or direct negligence of the health care provider member. The health care provider shall have the same responsibility for punitive damages it would have if it were not a member of the fund. A health care provider may have the necessary funds available for payment when due or may provide underlying financial responsibility by one of the following methods:

1. A bond purchased from a licensed surety company, which bond is in the applicable amount set forth in paragraph (f) per claim and 3 times the applicable per-claim limit in the aggregate per year, plus an additional amount which is sufficient to meet claims defense and expenses; however, a total bond amount for all years equal to reserved loss and expense amounts for known cases plus 3 times the applicable amount set forth in paragraph (f) plus $45,000 shall be the maximum bond amount required;

2. An adequate escrow account in the applicable amount set forth in paragraph (f) per claim and 3 times the per-claim limit in the aggregate per year, plus an additional amount which is sufficient to meet claims defense and expenses; however, a total escrow account for all years equal to reserved loss and expense amounts for known cases plus 3 times the applicable amount set forth in paragraph (f) plus $45,000 shall be the maximum escrow amount required;

3. Medical malpractice insurance in the applicable amount set forth in paragraph (f) or more per claim from a private insurer or the Joint Underwriting Association established under s. 627.351 (7); or

4. Self-insurance as provided ins. 627.357, provid-ing coverage in the applicable amount set forth in paragraph (f) or more per claim and 3 times the applicable per-claim limit in the aggregate per year.

(c) Any hospital that can meet one of the following provisions for demonstrating financial responsibility to pay claims and costs ancillary thereto arising out of the rendering of or failure to render medical care or services and for bodily injury or property damage to the person or property of any patient arising out of the activities of ·the hospital in this state or arising out of the activities of covered individuals listed in paragraph (e) is not required to participate in the fund:

1. Post bond in an amount equivalent to $10,000 per claim for each hospital bed in such hospital, not to exceed a $2,500,000 annual aggregate.

2. Establish an escrow account in an amount equiv-alent to $10,000 per claim for each hospital bed in such hospital , not to exceed a $2,500,000 annual aggregate, to the satisfaction of the Department of Health and Rehabilitative Services .

3. Obtain professional liability coverage in an amount equivalent to $10,000 or more per claim for each bed in such hospital from a private insurer, from the Joint Underwriting Association established under s. 627.351 (4) , or through a plan of self-insurance as provided in s. 627.357. However, no hospital may be required to obtain such coverage in an amount exceeding a $2,500,000 annual aggregate.

(d)1. Any health care provider who participates in the fund and who does not meet the provisions of paragraph (b) shall not be covered by the fund.

2. Annually, the Department of Health and Rehabili-tative Services shall require documentation by each hospital that such hospital is in compliance, and will remain in compliance, with the provisions of this section. The department shall review the documentation and then deliver the documentation to the board of governors. At least 60 days before the time a license will be issued or renewed , the department shall request from the board of governors a certification that each hospital is in compliance with the provisions of this section. The board of governors shall not be liable under the law for any erroneous certification . The department may not issue or renew the license of any hospital which has not been certified by the board of governors. The license of any hospital that fails to remain in compliance or fails to provide such documentation shall be revoked or suspended by the department.

(e) The coverage afforded by the fund for a participating hospital or ambulatory surgical center shall apply to the officers, trustees, volunteer workers, trainees, committee members (including physicians, osteopaths, podiatrists, and dentists), and employees of the hospital or ambulatory surgical center, other than employed physicians licensed under chapter 458, physician's assistants licensed under chapter 458, osteopaths licensed under chapter 459, dentists licensed under chapter 466, and podiatrists licensed under chapter 461. However, the coverage afforded by the fund for a participating hospital shall apply to house physicians, interns, employed physician residents in a resident training program, or physicians performing purely administrative duties for the participating hospitals other than the treatment of patients. This coverage shall apply to the hospital or ambulatory surgical center and those included in this subsection as one health care provider.

(f) Each health care provider shall be responsible for paying the amount of each settlement or judgment for each claim up to the fund entry level amount it selects. The selected entry level amount shall be not less than the following :

1. As of July 1, 1983: $150,000 per claim or $500,000 per occurrence.

2. As of January 1, 1987: $200,000 per claim or $500,000 per occurrence.

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3. As of January 1, 1990: $250,000 per claim or $500,000 per occurrence.

As of January 1, 1990, the minimum entry level amount shall be indexed to the medical component of the consumer price index and shall be adjusted by the fund each year thereafter accordingly.

(3) THE FUND.-(a) Purposes.-There is created a "Florida Patient's

Compensation Fund" for the purpose of paying that portion of any claim arising out of the rendering of or failure to render medical care or services, or arising out of activities of committees, for health care providers or any claim for bodily injury or property damage to the person or property of any patient, including all patient injuries and deaths, arising out of the members' activities for those health care providers set forth in subparagraphs ( 1 )(b) 1., 5., 6., and 7. which is in excess of the fund entry level selected and less than the limit selected under paragraph (2)(b). The fund shall be responsible only for payment of claims against health care providers who are in compliance with the provisions of paragraph (2)(b), of reasonable and necessary expenses incurred in the payment of claims, and of fund administrative expenses.

(b) Fund administration and operation.-1. The fund shall operate subject to the supervision

and approval of a board of governors consisting of a representative of the insurance industry appointed by the Insurance Commissioner, an attorney appointed by The Florida Bar, a representative of physicians appointed by the Florida Medical Association, a representative of physicians' insurance appointed by the Insurance Commissioner, a representative of physicians' self-insurance appointed by the Insurance Commissioner, two representatives of hospitals appointed by the Florida Hospital Association, a representative of hospital insurance appointed by the Insurance Commissioner, a representative of hospital self-insurance appointed by the Insurance Commissioner, a representative of the osteopathic physicians' or podiatrists ' insurance or self-insurance appointed by the Insurance Commissioner, and a representative of the general public appointed by the Insurance Commissioner. The board of governors shall, during the first meeting after June 30 of each year, choose one of its members to serve as chairman of the board and another member to serve as vice chairman of the board. The members of the board shall be appointed to serve terms of 4 years, except that the initial appointments of a representative of the general public by the Insurance Commissioner, an attorney by The Florida Bar, a representative of physicians by the Florida Medical Association , and one of the two representatives of the Florida Hospital Association shall be for terms of 3 years; thereafter, such representatives shall be appointed for terms of 4 years. Subsequent to initial appointments for 4-year terms, the representative of the osteopathic physicians' or podiatrists' insurance or selfinsurance appointed by the Insurance Commissioner and the representative of hospital self-insurance appointed by the Insurance Commissioner shall be appointed for 2-year terms; thereafter, such representatives shall be appointed for terms of 4 years. The members appointed during 1979 who have not resigned shall

automatically, and without further action of their respective appointing authorities, be the initial appointees hereunder and shall continue their present service to serve the terms specified herein. Each appointed member may designate in writing to the chairman an alternate to act in the member's absence or incapacity. A member of the board , or his alternate, may be reimbursed from the assets of the fund for expenses incurred by him as a member, or alternate member, of the board and for committee work, but he may not otherwise be compensated by the fund for his service as a board member or alternate.

2. There shall be no liability on the part of, and no cause of action of any nature shall arise against , the fund or its agents or employees, professional advisers or consultants, members of the board of governors or their alternates, or the Department of Insurance or its representatives for any action taken by them in the performance of their powers and duties pursuant to this section .

(c) Powers of the fund.- The fund has the power to: 1. Sue and be sued, and appear and defend, in all

actions and proceedings in its name to the same extent as a natural person .

2. Adopt, change, amend, and repeal a plan of op-eration, not inconsistent with law, for the regulation and administration of the affairs of the fund . The plan and any changes thereto shall be filed with the Insurance Commissioner and are all subject to his approval before implementation by the fund. All fund members, board members, and employees shall comply with the plan of operation.

3. Have and exercise all powers necessary or con-venient to effect any or all of the purposes for which the fund is created.

4. Enter into such contracts as are necessary or proper to carry out the provisions and purposes of this section.

5. Employ or retain such persons as are necessary to perform the administrative and financial transactions and responsibilities of the fund and to perform other necessary or proper functions unless prohibited by law.

6. Take such legal action as may be necessary to avoid payment of improper claims.

7. Indemnify any employee, agent, member of the board of governors or his alternate, or person acting on behalf of the fund in an official capacity, for expenses, including attorney 's fees , judgments , fines , and amounts paid in settlement actually and reasonably incurred by him in connection with any action, suit, or proceeding, including any appeal thereof, arising out of his capacity in acting on behalf of the fund , if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the fund and, with respect to any criminal action or proceeding, he had reasonable cause to believe his conduct was lawful.

(d) Fees and assessments.-Each health care provider, as set forth in subsection (2), electing to comply with paragraph (2)(b) for a given fiscal year shall pay the fees and any assessments established under this section relative to such fiscal year, for deposit into the fund. Those entering the fund after the fiscal year has begun shall pay a prorated share of the yearly fees for a prorat-

1507


ed membership. Actuarially sound membership fees payable annually, semiannually, or quarterly with appropriate service charges shall be established by the fund before January 1 of each fiscal year, based on the following considerations:

1 . Past and prospective loss and expense experi-ence in different types of practice and in different geographical areas within the state;

2. The prior claims experience of the members cov-ered under the fund ; and

3. Risk factors for persons who are retired , semire-tired, or part-time professionals .

Such fees shall be based on not more than three geographical areas, not necessarily contiguous, with five categories of practice and with categories which contemplate separate risk ratings for hospitals, for health maintenance organizations, for ambulatory surgical facilities, and for other medical facilities. The fund is authorized to adjust the fees of an individual member to reflect the claims experience of such member. Each fiscal year of the fund shall operate independently of preceding fiscal years. Participants shall only be liable for assessments for claims from years during which they were members of the fund ; in cases in which a participant is a member of the fund for less than the total fiscal year, a member shall be subject to assessments for that year on a pro rata basis determined by the percentage of participation for the year. The fund shall submit to the Insurance Commissioner the classifications and membership fees to be charged, and the Insurance Commissioner shall review such fees and shall approve them if they comply with all the requirements of this section and fairly reflect the considerations provided for in this section . If the classifications or membership fees do not comply with this section , the Insurance Commissioner shall set classifications or membership fees which do comply and which give due recognition to all considerations provided for in this section . Nothing contained herein shall be construed as imposing liability for payment of any part of a fund deficit on the Joint Underwriting Association authorized by s. 627.351 (4) or its member insurers. If the fund determines that the amount of money in an account for a given fiscal year is in excess of or not sufficient to satisfy the claims made against the account, the fund shall certify the amount of the projected excess or insufficiency to the Insurance Commissioner and request the Insurance Commissioner to levy an assessment against or refund to all participants in the fund for that fiscal year, prorated, based on the number of days of participation during the year in question. The Insurance Commissioner shall approve the request of the fund to refund to , or levy any assessment against , the participants, provided the refund or assessment fairly reflects the same considerations and classifications upon which the membership fees were based . The assessment shall be in an amount sufficient to satisfy reserve requirements for known claims, including expenses to satisfy the claims, made against the account for a given fiscal year. In any proceeding to challenge the amount of the refund or assessment, it is to be presumed that the amount of refund or assessment requested by the fund is correct, if the fund demonstrates

that it has used reasonable claims handling and reserving procedures . Additional assessments may be certified and levied in accordance with this paragraph as necessary for any fiscal year. If a fund member objects to his assessment, he shall, as a condition precedent to bringing legal action contesting the assessment, pay the assessment, under protest, to the fund. The fund may borrow money needed for current operations, if necessary to pay claims and related expenses, fees, and costs timely for a given fiscal year, from an account for another fiscal year until such time as sufficient funds have been obtained through the assessment process. Any such money, together with interest at the mean interest rate earned on the investment portfolio of the fund , shall be repaid from the next assessment for the given fiscal year. If any assessments are levied in accordance with this subsection as a result of claims in excess of $500,000 per occurrence, and such assessments are a result of the liability of certain individuals and entities specified in paragraph (2)(e), only hospitals shall be subject to such assessments. Before approving the request of the fund to charge membership fees, issue refunds, or levy assessments, the Insurance Commissioner shall publish notice of the request in the Florida Administrative Weekly. Pursuant to chapter 120, any party substantially affected may request an appropriate proceeding . Any petition for such a proceeding shall be filed with the Department of Insurance within 21 days after the date of publication of the notice in the Florida Administrative Weekly .

(e) Fund accounting and audit.-1. Money shall be withdrawn from the fund only

upon a voucher as authorized by the board of governors. 2. All books, records , and audits of the fund shall

be open for reasonable inspection to the general public, except that a claim file in possession of the fund, fund members , and their insurers shall not be available for review during processing of that claim. Any book, record, document, audit, or asset acquired by, prepared for, or paid for by the fund is subject to the authority of the board of governors, which shall be responsible therefor .

3. Persons authorized to receive deposits, issue vouchers, or withdraw or otherwise disburse any fund moneys shall post a blanket fidelity bond in an amount reasonably sufficient to protect fund assets. The cost of such bond shall be paid from the fund .

4. Annually, the fund shall furnish, upon request, audited financial reports to any fund participant and to the Department of Insurance and the Joint Legislative Auditing Committee . The reports shall be prepared in accordance with accepted accounting procedures and shall include income and such other information as may be required by the Department of Insurance or the Joint Legislative Auditing Committee.

5. Any money held in the fund shall be invested in interest-bearing investments by the board of governors of the fund as administrator. However, in no case may any such money be invested in the stock of any insurer participating in the Joint Underwriting Association authorized by s. 627 .351 (4) or in· the parent company of, or company owning a controlling interest in , such insurer. All income derived from such investments shall be credited to the fund .

1508


6. Any health care provider participating in the fund may withdraw from such participation only at the end of a fiscal year; however, such health care provider shall remain subject to any assessment or any refund pertaining to any year in which such member participated in the fund.

(f) Claims procedures.-1 . Any person may file an action against a partici-

pating health care provider for damages covered under the fund, except that the person filing the claim may not recover against the fund unless the fund was named as a defendant in the suit. The fund is not required to actively defend a claim until the fund is named therein . If, after the facts upon which the claim is based are reviewed, it appears that the claim will exceed the applicable amount set forth in paragraph (2)(f) or, if greater, the amount of the health care provider's basic coverage, the fund shall appear and actively defend itself when named as a defendant in the suit. In so defending , the fund shall retain counsel and pay out of the account for the appropriate year attorneys' fees and expenses, including court costs incurred in defending the fund . In any claim, the attorney or law firm retained to defend the fund may not be retained to defend the Joint Underwriting Association authorized by s. 627.351 (4) . The fund is authorized to negotiate with any claimant having a judgment exceeding the applicable amount set forth in paragraph (2)(f) to reach an agreement as to the manner in which that portion of the judgment exceeding such amount is to be paid . Any judgment affecting the fund may be appealed under the Florida Appellate Rules of Procedure, as with any defendant.

2. It is the responsibility of the insurer or self-insurer providing insurance or self-insurance for a health care provider who is also covered by the fund to provide an adequate defense on any claim filed which potentially affects the fund , with respect to such insurance contract or self-insurance contract. The insurer or self-insurer shall act in a fiduciary relationship toward the fund with respect to any claim affecting the fund . No settlement exceeding the applicable amount set forth in paragraph (2)(f) , or any other amount which could require payment by the fund , may be agreed to unless approved by the fund .

3. A person who has recovered a final judgment against the fund or against a health care provider who is covered by the fund may file a claim with the fund to recover that portion of such judgment which is in excess of the applicable amount set forth in paragraph (2)(f) or the amount of the health care provider's basic coverage, if greater, as set forth in paragraph (2)(b). The amount of liability of the fund under a judgment, including court costs, reasonable attorney's fees, and interest, shall be paid in a lump sum, except that any claims for future special damages, as set forth ins. 2768.48(1)(a) and (b), shall be paid periodically as they are incurred by the claimant. If a claimant dies while receiving periodic payments, payment for future medical expenses shall cease, but payment for future wage loss, if any, shall continue at a rate of not more than $100,000 per year. The fund may pay a lump sum reflecting the present value of future wage losses in lieu of continuing the periodic payments .

4. Payment of settlements or judgments involving the fund shall be paid in the order received within 60 days after the date of settlement or judgment, unless appealed by the fund . If the account for a given year does not have enough money to pay all of the settlements or judgments, those claims received after the funds are exhausted shall be payable in the order in which they are received. However, no claimant has the right to execute against the fund to the extent that the judgment is for a claim covered in a membership year for which the fund has insufficient assets to pay the claim , as determined by membership fees for such year, investment income generated by such fees, and assessments collected from members for such year. When the fund has insufficient assets to pay claims for a fund year, the fund will not be required to post a supersedeas bond in order to stay execution of a judgment pending appeal. The fund shall retain a reasonable sum of money for payment of administrative and claims expense, which money will not be subject to execution .

5. Except to the extent of the appropriate fund en-try level amount selected , if a judgment is entered against the fund for a year in which there are insufficient assets to satisfy the claim, an automatic stay of execution and collection in favor of the fund member shall exist for that portion of the judgment which exceeds the selected entry level amount, and for which fund coverage exists. Such stay shall only be granted to those members who have fully complied with the requirements of fund membership, and such stay shall remain in effect until adequate assessments are collected by the fund to pay the claim . Upon competent proof that the portion of any claim covered by the fund is uncollectible from the fund , the member's stay of execution may be vacated by the court , upon application by the plaintiff and hearing thereon.

6. If a health care provider participating in the fund has coverage in excess of the applicable amount set forth in paragraph (2)(f), such health care provider shall be liable for losses up to the amount of his coverage, and such health care provider shall receive an appropriate reduction of the fees and assessments for participation in the fund . Such reduction shall be granted only after such health care provider has proved to the satisfaction of the fund that such health care provider had such coverage during the period of membership of the fiscal year.

7. The manager of the fund or his assistant is the agent for service of process for the plan .

(g) Risk management program.-The fund shall establish a risk management program as part of its administrative functions. All health care providers, as defined in subparagraphs (1)(b)1 ., 5., 6., and 7., participating in the fund shall comply with the provisions of the risk management program established by the fund . The risk management program shall include the following components:

1. The investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents causing injury to patients;

2. The development of appropriate measures to minimize the risk of injuries and adverse incidents to patients ;

1509


3. The analysis of patient grievances which relate to patient care and the quality of medical services;

4. The development and implementation of an inci-dent reporting system based upon the affirmative duty of all health care providers and all agents and employees of health care providers and health care facilities to report injuries and incidents; and

5. Auditing of participating health care providers to assure compliance with the provisions of the risk management program.

The fund shall establish a schedule of fee surcharges wh1ch 1t shall levy upon participating health care providers found to be in violation of the provisions of the risk management program. Such schedule shall be subject to approval by the department and shall provide an escalating scale of surcharges based upon the frequency and seventy of the incidents in violation of the risk management program. No health care provider shall be required to pay a surcharge if it has corrected all violations of the provisions of the risk management program and established an affirmative program to remain in compliance by the t;me 1ts next fee or assessment is due.

(h) Nonavailability of coverage.- The fund shall determine, no later than 7 days before the beginning of each fiscal year, whether the total amount of the membership fees to be charged for the fiscal year to health care provider applicants other than hospitals exceeds $5 million and whether the total amount of the membership fees to be charged to hospital applicants exceeds $12.5 million. If the total amount of the membership fees to be charged to health care provider applicants other than hospitals does not exceed $5 million, the fund shall return the membership fees collected from such providers and shall , not later than the day before the beginning of the f1scal year, not;fy all such providers, advising them that coverage will not be available from the fund. Thereafter, the fund may not issue coverage to any health care provider, including any hospital , for that fiscal year. If the total amount of the membership fees to be charged to hospital applicants for the fiscal year does not exceed $12.5 million , the fund shall return the membership fees collected from the hospitals and shall , not later than the day before the beginning of the fiscal year, not;fy such hospitals that coverage of hospitals will not be available from the fund . Thereafter, the fund may not 1ssue coverage to any hospital for that fiscal year. If the fund ceases to provide coverage to hospitals, hospitals shall cont;nue to meet the f1nancial responsibility requ;rements of subparagraph (2)(c)1., subparagraph (2)(c)2., or subparagraph (2)(c)3. An application for fund membership for a particular fiscal year does not guarantee coverage for that year, and the fund is not liable for coverage of an applicant for any fiscal year in which the fund does not provide coverage in accordance with the provisions of this paragraph .

History.-s. 15, ch. 75-9; s. 3. ch. 76- 168; s. 6, ch. 76-260; s. 4, ch. 77-64; s. 1, ch. 77-174; s. 1, ch. 77-457; s. 2, ch. 78-47; ss. 1, 2, ch. 79-178; ss. 1, 2, ch . 80-91 ; s. 1, ch. 80-328; ss. 2, 3, ch. 81 -318; ss. 1, 2, 3, ch. 82-236; s. 809(2nd), ch. 82-243; ss. 80, 81 , ch. 82-386; s. 2, ch. 82-391 ; s. 2, ch. 83-206; s. 50, ch. 83-215· ss 1 2, ch. 84- 163; s. 67 , ch. 85-62. ' · '

'Note.- Expires October 1, 1992, pursuant to s. 3, ch. 82- 236, and is scheduled for rev1ew pursuant to s. 11 .61 in advance of that date. Repealed effective October _1, 1992, by s. 809(2nd), ch. 82- 243, and scheduled for review pursuant to s. 11.61 tn advance of that date.

2Note.-Section 768.48 was repealed by s. 68, ch. 86-1 60. Note.-Former s. 627.353.

768.57 Notice before filing action for medical malpractice; presuit screening period; offers for admission of liability and for arbitration; review.-

(1) As used in this section: (a) "Claim for medical malpractice" means a claim

arising out of the rendering of, or the failure to render, medical care or services .

(b) "Self-insurer" means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.

(c) "Insurer" includes the Joint Underwriting Association .

(2) Prior to filing a claim for medical malpractice, a claimant shall notify each prospective defendant by certified mall, return receipt requested , of intent to initiate litigation for medical malpractice.

(3)(a) No suit may be filed for a period of 90 days after not1?e IS ma;led to the prospective defendant, except that th1s penod shall be 180 days if controlled by s. 768.28(6)(a). Reference to the 90-day period includes such extended period . During the 90-day period, the prospect1ve defendant 's insurer or self-insurer shall conduct a review to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation , review, and evaluation of claims during the 90-day period . This procedure shall include one or more of the following :

1. Internal review by a duly qualified claims adjust-er;

2. Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical malpractice actions, a health care provider trained in the same or similar medical specialty as the prospective defendant , and a duly qualified claims adjuster;

3.. A contractual agreement with a state or local professional soc1ety of health care providers, which maintains a medical review committee·

4. Any other simi lar proced~re which fairly and promptly evaluates the pending claim.

Each insurer or self-insurer shall investigate the claim in good faith , and both the claimant and prospective defendant shall cooperate with the insurer in good faith . If the 1nsurer requires, a claimant shall appear before a pretnal screemng panel or before a medical review committee and shall submit to a physical examination, if reqUired . Unreasonable failure of any party to comply with th1s sect;on JUStifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screemng procedure if done without intentional fraud .

(b) At or before the end of the 90 days, the insurer or self-Insurer shall provide the claimant with a response:

1. Rejecting the claim; 2. Making a settlement offer; or 3_. Making an offer of admission of liability and for

arbltrat1on on the 1ssue of damages. This offer may be made contingent upon a limit of general damages.

(c) The response shall be delivered to the claimant if not represented by counsel or to the claimant's attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall

1510


be deemed a final rejection of the claim for purposes of this section .

(d) Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:

1. The exact nature of the response under para-graph (b).

2. The exact terms of any settlement offer, or ad-mission of liability and offer of arbitration on damages.

3. The legal and financial consequences of accept-ance or rejection of any settlement offer, or admission of liability, including the provisions of this section.

4. An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant 's action.

5. An estimation of the costs and attorney's fees of proceeding through trial.

1(4) The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11 . However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.

(5) No statement, discussion, written document, report, or other work product generated by the presuit screening process is discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process.

(6) Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.

(7) If a prospective defendant makes an offer to admit liability and for arbitration on the issue of damages, the claimant has 50 days from the date of receipt of the offer to accept or reject it. The claimant shall respond in writing to the insurer or self-insurer by certified mail, return receipt requested. If the claimant rejects the offer, he may then file suit. Acceptance of the offer of admission of liability and for arbitration waives recourse to any other remedy by the parties, and the claimant 's written acceptance of the offer shall so state.

(a) If rejected, the offer to admit liability and for arbitration on damages is not admissible in any subsequent litigation . Upon rejection of the offer to admit liability and for arbitration, the claimant has 60 days or the remainder of the period of the statute of limitations, whichever period is greater, in which to file suit.

(b) If the offer to admit liability and for arbitration on damages is accepted, the parties have 30 days from the date of acceptance to settle the amount of damages. If the parties have not reached agreement after 30 days, they shall proceed to binding arbitration to determine the amount of damages as follows:

1. Each party shall identify his arbitrator to the op-posing party not later than 35 days after the date of acceptance.

2. The two arbitrators shall , within 1 week after they are notified of their appointment, agree upon a third arbitrator . If they cannot agree on a third arbitrator, selection of the third arbitrator shall be in accordance with chapter 682.

3. Not later than 30 days after the selection of a third arbitrator, the parties shall file written arguments with each arbitrator and with each other indicating total damages.

4. Unless otherwise determined by the arbitration panel , within 10 days after the receipt of such arguments, unless the parties have agreed to a settlement, there shall be a 1-day hearing , at which formal rules of evidence and the rules of civil procedure shall not apply, during which each party shall present evidence as to damages . Each party shall identify the total dollar amount which he feels should be awarded.

5. No later than 2 weeks after the hearing, the arbi-trators shall notify the parties of their determination of the total award. The court shall have jurisdiction to enforce any award or agreement for periodic payment of future damages.

(8) If there is more than one prospective defendant, the claimant shall provide the notice of claim and follow the procedures in this section for each defendant. If an offer to admit liability and for arbitration is accepted , the procedures shall be initiated separately for each defendant, unless multiple offers are made by more than one prospective defendant and are accepted and the parties agree to consolidated arbitration. Any agreement for consolidated arbitration shall be filed with the court. No offer by any prospective defendant to admit liability and for arbitration is admissible in any civil action .

(9) To the extent not inconsistent with this part, the provisions of chapter 682, the Florida Arbitration Code, shall be applicable to such proceedings.

(1 0) This section shall apply to any cause of action with respect to which suit has not been filed prior to October 1, 1985.

History.-s. 14, ch. 85-175; s. 9, ch. 86-287. 'Note.-As amended by s. 9, ch. 86-287; s. 16, ch. 86-287, provides in pertinent

part that -the amendment to s. 768.57(4) . . provided in this act shall operate retroactively to October 1, 1985.'

1768.575 Court-ordered arbitration.-(1) In an action for recovery of damages based on

the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in 2s. 768.50(2), the court may require, upon motion by either party, that the claim be submitted to nonbinding arbitration . Within 10 days after the court determines the matter will be submitted to arbitration, the court shall submit to the attorneys for each party the appropriate list of arbitrators prepared pursuant to subsection (2) and shall notify the attorneys of the date by which their selection of an arbitrator must be received by the court.

(2)(a) The chief judge of the judicial circuit shall prepare three lists of prospective arbitrators. A claimant 's list shall consist of attorneys with experience in handling negligence actions who principally represent plaintiff"

1511


and who are eligible and qualified to serve as arbitrators. A defendant's list shall consist of health care practitioners, and attorneys who principally handle the defense of negligence actions, who are eligible and qualified to serve as arbitrators. A third list shall consist of attorneys who are experienced in trial matters but who do not devote a majority of their practice either to the defense or to the representation of plaintiffs in medical negligence matters. The chief judge shall appoint an advisory committee made up of equal numbers of at least three members of the defense bar and three members of the plaintiff's bar, which shall approve the qualifications of the persons on the claimant's list and the persons on the defendant 's list. The advisory committee shall assist the chief judge in screening applicants and aiding in the formulation and application of standards for selection of arbitrators. Each committee shall meet at least once a year.

(b) A person may be certified to serve as an attorney arbitrator if he has been a member of The Florida Bar for at least 5 years and the chief judge determines that he is competent to serve as an arbitrator. A person may be certified as a health care practitioner arbitrator if he has been licensed to practice his profession in this state for at least 5 years and the chief judge determines that he is competent to serve as an arbitrator. Current lists of all persons certified as arbitrators shall be maintained in the office of the clerk of the circuit court and shall be open to public inspection. An attorney may not be disqualified from appearing and acting as counsel in a case pending before the court because he is serving as an arbitrator in another case.

(c) The plaintiff or plaintiffs shall select one arbitrator from the claimant's list and the defendant or defendants shall select one arbitrator from the defendant 's list, and each shall notify the chief judge of such selection. If a party does not select his arbitrator within 20 days, the party's right to select an arbitrator is waived and the chief judge shall proceed with the selection of an arbitrator from the appropriate list. The two arbitrators selected shall , within 10 days after their selection , select a third arbitrator from the third list. If the arbitrators have not selected the third arbitrator within such 1 0-day period, the chief judge shall submit three names from the third list to the two arbitrators. Each arbitrator shall strike one name from the list, and the person whose name remains shall be the third arbitrator. No person may serve as an arbitrator in any arbitration in which he has a financial or personal interest. The third arbitrator shall disclose any circumstances likely to create a presumption of bias which might disqualify him as an impartial arbitrator. Either party may advise the chief judge why an arbitrator should be disqualified from serving. If the third arbitrator resigns, is disqualified , or is unable to perform his duties, the chief judge shall appoint a replacement. If an arbitrator selected by one of the parties is unable to serve, that party shall select a replacement arbitrator, unless he has waived such right, in which case the replacement shall be selected by the chief judge. The chief judge shall designate one panel member as chairman .

(3)(a) Immediately upon the selection of the arbitrators, the clerk of the circuit court shall communicate with the parties and the arbitrators in an effort to ascertain

a mutually convenient date for a hearing and shall then schedule and give notice of the date and time of the arbitration hearing . The hearing shall be scheduled within 60 days after the date of the selection and designation of the arbitrators, provided that there has been at least 20 days notice to the parties. Thereafter, the chief judge may for good cause shown grant a continuance of the hearing, provided that the hearing is rescheduled within 90 days after the date of the selection and designation of the arbitrators.

(b) The panel shall consider all relevant evidence and decide the issues of liability, amount of damages, and apportionment of responsibility among the parties. Punitive damages may not be awarded by the arbitration panel.

(c) The arbitration hearing may proceed in the absence of a party who, after due notice, fails to be present, but an award of damages shall not be based solely on the absence of a party.

(d) At least 10 days prior to the date of the arbitration hearing , each party shall furnish every other party with a list of witnesses, if any, and copies or photographs of all exhibits to be offered at the hearing . The arbitrators may refuse to hear any witness or to consider any exhibit which has not been disclosed.

(e) The hearing shall be conducted informally. The Florida Rules of Evidence shall be a guide, but shall not be binding. It is contemplated that the presentation of testimony shall be kept to a minimum and that cases shall be presented to the arbitrators primarily through the statements and arguments of counsel.

(f) The arbitrators may receive and consider the evidence of witnesses by affidavit, but shall give 3that evidence only such weight as the arbitrators deem it is entitled to after consideration of any objections made to its admission.

(g) Any party may have a recording and transcript of the arbitration hearing made at his own expense.

(h) The members of the arbitration panel shall be paid $100 each for each day or portion of a day of service on the arbitration panel. The court shall assess each party equally for such payments.

(i) No member of the arbitration panel shall be liable in damages for any action taken or recommendation made by such member in the performance of his duties as a member of the arbitration panel.

(j) The decision of the arbitrators shall be rendered promptly and not later than 30 days after the date of the close of the hearings. The award of the arbitrators shall be immediately provided in writing to the parties. The award shall state the result reached by arbitrators without necessity of factual findings or legal conclusions. A majority determination shall control the award.

(4) The decision of the arbitration panel shall not be binding. If all parties accept the decision of the arbitration panel , that decision shall be deemed a settlement of the case and it shall be dismissed with prejudice. After the arbitration award is rendered, any party may demand a trial de novo in the circuit court by filing with the clerk of the circuit court and all parties such notice as is required by rules adopted by the Supreme Court.

(5) At the trial de novo, the court shall not admit evidence that there has been an arbitration proceeding , the

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nature or the amount of the award, or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used fcir the purposes otherwise permitted by the Florida Rules of Evidence or the Florida Rules of Civil Procedure. The trial on the merits shall be conducted without any reference to insurance, insurance coverage, or joinder of the insurer as codefendant in the suit. Panel members may not be called to testify as to the merits of the case.

(6) The Supreme Court may adopt rules to supplement the provisions of this section .

(7) This section shall apply only to actions filed at least 90 days after October 1, 1985.

History.-ss. 15, 49, ch . 85-175; s. 4, ch. 86-286; s. 10, ch. 86-287. 'Note.- This section was created by s. 15, ch . 85-175; s. 17, ch. 85-175, also cre

ated as. 768.575, which was renumbered by the reviser as s. 768.595. Section 49, ch. 85-175, as amended by s. 4, ch. 86-286, provides, in pertinent part, that "( s]ection 768.575 . . as created by this act . . . is repealed on October 1, 1968, and shall be reviewed by the Legislature prior to that date."

•Note.-Section 768.50 was repealed by s. 68, ch. 86-160. 3Note.- The words Mthat evidence~ were substituted for the word ~w by the editors .

768.58 Mandatory settlement conference in medical malpractice actions.-

(1) In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract , the court shall require a settlement conference at least 3 weeks before the date set for trial.

(2) Attorneys who will conduct the trial, parties , and persons with authority to settle shall attend the settle· ment conference held before the court unless excused by the court for good cause.

History.-s. 19, ch. 85-175; s. ll , ch. 86-287.

1768.595 Attorney's fees in medical malpractice actions.-

(1) In medical negligence cases, no attorney shall enter into an agreement for, charge, or collect an illegal or excessive fee .

(2) Upon request by a client , a court of competent jurisdiction shall review any fee agreement to determine whether it is an illegal or excessive fee.

(3) In determining whether a fee is illegal or excessive, the court shall consider, after a review of all the pertinent facts , the following factors as guides:

(a) The costs incurred or advanced by the attorney in representing the client.

(b) The time and labor required . (c) The novelty and difficulty of the questions in

volved . (d) The skill requisite to perform the legal service

properly. (e) The likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude other employment by the attorney.

(f) The fee customarily charged in the locality for similar legal services.

(g) The amount involved in the controversy and the benefits resulting to the client.

(h) The time limitations imposed by the client or by the circumstances .

(i) The nature and length of the professional relationship with the client.

(j) The experience, reputation , and ability of the attorney or attorneys performing the services.

(k) Whether the fee is fixed or contingent. (1) The contingency or the certainty of the compen

sation. (4) Each attorney or law firm sharing in a fee shall be

legally liable to the claimant for any professional malpractice of any other attorney or law firm sharing in the fee to the same extent as if they were partners. No attar· ney shall share in any fee unless the attorney shall be available to the claimant for consultation concerning the matter. No attorney or any other person shall receive any fee merely for referring a claimant to another attorney for representation . The terms for sharing of any fee shall be disclosed to and approved by the client in a written document signed by the client and all attorneys or law firms sharing in the fee . The court shall inquire into the division of fees 2among attorneys and shall have the power to modify the division of fees between attorneys.

(5) All contingent fee contracts shall be in writing signed by the claimant, and a copy of the contract shall be furnished to the client.

(6) A copy of this section shall be furnished to and fully explained to the client at the time of entering into any contingent fee contract. ·

(?)(a) The Legislature recognizes that the contingent attorney 's fee system provides a method by which the citizens of this state are able to seek access to the courts as guaranteed by Art. I, s. 21 of the State Constitution . Additionally, the Legislature recognizes that the Supreme Court of this state has the jurisdiction and authority to adopt rules for the practice of law before all Florida courts , including the regulation of attorney 's fees . Until such time as the Supreme Court adopts guidelines, the following schedule shall be presumed reasonable and not excessive. For recovery of damages up to $2 million :

1. Fifteen percent of the recovery if the claim is re-solved through the acceptance of an offer of settlement made within the presuit period as set forth in s. 768.57;

2. Twenty percent of the recovery if the claim is re-solved after initiating the arbitration provisions of s. 768.57 or prior to suit being filed except as otherwise provided in subparagraph 1 . ;

3. Twenty-five percent of the recovery if the claim is settled within 90 days of suit being filed;

4. Thirty percent of the recovery if the claim is set-tled more than 90 days after suit is filed and prior to or during the course of mandatory settlement conference as required by s. 768.58 or where all defendants adm1t liability and request trial on the issue of damages;

5. Thirty-five percent of the recovery if the claim is settled prior to the completion of the swearing of the jury;

6. Forty percent of the recovery if the claim is set-tled or judgment is satisfied prior to filing of the notice of appeal;

7. Forty-five percent of the recovery after notice of appeal is filed or post-judgment relief or action is required for recovery on the judgment.

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For those amounts of a recovery in excess of $2 million, a contingency fee of 15 percent shall be presumed reasonable and not excessive.

(b) It is the intent of the Legislature that fees be fair and reasonable to allow representation of the public in medical malpractice cases. Should the Supreme Court determine that the above fee schedule is inadequate or excessive, it is the intent of the Legislature that the Supreme Court adopt such fee schedule as will be reasonable to assure proper representation, and such fee schedule shall supersede the provisions hereof.

(8) The provisions of this section shall take effect July 1 , 1986, and shall expire on October 1, 1988.

Hlstory.-ss. 17, 49, ch. 85-175. 1Note.-This section was created by s. 17, ch. 85-175, ass. 768.575, which num

ber was changed by the reviser to s. 768.595 because of the preceding creation of s. 768.575 ins. 15, ch. 85-175. Section 49, ch. 85-175, provides that "[s]ection 768.575 ... as created by this act ... is repealed on October 1, 1988, and shall be reviewed by the Legislature pursuant to s. 11 .61 . •

2Note.-The word "among" was substituted for "between" by the editors.

768.60 Liability of health care facilities.-(1) All health care facilities, including hospitals and

ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties. These duties shall include, but not be limited to:

(a) The adoption of written procedures for the selection of staff members and a periodic review of the medical care and treatment rendered to patients by each member of the medical staff;

(b) The adoption of a comprehensive risk management program which fully complies with the substantive requirements of s. 395.041 as appropriate to such hospital's size, location, scope of services, physical configuration, and similar relevant factors ;

(c) The initiation and diligent administration of the medical review and risk management processes established in paragraphs (a) and (b) including the supervision of the medical staff and hospital personnel to the extent necessary to ensure that such medical review and risk management processes are being diligently carried out.

Each such facility shall be liable for a failure to exercise due care in fulfilling one or more of these duties when such failure is a proximate cause of injury to a patient.

(2) Every hospital licensed under chapter 395 may carry liability insurance or adequately insure itself in an amount of not less than $1 .5 million per claim, $5 million annual aggregate to cover all medical injuries to patients resulting from negligent acts or omissions on the part of those members of its medical staff who elect to be covered thereby in furtherance of the requirements of ss. 458.320 and 459.0085. Any insurer authorized to write casualty insurance may make available, but shall not be required to write, such coverage. The hospital may assess on an equitable and pro rata basis the following professional health care providers for a portion of the total hospital insurance cost for this coverage: physicians licensed under chapter 458, osteopaths licensed under chapter 459, podiatrists licensed under chapter 461 , dentists licensed under chapter 466, and nurses li-

censed under chapter 464. The hospital may provide for a deductible amount to be applied against any individual health care provider found liable in a law suit in tort or for breach of contract. The legislative intent in providing for the deductible to be applied to individual health care providers found negligent or in breach of contract is to instill in each individual health care provider the incentive to avoid the risk of injury to the fullest extent and ensure that the citizens of this state receive the highest quality health care obtainable.

History.-s. 23, ch. 85-175.

768.61 Engaging in unnecessary diagnostic testing; penalties.-

(1) No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests , which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition .

(2) A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413, s. 461.Q13, or s. 466.028, as applicable.

(3) Any person who prevails in a suit brought against a health care provider predicated upon a violation of this section shall recover reasonable attorney's fees and costs.

Hlstory.-s. 26, ch. 85-175; s. 71 , ch . 87-226.

768.66 Medical malpractice impact study.-(1) The Department of Insurance shall, by March 1,

1989, submit to the Legislature a report which shall include:

(a) A study utilizing the data compiled pursuant to s. 627.912 to determine the relationship of the injured person 's incurred and anticipated medical expense, wage loss, and other expenses as elements of settled claims;

(b) An analysis of increases or decreases in premiums by medical specialty, including a comparison of actual losses to estimated losses for each medical specialty utilizing data from the 3 most recent calendar years for which such data is available;

(c) The effect of basing medical malpractice premiums on implementation of exemplary and successful risk management programs; and

(d) A theoretical and experiential study of the following, utilizing any data necessary, for the purpose of determining effective means for reducing medical malpractice insurance premium rates , improving health care delivery, and improving medical provider/patient relationships:

1. Attorney's fees in medical malpractice actions, as provided in s. 768.595.

2. Itemized verdicts. 3. Structured judgments authorized by 1s. 768.51 . 4. Financial responsibility requirements of s.

458.320 and s. 459.0085. 5. Hospital liability insurance coverage authorized

by s. 768.60. 6. Internal risk management programs and other al-

ternatives provided for by s. 395.041. 7. The feasibility of the establishment of a special

risk category within the Florida Medical Malpractice

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Joint Underwriting Association which includes a premium cap on the rates paid by physicians licensed under chapter 458 and osteopaths licensed under chapter 459, equal to the greater of $5,000 or a fi xed percentage of the physician 's or osteopath 's gross income derived from the delivery of medical services, to be financed in part by a surcharge on medical malpractice premiums which shall be collected from physicians licensed under chapter 458, osteopaths licensed under chapter 459, and health care facilities licensed under chapter 395, equal to a stated percent of the gross amounts of such premium receipts .

8. Any other issues to accomplish the purposes of this act or the goals stated in this paragraph .

(2) For the purpose of implementing this section , the Department of Insurance is hereby appropriated for fiscal year 1985- 1986 the sum of $150,000 from the Insurance Commissioner 's Regulatory Trust Fund . Such funds shall be utilized to hire consultants to conduct the studies herein . The department shall coordinate, assist with , and supplement the consultant work product to complete the studies required by this section .

(3) The Department of Insurance may adopt rules necessary to obtain information from insurers if necessary to enable the department to carry out the provisions of this section . The department shall submit a preliminary report to the Legislature by March 1, 1987.

History.-s. 45, ch. 85-1 75: s. 12, ch. 86-287. 1Note_-Section 768.51 was repealed by s. 68, ch. 86-160.

768.71 768.72

768.73 768.74 768.75

768.76 768.77 768.78

768.79 768.80 768.81

PART Ill

DAMAGES

Applicability ; conflicts . Pleading in civil actions; claim for punitive dam-

ages. Punitive damages; limitation . Remittitur and additur. Optional settlement conference in certain tort

actions. Collateral sources of indemnity. Itemized verdict. Alternative methods of payment of damage

awards. Offer of judgment and demand for judgment. Determination of noneconomic damages. Comparative fault.

768.71 Applicability; conflicts.-(1) Except as otherwise specifically provided, this

part applies to any action for damages, whether in tort or in contract.

(2) This part applies only to causes of action arising on or after July 1, 1986, and does not apply to any cause of action arising before that date.

(3) If a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.

History.-s. 50, ch. 86-160.

768.72 Pleading in civil actions; claim for punitive damages.-ln any civil action, no claim for punitive damages shall be permitted unless there is a reasonable

showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted .

History.-s. 51 , ch. 86-160.

1768.73 Punitive damages; limitation.-(1 )(a) In any civil action based on negligence, strict

liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty that involves willful , wanton, or gross misconduct, the judgment for the total amount of punitive damages awarded to a claimant shall not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact , except as provided in paragraph (b). However, this subsection does not apply to any class action.

(b) If any award for punitive damages exceeds the limitation specified in paragraph (a) , the award is presumed to be excessive and the defendant shall be entitled to remittitur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.

(c) This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages that is less than three times the amount of compensatory damages.

(2) In any civil action , an award of punitive damages shall be payable as follows :

(a) Forty percent of the award shall be payable to the claimant.

(b) If the cause of action was based on personal injury or wrongful death , 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund created in s. 409.2662; otherwise, 60 percent of the award shall be payable to the General Revenue Fund .

(3) In the event that the full amount of punitive damages awarded cannot be collected , the claimant and the other recipient designated pursuant to paragraph (2)(b) shall each be entitled to a proportional share of the punitive damages collected .

(4) Claimant 's attorney 's fees, if payable from the judgment, shall , to the extent that they are based on the punitive damages, be calculated based only on the portion of the judgment payable to the claimant as provided in subsection (2) . Nothing herein shall be interpreted as limiting the payment of attorney 's fees based upon the award of damages other than punitive damages.

(5) The jury shall not be instructed , nor shall it be informed , as to the provisions of this section .

History.-ss. 52, 65, ch. 86-160; s. 1, ch. 87-42; s. 5, ch. 87-50. 'Note.-Expires July 1, 1990, pursuant los. 65, ch . 86-160, as amended by s. 5,

ch. 87-50, and is scheduled for review prior to that date.

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768.74 Remittitur and additur.-(1) In any action to which this part applies wherein

the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court , upon proper motion , to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

(2) If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.

(3) It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excesSive.

(4) If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, 1f any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:

(a) Whether the amount awarded is indicative of prejudice, passion , or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable ;

(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;

(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered ; and

(e) . Whether the amount awarded is supported by the ev1dence and is such that it could be adduced in a logical manner by reasonable persons.

(6) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact 1n light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion . However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judiCial system and is in the best interests of the citizens of this state.

History--s. 53, ch. 86- 160.

768.75 Optional settlement conference in certain tort actions.-

(1) In any action to which this part applies, the court may require a settlement conference to be held at least 3 weeks before the date set for trial.

(2) Attorneys who will conduct the trial , parties, and persons with authority to settle shall attend the settle-

ment conference held before the court unless excused by the court for good cause.

History.-s. 54, ch. 86- 160.

768.76 Collateral sources of indemnity.-(1) In any action to which this part applies in which

liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the cla1mant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to him, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation right exists. Such reduction shall be offset to the extent of any amount wh1ch has been paid , contributed, or forfeited by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of his injury.

(2) For purposes of this section: (a) "Collateral sources" means any payments made

to the claimant , or made on his behalf, by or pursuant to :

1. The United States Social Security Act; any feder-al , state, or local income disability act; or any other public programs providing medical expenses, disability payments , or other similar benefits.

2. Any health, sickness, or income disability insur-ance; automobile accident insurance that provides health benefits or income disability coverage; and any other s1m1lar Insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others.

3. Any contract or agreement of any group, organi-zation, partnership, or corporation to provide, pay for, or re1mburse the costs of hospital , medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

(b) Notwithstanding any other provision of this section, benefits received under the Medicaid program of Title XIX of the Social Security Act or from any medical serv1ces program administered by the Department of Health and Rehabilitative Services shall not be considered a collateral source.

(3) In the event that the fees for legal services provided to the claimant are based on a percentage of the amount of money awarded to the claimant, such percentage shall be based on the net amount of the award as reduced by the amounts of collateral sources and as increased by insurance premiums paid.

(4) A provider of collateral sources that has a right of subrogation shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider's right of reimbursement shall be limited to its pro rata share for collateral sources provided , minus its pro rata share of costs and attorney's fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider's pro rata share of those costs and attorney 's fees , the provider shall have deducted from

1516


its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney's fees.

History.-s. 55, ch. 86-160.

768.77 Itemized verdict.-(1) In any action to which this part applies in which

the trier of fact determines that liability exists on the part of the defendant, the trier of fact shall, as a part of the verdict , itemize the amounts to be awarded to the claimant into the following categories of damages:

(a) Amounts intended to compensate the claimant for economic losses;

(b) Amounts intended to compensate the claimant for noneconomic losses; and

(c) Amounts awarded to the claimant for punitive damages, if applicable.

(2) Each category of damages, other than punitive damages, shall be further itemized into amounts intended to compensate for losses which have been incurred prior to the verdict and into amounts intended to compensate for losses to be incurred in the future . Future damages itemized under paragraph (1 )(a) shall be computed before and after reduction to present value. Damages itemized under paragraph (1 )(b) or (c) shall not be reduced to present value. In itemizing amounts intended to compensate for future losses, the trier of fact shall set forth the period of years over which such amounts are intended to provide compensation.

History.- s. 56, ch. 86-160.

1768.78 Alternative methods of payment of damage awards.-

(1) In any action to which this part applies in which the trier of fact makes an award to compensate the claimant for future economic losses which exceed $250,000, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means:

(a) The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or

(b) Subject to the provisions of this section, the court shall , at the request of either party, unless the court determines that manifest injustice would result to any party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77(1 )(a) , in excess of $250,000 to be paid in whole or in part by periodic payments rather than by a lump-sum payment.

(2) In entering a judgment ordering the payment of such future damages by periodic payments, the court shall make a specific finding of the dollar amount of periodic payments which will compensate the judgment creditor for these future damages after offset for collateral sources. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value, less any attorney's fees payable from future damages in accordance with subsection (6). The period of time over which the periodic payments shall be made is the period of years determined by the trier of fact in arriving at its itemized verdict and shall not be extended if the plaintiff lives beyond the determined period. If the claimant has been awarded damages to be discharged by periodic

payments and the claimant dies prior to the termination of the period of years during which periodic payments are to be made, the remaining liability of the defendant, reduced to present value, shall be paid into the estate of the claimant in a lump sum. The court may order that the payments be equal or vary in amount, depending upon the need of the claimant.

(3) As a condition to authorizing periodic payments of future damages, the court shall require the defendant to post a bond or security or otherwise to assure full payment of these damages awarded by the judgment. A bond is not adequate unless it is written by a company authorized to do business in this state and is rated A+ by Best 's. If the defendant is unable to adequately assure full payment of the damages, the court shall order that all damages be paid to the claimant in a lump sum pursuant to the verdict. No bond may be canceled or be subject to cancellation unless at least 60 days ' advance written notice is filed with the court and the judgment creditor . Upon termination of periodic payments, the court shall order the return of the security, or so much as remains , to the judgment debtor.

(4)(a) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to timely make the required periodic payments , the court shall :

1. Order that all remaining amounts of the award be paid by lump sum within 30 days after entry of the order;

2. Order that , in addition to the required periodic payments , the judgment debtor pay the claimant all damages caused by the failure to timely make periodic payments, including court costs and attorney's fees ; or

3. Enter other orders or sanctions as appropriate to protect the judgment creditor.

(b) If it appears that the judgment debtor may be insolvent or that there is a substantial risk that the judgment debtor may not have the financial responsibility to pay all amounts due and owing the judgment creditor, the court may:

1. Order additional security ; 2. Order that the balance of payments due be

placed in trust for the benefit of the claimant ; 3. Order that all remaining amounts of the award be

paid by lump sum within 30 days after entry of the order; or

4. Order such other protection as may be neces-sary to assure the payment of the remaining balance of the judgment.

(5) The judgment providing for payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Periodic payments shall be subject to modification only as specified in this section.

(6) Claimant 's attorney 's fee , if payable from the judgment, shall be based upon the total judgment, adding all amounts awarded for past and future damages. The attorney 's fee shall be paid from past and future damages in the same proportion . If a claimant has agreed to pay his attorney's fees on a contingency fee basis, the claimant shall be responsible for paying the agreed percentage calculated solely on the basis of that

1517


portion of the award not subject to periodic payments. The remaining unpaid portion of the attorney's fees shall be paid in a lump sum by the defendant, who shall receive credit against future payments for this amount. However, the credit against each future payment is limited to an amount equal to the contingency fee percentage of each periodic payment. Any provision of this subsection may be modified by the agreement of all interested parties .

(7) Nothing in this section shall preclude any other method of payment of awards, if such method is consented to by the parties.

History.-ss. 57, 65, ch. 86-t60; s. 5, ch . 87-50. 'Note.-Expires July t , t990, pursuant to s. 65, ch. 86-t60, as amended by s. 5,

ch. 87-50, and is scheduled for review prior to that date.

768.79 Offer of judgment and demand for judgment.-

(1 )(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred from the date of filing of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award . Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation , except for pursuing the penalties of this section .

(b) Any offer or demand for judgment made pursuant to this section shall not be made until 60 days after filing of the suit , and may not be accepted later than 10 days before the date of the trial.

(2)(a) If a party is entitled to costs and fees pursuant to the provisions of subsection (1), the court may, in its discretion, determine that an offer of judgment was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.

(b) When determining the reasonablenesss of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors

1. The then apparent merit or lack of merit in the claim that was subject to the offer.

2. The number and nature of offers made by the parties.

3. The closeness of questions of fact and law at is-sue.

4. Whether the offeror had unreasonably refused to furnish information necessary to evaluate the reasonableness of the offer.

5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.

6. The amount of the additional delay cost and ex-pense that the offeror reasonably would be expected to incur if the litigation should be prolonged.

History.-s. 58, ch. 86-t 60.

1768.80 Determination of noneconomic damages.ln any action to which this part applies, damages for noneconomic losses to compensate for pain and suffering , inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonpecuniary damages may be awarded to each person entitled thereto. Such damages may not exceed $450,000.

History.-ss. 59, 65, ch. 86-t60; s. 5, ch. 87-50. 'Note.-Expires July t , t990, pursuant to s. 65, ch. 86-t60, as amended by s. 5,

ch . 87-50, and is scheduled for review prior to that date.

1768.81 Comparative fault.-(1) DEFINITION.-As used in this section "economic

damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead , and profit ; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.

(2) EFFECT OF CONTRIBUTORY FAUL T.-ln an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded 2as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery .

(3) APPORTIONMENT OF DAMAGES.-In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant , the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

(4) APPLICABILITY.-(a) This section applies to negligence cases . For

purposes of this section , "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability , professional malpractice whether couched in terms of contract or tort , or breach of warranty and like theories . In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.

(b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895.

(5) APPLICABILITY OF JOINT AND SEVERAL LIABILITY.-Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all ac-

1518


tions in which the total amount of damages does not exceed $25,000.

Hlstory.-ss. 60, 65, ch . 86-160; s. 5, ch. 87-50.

1Note.-Expires July 1, 1990, pursuant to s. 65, ch. 86-160, as amended by s. 5, ch. 87-50, and is scheduled for review prior to that date. •Note.-The word ·as· was substituted for the word ·an· by the editors.

1519

Ch. 769 HAZARDOUS OCCUPATIONS F.S. 1987

CHAPTER 769

HAZARDOUS OCCUPATIONS

769.01 769.02

769.03

769.04 769.05

769.06

Employers affected by fellow servant act. Liability of certain persons and corporations for

injuries from negligence of fellow servants. Recovery for injuries where employee and em

ployer both at fault; damages; negligence of fellow servant.

Doctrine of "assumption of risk" abrogated. Proceeds of recovery for injuries exempt from

garnishment and execution. Contracts limiting liability invalid.

769.01 Employers affected by fellow servant actThis chapter shall apply to persons engaged in the following hazardous occupations in this state; namely, railroading, operating street railways , generating and selling electricity, telegraph and telephone business, express business, blasting and dynamiting, operating automobiles for public use, boating, when boat is propelled by steam, gas or electricity.

History.-s. 1, ch. 6521 , 1913; RGS 4971 ; CGL 7058. cf.-ch. 440 Workers ' Compensation Law.

769.02 Liability of certain persons and corporations for injuries from negligence of fellow servants.The persons mentioned in s. 769.01 shall be liable in damages for injuries inflicted upon their agents and employees, and for the death of their agents and employees caused by the negligence of such persons, their agents and servants, unless such persons shall make it appear that they, their agents and servants have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against such persons.

History.-s. 2, ch. 6521 , 1913; RGS 4972; CGL 7059.

769.03 Recovery for injuries where employee and employer both at fault; damages; negligence of fellow servant.-The persons mentioned in s. 769.01 shall not be liable in damages for injuries to their agents and employees, or for the death of such agents and employees,

where same is done by their consent, or is caused by their own negligence. If the employees or agents injured or killed, and the persons mentioned ins. 769.01, or their agents and employees are both at fault, there may be a recovery, but the amount of the recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant; provided, that damages shall not be recovered for injuries to an employee injured in part through his own negligence and in part through the negligence of another employee, when both of such employees are fellow servants, where the former and latter are jointly engaged in performing the act causing the injury and the employer is guilty of no negligence contributing to such injury.

Hlatory.-s. 3, ch. 6521 , 1913; RGS 4973; CGL 7060.

769.04 Doctrine of "assumption of risk" abrogated. -The doctrine of "assumption of risk" shall not obtain in any case arising under the provisions of this chapter, where the injury or death was attributable to the negligence of the employer, his agents or servants.

Hiatory.-s. 4, ch. 6521 , 1913; RGS 4974; CGL 7061 .

769.05 Proceeds of recovery for injuries exempt from garnishment and execution.-Writs of garnishment, execution or other processes, shall not issue out of any court to reach any money due or likely to become due as damages under the provisions of this chapter.

Hlstory.-s. 5, ch . 6521 , 1913; RGS 4975; CGL 7062.

769.06 Contracts limiting liability invalid.-Any contract, contrivance or device whatever, having the effect to relieve or exempt the persons mentioned in s. 769.01 from the liability prescribed by this chapter shall be illegal and void .

History.-s. 6, ch . 6521 , 1913; RGS 4976; CGL 7063.

1520

F.S. 1987 CIVIL ACTIONS FOR LIBEL Ch. 770

CHAPTER 770

CIVIL ACTIONS FOR LIBEL

770.01 Notice condition precedent to action or prosecution for libel or slander.

770.02 Correction, apology, or retraction by newspaper or broadcast station.

770.Q3 Civil liability of broadcasting stations. 770.04 Civil liability of radio or television broadcasting

stations; care to prevent publication or utterance required.

770.05 Limitation of choice of venue. 770.06 Adverse judgment in any jurisdiction a bar to

additional action. 770.07 Cause of action, time of accrual. 770.08 Limitation on recovery of damages.

770.01 Notice condition precedent to action or prosecution for libel or slander.-Before any civil action is brought for publication or broadcast, in a newspaper, periodical , or other medium, of a libel or slander, the plaintiff shall , at least 5 days before instituting such action , serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he alleges to be false and defamatory.

History.-s. 1, ch. 16070, 1933; CGL 1936 Supp. 7064(1); s. 1, ch. 76-123. cf.-s. 836.07 Criminal prosecution for libel.

770.02 Correction, apology, or retraction by newspaper or broadcast station.-

(1) If it appears upon the trial that said article or broadcast was published in good faith ; that its fals ity was due to an honest mistake of the facts; that there were reasonable grounds for believing that the statements in said article or broadcast were true; and that, within the period of time specified in subsection (2) , a full and fair correction, apology, or retraction was, in the case of a newspaper or periodical , published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared and in as conspicuous place and type as said original article or, in the case of a broadcast, the correction , apology, or retraction was broadcast at a comparable time, then the plaintiff in such case shall recover only actual damages.

(2) Full and fair correction , apology, or retraction shall be made:

(a) In the case of a broadcast or a daily or weekly newspaper or periodical, within 10 days after service of notice;

(b) In the case of a newspaper or periodical published semimonthly, within 20 days after service of notice;

(c) In the case of a newspaper or periodical published monthly, within 45 days after service of notice; and

(d) In the case of a newspaper or periodical published less frequently than monthly, in the next issue, provided notice is served no later than 45 days prior to such publication .

History.-s 2, ch. 16070, 1933; CGL 1936 Supp. 7064(2); s. 1, ch. 76- 123; s. 233, ch. 77-104; s. 1, ch. 80-34. cf.-s. 836.08 Criminal provision .

770.03 Civil liability of broadcasting stations.-The owner, lessee, licensee, or operator of a broadcasting station shall have the right, except when prohibited by federal law or regulation, but shall not be compelled, to require the submission of a written copy of any statement intended to be broadcast over such station 24 hours before the time of the intended broadcast thereof. When such owner, lessee, licensee, or operator has so required the submission of such copy, such owner, lessee, licensee, or operator shall not be liable in damages for any libelous or slanderous utterance made by or for the person or party submitting a copy of such proposed broadcast which is not contained in such copy. This section shall not be construed to relieve the person or party or the agents or servants of such person or party making any such libelous or slanderous utterance from liability therefor.

History.-ss. 1, 2, 3, ch. 19616, 1939; CGL 1940 Supp. 7064 Supp. 7064(4); s. 1, ch. 20869; s. 1, ch. 76-1 23.

770.04 Civil liability of radio or television broadcasting stations; care to prevent publication or utterance required.-The owner, licensee, or operator of a radio or television broadcasting station , and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a radio or television broadcast, by one other than such owner, licensee or operator, or general agent or employees thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator , general agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcasts, provided , however, the exercise of due care shall be construed to include the bona fide compliance with any federal law or the regulation of any federal regulatory agency.

History.- s. 1, ch . 23602, 1947; s. 1, ch. 25278, 1949.

770.05 Limitation of choice of venue.-No person shall have more than one choice of venue for damages for libel or slander, invasion of privacy, or any other tort founded upon any single publication , exhibition, or utterance, such as any one edition of a newspaper, book, or magazine, any one presentation to an audience, any one broadcast over radio or television, or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

History.-s. 1, ch. 67-52.

770.06 Adverse judgment in any jurisdiction a bar to additional action.-A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication or exhibition or utterance as described in s. 770.05 shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication or exhibition or utterance.


1521

Ch. 770 CIVIL ACTIONS FOR LIBEL F.S. 1987

770.07 Cause of action, time of accrual.-The cause of action for damages founded upon a single publication or exhibition or utterance, as described in s. 770.05, shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state.

Hiatory.-s. 3, ch . 67-52.

770.08 Limitation on recovery of damages.-No person shall have more than one choice of venue for damages for libel founded upon a single publication or exhibition or utterance, as described in s. 770.05, and upon his election in any one of his choices of venue, then he shall be bound to recover there all damages allowed him.

Hletory.-s. 4, ch. 67-52.

1522

F.S. 1987 ACTIONS FOR ALIENATION OF AFFECTIONS, ETC. Ch. 771

CHAPTER 771

ACTIONS FOR ALIENATION OF AFFECTIONS, CRIMINAL CONVERSATION, SEDUCTION, OR BREACH OF CONTRACT TO MARRY

771 .01 771 .04 771.05 771 .06 771.07 771 .08

Certain tort actions abolished . No act done in state to give cause of action. Unlawful to file certain causes of action . Validity of certain contracts. Penalties. Construction of law.

771.01 Certain tort actions abolished.-The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation , seduction or breach of contract to marry are hereby abolished.

History.- s 1, ch. 23138, 1945.

771.04 No act done in state to give cause of action. -No act hereafter done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this law. No contract to marry hereafter made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof.

History.-s. 4, ch. 23138, 1945.

771.05 Unlawful to file certain causes of action.lt shall hereafter be unlawful for any person , either as a party or attorney, or an agent or other person in behalf of either, to file or serve, cause to be filed or served , threaten to file or serve, or threaten to cause to be filed or served, any process or pleading , in any court of the state, setting forth or seeking to recover a sum of money upon any cause of action abolished or barred by this law, whether such cause of action arose within or without the state.

History.-s. 5, ch. 23138, 1945; s. 234, ch. 77-104.

771.06 Validity of certain contracts.-AII contracts and instruments of every kind, name, nature or description, which may hereafter be executed within this state in payment, satisfaction , settlement or compromise of any claim or cause of action abolished or barred by this law, whether such claim or cause of action arose within or without this state, are hereby declared to be contrary

to the public policy of this state and absolutely void. It shall be unlawful to cause, induce or procure any person to execute such a contract or instrument; or cause, induce or procure any person to give, pay, transfer or deliver any money or thing of value in payment, satisfaction, settlement or compromise of any such claim or cause of action ; or to receive , take, or accept any such money or thing of value as such payment, satisfaction, settlement, or compromise. It shall be unlawful to commence or cause to be commenced , either as party or attorney, or as agent or otherwise in behalf of either, in any court of this state, any proceeding or action seeking to enforce or recover upon any such contract or instrument, knowing it to be such , whether the same shall have been executed within or without this state; provided, however, that this section shall not apply to the payment, satisfaction , settlement, or compromise of any causes of action which are not abolished or barred by this law, or any contracts or instruments heretofore executed, or to the bona fide holder in due course of any negotiable instrument which may be hereafter executed.

History.-s. 6, ch. 23138, 1945.

771.07 Penalties.-Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 7, ch . 23138, 1945; s. 698, ch. 71-136.

771.08 Construction of law.-This law shall be liberally construed to effectuate the objects and purposes thereof and the public policy of the state as hereby declared . This law shall supersede all laws and parts of laws, inconsistent with this law, to the extent of such inconsistency, but in all other respects shall be deemed supplemental to such laws and parts of laws. Nothing contained in this law shall be construed as a repeal of any of the provisions of the penal law or the code of criminal procedure or of any other law of this state relating to criminal or quasi-criminal actions or proceedings.

History.- ss. 8, 9, ch. 23138, 1945.

1523

Ch. 772 CIVIL REMEDIES FOR CRIMINAL PRACTICES F.S. 1987

CHAPTER 772

CIVIL REMEDIES FOR CRIMINAL PRACTICES

772.101 772.102 772.103 772.104 772.11 772.14 772.15 772.17 772.18 772.185 772.19

Short title. Definitions. Prohibited activities. Civil cause of action. Civil remedy for theft. Estoppel of defendant. Admissibility of not guilty verdict. Limitation of actions. Cumulative remedy. Attorney's fees taxed as costs. Exemption .

772.101 Short title.-This chapter shall be known as the "Civil Remedies for Criminal Practices Act."

History.-s. 3. ch . 86-277.

772.102 Definitions.-As used in this chapter, the term:

(1) "Criminal activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:

(a) Any crime which is chargeable by indictment or information under the following provisions:

1. Section 210.18, relating to evasion of payment of cigarette taxes.

2. Section 409.325, relating to public assistance fraud .

3. Chapter 517, relating to securities transactions. 4. Section 550.24, s. 550.35, or s. 550.36, relating to

dogracing, horseracing, and jai alai frontons . 5. Section 551 .09, relating to jai alai frontons. 6. Chapter 552, relating to the manufacture, distri

bution, and use of explosives. 7. Chapter 562, relating to beverage law enforce-

ment. 8. Chapter 687, relating to interest and usurious

practices. 9. Section 721.08, s. 721 .09, or s. 721.13, relating to

real estate time-share plans. 10. Chapter 782, relating to homicide. 11 . Chapter 784, relating to assault and battery. 12. Chapter 787, relating to kidnapping. 13. Chapter 790, relating to weapons and firearms. 14. Section 796.01, s. 796.03, s. 796.04, s. 796.05, or

s. 796.07, relating to prostitution. 15. Chapter 806, relating to arson. 16. Chapter 812, relating to theft, robbery, and relat

ed crimes. 17. Chapter 815, relating to computer-related

crimes. 18. Chapter 817, relating to fraudulent practices,

false pretenses, fraud generally, and credit card crimes. 19. Section 827.071, relating to commercial sexual

exploitation of children. 20. Chapter 831, relating to forgery and counterfeit

ing. 21. Chapter 832, relating to issuance of worthless

checks and drafts. 22. Section 836.05, relating to extortion. 23. Chapter 837, relating to perjury.

24. Chapter 838, relating to bribery and misuse of public office.

25. Chapter 843, relating to obstruction of justice. 26. Section 847.011, s. 847.012, s. 847.013, s.

847.06, or s. 847.07, relating to obscene literature and profanity.

27. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s. 849.25, relating to gambling .

28. Chapter 893, relating to drug abuse prevention and control.

29. Section 914.22 1or 2s. 914.23, relating to witnesses, victims, or informants.

30. Section 918.12 1or s. 918.13, relating to tampering with jurors and evidence.

(b) Any conduct which is subject to indictment or information as a criminal offense and listed in 18 U.S.C. s. 1961 (1) (A), (B), (C), 1or (D).

(2) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted:

(a) In violation of any one of the following provisions of law:

1. Section 550.24, s. 550.35, or s. 550.36, relating to dogracing, horseracing, and jai alai frontons.

2. Section 551 .09, relating to jai alai frontons. 3. Section 687.071, relating to criminal usury, loan

sharking, and shylocking. 4. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or

s. 849.25, relating to gambling. (b) In gambling activity in violation of federal law or

in the business of lending money at a rate usurious if punishable as a crime under state or federal law.

(3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and the term includes illicit as well as licit enterprises and governmental , as well as other, entities.

(4) "Pattern of criminal activity" means engaging in at least two incidents of criminal activity that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided that the last of such incidents occurred within 5 years after a prior incident of criminal activity. For the purposes of this chapter, the term "pattern of criminal activity" shall not include two or more incidents of fraudulent conduct arising out of a single contract or transaction against one or more related persons.

(5) "Real property" means any real property or any direct or indirect interest in such real property. An interest in any lease of or mortgage upon real property shall be considered an interest in such real property.

(6) "Related persons" means, as to natural persons, persons who are related by blood within the second degree or who are married and, as to other persons, persons which are substantially under the same direction,

1524

F.S. 1987 CIVIL REMEDIES FOR CRIMINAL PRACTICES Ch. 772

ownership, or control , either directly or indirectly. History.-s. 3, ch. 86- 277.

'Note.-The word 'or' was substi tuted by the edi tors for the word 'and.' 2Note.-The reference to "s. 914.23" was substituted by the editors for reference

to "s. 918.23," subject to confirmation by legislative act, to correct the apparently un· intended and erroneous reference to s. 918.23 which does not exist and to recognize consistency of context within subparagraph 29.

772.103 Prohibited activities.-lt is unlawful for any person :

(1) Who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to , or any right , interest, or equity in, real property or in the establishment or operation of any enterprise.

(2) Through a pattern of criminal activity or through the collection of an unlawful debt, to acquire or maintain , directly or indirectly, any interest in or control of any enterprise or real property.

(3) Employed by, or associated with , any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity or the collection of an unlawful debt.

(4) To conspire or endeavor to violate any of the provisions of subsection (1 ), subsection (2) , or subsection (3) .

History.-s. 3, ch. 86-277.

772.104 Civil cause of action.-Any person who proves by clear and convincing evidence that he has been injured by reason of any violation of the provisions of s. 772.103 shall have a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts . In no event shall punitive damages be awarded under this section . The defendant shall be entitled to recover reasonable attorney's fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support. In awarding attorney's fees and costs under this section , the court shall not consider the ability of the opposing party to pay such fees and costs. Nothing under this section shall be interpreted as limiting any right to recover attorney 's fees or costs provided under other provisions of law.

History.-s. 3, ch. 86-277.

772.11 Civil remedy for theft-Any person who proves by clear and convincing evidence that he has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 or s. 812.081 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts. In no event shall punitive damages be awarded under this section. The defendant shall be entitled torecover reasonable attorney's fees and court costs in the

trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support. In awarding attorney's fees and costs under this section , the court shall not consider the ability of the opposing party to pay such fees and costs. Nothing under this section shall be interpreted as limiting any right to recover attorney's fees or costs provided under other provisions of law.

Hlstory.- s. 3, ch. 86-277.

772.14 Estoppel of defendant-A final judgment or decree rendered in favor of the state in any criminal proceeding concerning the conduct of the defendant which forms the basis for a civil cause of action under this chapter, or in any criminal proceeding under chapter 895, shall estop the defendant in any action brought pursuant to this chapter as to all matters as to which such judgment or decree would be an estoppel as if the plaintiff had been a party in th~ criminal action .

Hlstory.- s. 3, ch. 86-277.

772.15 Admissibility of not guilty verdict-A verdict or adjudication of not guilty rendered in favor of the defendant or in favor of any other person whose conduct forms the basis for a claim under this chapter shall be admissible in evidence, but shall not act as an estoppel against the plaintiff.

History.-s. 3, ch. 86-277.

772.17 Limitation of actions.-Notwithstanding any other provision of law, a civil action or proceeding under this chapter may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought or intervened in by the state or by the United States to punish , prevent, or restrain any criminal activity or criminal conduct which forms the basis for a civil action under this chapter, the running of the period of limitations prescribed by this section shall be suspended during the pendency of such prosecution , action , or proceeding and for 2 years following its termination .

History.-s. 3, ch. 86-277.

772.18 Cumulative remedy.-The application of one civil remedy under this chapter does not preclude the application of any other remedy, civil or criminal, under this chapter or any other provision of law. Civil remedies under this act are supplemental, and not mutually exclusive.

Hlstory.-s. 3, ch. 86- 277.

772.185 Attorney's fees taxed as costs.-Attorney's fees awarded under this chapter shall be taxed as costs.

Hlstory.-s. 3, ch. 86-277.

772.19 Exemption.-No damages shall be recoverable under this chapter against the state or its agencies, instrumentalities, subdivisions, or municipalities.

Hlstory.-s. 3, ch. 86- 277.

1525

TITLE XLVI CRIMES

CHAPTER 775

DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS

775.01 775.011

775.012 775.02 775.021 775.03 775.04

775.08 775.081

775.082 775.083 775.0835

775.0836

775.084

775.0845

775.0846

775.087

775.089 775.091 775.13

775.14 775.15

Common law of England. Short title; applicability to antecedent of-

fenses . General purposes. Punishment of common-law offenses. Rules of construction . Benefit of clergy. What penal acts or omissions not public of

fenses . Classes and definitions of offenses. Classifications of felonies and misdemea-

nors. Penalties. Fines. Fines; surcharges; Crimes Compensation

Trust Fund. Fines; surcharges in cases in which victim is

handicapped or elderly. Habitual felony offenders and habitual mis

demeanants; extended terms; definitions; procedure; penalties.

Wearing mask while committing offense; enhanced penalties.

Wearing bulletproof vest while committing certain offenses.

Posse.ssion or use of weapon ; aggravated battery; felony reclassification ; minimum sentence.

Restitution. Public service. Registration of convicted felons, exemp

tions; penalties. Limitation on withheld sentences. Time limitations.

775.01 Common law of England.-The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.

History.-s. 1, Nov. 6, 1829; s. 1, Feb. 10, 1832; AS 2369; GS 3194; AGS 5024; CGL 7126. cf.-s. 2.01 Common law in force.

s. 817.29 Punishment for common-law fraud or cheat.

775.011 Short title; applicability to antecedent offenses.-

(1) This act shall be known and may be cited as the "Florida Criminal Code."

(2) Except as provided in subsection (3), the code does not apply to offenses committed prior to October

1, 1975, and prosecutions for such offenses shall be governed by the prior law. For the purposes of this section, an offense was committed prior to October 1, 1975, if any of the material elements of the offense occurred prior thereto.

(3) In any case pending on or after October 1, 1975, involving an offense committed prior to such date, the provisions of the code involving any quasi-procedural matter shall govern, insofar as they are justly applicable, and the provisions of the code according a defense or mitigation or establishing a penalty shall apply only with the consent of the defendant.

Hlatory.-s. 1, ch. 74-383; s. 43, ch. 75-298; s. 484, ch. 81-259.

775.012 General purposes.-The general purposes of the provisions of the code are:

(1) To proscribe conduct that improperly causes or threatens substantial harm to individual or public interest.

(2) To give fair warning to the people of the state in understandable language of the nature of the conduct proscribed and of the sentences authorized upon conviction.

(3) To define clearly the material elements constituting an offense and the accompanying state of mind or criminal intent required for that offense.

(4) To differentiate on reasonable grounds between serious and minor offenses and to establish appropriate disposition for each.

(5) To safeguard conduct that is without fault or legitimate state interest from being condemned as criminal.

(6) To insure the public safety by deterring the commission of offenses and providing for the opportunity for rehabilitation of those convicted and for their confinement when required in the interests of public protection.

Hlstory.-s. 2, ch. 74-383; s. 1, ch. 77-174.

775.02 Punishment of common-law offenses.When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.

Hlstory.-s. 1, Nov. 6, 1829; AS 2370; GS 3195; AGS 5025; CGL 7127.

775.021 Rules of construction.-(1) The provisions of this code and offenses defined

by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused .

1526

F.S. 1987 DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS Ch. 775

(2) The provisions oi this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides.

(3) This section does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.

(4) Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt , shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively . For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

History.-s. 3. ch. 74-383; s. 1, ch . 76-66; s. 1, ch. 77-174; s. 1, ch. 83-156.

775.03 Benefit of clergy.-The doctrine of benefit of clergy shall have no operation in this state.

History.-s. 75, Feb. 10, 1832; RS 2371 ; GS 3196; RGS 5026; CGL 7128.

775.04 What penal acts or omissions not public offenses.-Acts or omissions to which a pecuniary penalty is attached, recoverable by action by a person for his own use or for the use, in whole or in part, of the state or of a county or a public body, or of a corporation, are not public offenses within the meaning of these statutes.

History.-RS 2349; GS 3173; RGS 5002; CGL 7101 .

775.08 Classes and definitions of offenses.When used in the laws of this state:

(1) The term "felony" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary. "State penitentiary" shall include state correctional facilities . A person shall be imprisoned in the state penitentiary for each sentence which, except an extended term, exceeds 1 year.

(2) The term "misdemeanor" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term "misdemeanor" shall not mean a conviction for any violation of any provision of chapter 316 or any municipal or county ordinance.

(3) The term "noncriminal violation" shall mean any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term "noncriminal violation" shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.

(4) The term "crime" shall mean a felony or misdemeanor.

History.-s. 1(11), ch. 1637. 1868; AS 2352; GS 3176; RGS 5006; CGL 7105; s. 1, ch. 71-136; s. 4, ch. 74-383; s. 1, ch . 75-298.

775.081 Classifications of felonies and misdemeanors.-

(1) Felonies are classified, for the purpose of sentence and for any other purpose specifically provided by statute, into the following categories:

(a) Capital felony; (b) Life felony; (c) Felony of the first degree; (d) Felony of the second degree; and (e) Felony of the third degree.

A capital felony and a life felony must be so designated by statute. Other felonies are of the particular degree designated by statute. Any crime declared by statute to be a felony without specification of degree is of the third degree, except that this provision shall not affect felonies punishable by life imprisonment for the first offense.

(2) Misdemeanors are classified, for the purpose of sentence and for any other purpose specifically provided by statute, into the following categories:

(a) Misdemeanor of the first degree; and (b) Misdemeanor of the second degree.

A misdemeanor is of the particular degree designated by statute. Any crime declared by statute to be a misdemeanor without specification of degree is of the second degree.

(3) This section is supplemental to, and is not to be construed to alter, the law of this state establishing and governing criminal offenses that are divided into degrees by virtue of distinctive elements comprising such offenses, regardless of whether such law is established by constitutional provision , statute, court rule, or court decision .

History.-s. 2, ch. 71-136; s. 1, ch. 72-724.

775.082 Penalties.-(1) A person who has been convicted of a capital fel

ony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.

(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1).

(3) A person who has been convicted of any other designated felony may be punished as follows :

(a) For a life felony committed prior to October 1, 1983, by a term of imprisonment for life or for a term of years not less than 30 and, for a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years;

1527

Ch. 775 DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS F.S. 1987

(b) For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment;

(c) For a felony of the second degree, by a term of imprisonment not exceeding 15 years;

(d) For a felony of the third degree, by a term of imprisonment not exceeding 5 years.

(4) A person who has been convicted of a designated misdemeanor may be sentenced as follows:

(a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year;

(b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.

(5) Any person who has been convicted of a noncriminal violation may not be sentenced to a term of imprisonment nor to any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided in chapter 316 or by ordinance of any city or county.

(6) Nothing in this section shall be construed to alter the operation of any statute of this state authorizing a trial court, in its discretion, to impose a sentence of imprisonment for an indeterminate period within minimum and maximum limits as provided by law, except as provided in subsection (1 ).

(7) This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence.

jlistory.-s. 3, ch. 71-136; ss. 1, 2, ch. 72-118; s. 2, ch. 72-724; s. 5, ch. 74-383; s. 1, ch. 77-174; s.1,ch. 83-87.

775.083 Fines.-(1) A person who has been convicted of an offense

other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082; when specifically authorized by statute, he may be sentenced to pay a fine in lieu of any punishment described in s. 775.082. A person who has been convicted of a noncriminal violation may be sentenced to pay a fine. Fines for designated crimes and for noncriminal violations shall not exceed :

(a) $15,000, when the conviction is of a life felony. (b) $10,000, when the conviction is of a felony of the

first or second degree. (c) $5,000, when the conviction is of a felony of the

third degree. (d) $1,000, when the conviction is of a misdemeanor

of the first degree. (e) $500, when the conviction is of a misdemea11or

of the second degree or a noncriminal violation . (f) Any higher amount equal to double the pecuni

ary gain derived from the offense by the offender or double the pecuniary loss suffered by the victim.

(g) Any higher amount specifically authorized by statute.

(2) If a defendant is unable to pay a fine, the court may defer payment of the fine to a date certain.

History.-s. 4, ch. 71-136; s. 6, ch. 74-383; s. 1, ch. 77-97; s. 1, ch. 77-174.

775.0835 Fines; surcharges; Crimes Compensation Trust Fund.-

(1) When any person pleads guilty or nolo contendere to, or is convicted of, any felony or misdemeanor under the laws of this state which resulted in the injury or death of another person, the court may, if it finds that the defendant has the present ability to pay the fine and finds that the impact of the fine upon the defendant's dependents will not cause such dependents to be dependent on public welfare, in addition to any other penalty, order the defendant to pay a fine, commensurate with the offense committed and with the probable impact upon the victim , but not to exceed $10,000. The fine shall be deposited in the Crimes Compensation Trust Fund .

(2) In addition to any fine , civil penalty, or other penalty provided by statute, ordinance, or other law, there shall be imposed, levied, and collected by the courts of this state the 5-percent surcharge on all fines, civil penalties, and forfeitures, as established and created in s. 960.25, which surcharge shall be deposited in the Crimes Compensation Trust Fund created by s. 960.21.

(3) The additional $20 obligation created by s. 960.20 shall be collected, and $19 of each $20 collected shall be credited to the Crimes Compensation Trust Fund, prior to any fine or surcharge authorized by this chapter.

History.-ss. 2, 3, ch. 77-452; s. 20, ch. 80-146; s. 2, ch. 83-319; s. 8, ch. 85-326.

775.0836 Fines; surcharges in cases in which victim is handicapped or elderly.-

(1) In addition to any fine prescribed by law for any criminal offense or any county or municipal ordinance, when any victim of such criminal offense or any county or municipal ordinance violation is handicapped or elderly, as defined in s. 426.002, there is hereby assessed an additional 1 0-percent surcharge on such fine, which surcharge shall be imposed by all county and circuit courts , and collected by the clerk of the court together with such fine. The surcharge shall be deposited in the Handicapped and Elderly Security Assistance Trust Fund established by s. 426.009.

(2) The surcharges imposed by this section apply only in counties containing 1housing projects as defined in this chapter.

History.-s. 5, ch. 84-250; s. 9, ch. 87-155. 1Note.-The words Mhousing projects as defined in this chapter~ appear as enact·

ed by s. 9, ch. 87-155. The term "housing project" is not defined inch. 775. But see s. 2, ch. 87-155, which revised the definition of "housing project" as used in ss. 426.001-426.009; and see the statement of substantial changes contained in related C.S. for S.B.'s 369 and 450 that the collection of surcharges "is mandated only in counties containing housing projects as defined in chapter 426, Florida Statutes."

775.084 Habitual felony offenders and habitual misdemeanants; extended terms; definitions; procedure; penalties.-

(1) As used in this act: (a) "Habitual felony offender" means a defendant for

whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:

1. The defendant has: a. Previously been convicted of a felony in this

state; b. Twice previously been convicted of a misde

meanor of the first degree in this state or of another qualified offense for which the defendant was convicted after the defendant 's 18th birthday;

1528


2. The felony for which the defendant is to be sen-tenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;

3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and

4. A conviction of a felony, misdemeanor, or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.

(b) "Habitual misdemeanant" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:

1. The defendant has at least twice previously been convicted of the same crime committed at different times after the defendant's 18th birthday;

2. The misdemeanor for which the defendant is to be sentenced was committed within 2 years of the date of the commission of the last prior crime or within 2 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as aresult of a prior conviction for a crime, whichever is later;

3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section ; and

4. A conviction of a crime necessary to the opera-tion of this section has not been set aside in any postconviction proceeding.

(c) "Qualified offense" means any offense in violation of a law of another state or of the United States that was punishable under the law of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding 1 year or that was equivalent in penalty to a misdemeanor of the first degree.

(2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.

(3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant. The procedure shall be as ·follows:

(a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as an habitual felony offender or an habitual misdemeanant.

(b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.

(c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full

rights of confrontation, cross-examination, and representation by counsel.

(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

(e) For the purpose of identification of an habitual felony offender or an habitual misdemeanant, the court shall fingerprint the defendant pursuant to s. 921.241.

(4)(a) The court, in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual felony offender as follows:

1. In the case of a felony of the first degree, for life. 2. In the case of a felony of the second degree, for

a term of years not exceeding 30. 3. In the case of a felony of the third degree, for a

term of years not exceeding 10. (b) The court, in conformity with the procedure es

tablished in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, may sentence the habitual misdemeanant as follows :

1. In the case of a misdemeanor of the first degree, for a term of years not exceeding 3.

2. In the case of a misdemeanor of the second de-gree, for a term of imprisonment not in excess of 1 year.

(c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public , sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is an habitual felony offender or an habitual misdemeanant, the court shall make that determination as provided in subsection (3) .

(d) A sentence imposed under this section shall not be increased after such imposition .

History.-s. 5, ch. 71-136; s. 7. ch. 74-383; s. 1, ch. 75-116; s. 2, ch . 75-298; s. 1, ch. 77-174.

775.0845 Wearing mask while committing offense; enhanced penalties.-The penalty for any criminal offense, other than a violation of ss. 876.12-876.15, shall be increased as provided in this section if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his identity.

(1) A misdemeanor of the second degree shall be punishable as if it were a misdemeanor of the first degree.

(2) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree.

(3) A felony of the third degree shall be punishable as if it were a felony of the second degree.

(4) A felony of the second degree shall be punishable as if it were a felony of the first degree.

History.-s. 2. ch. 81-249.

775.0846 Wearing bulletproof vest while committing certain offenses.-

(1) For the purposes of this section, the term "bulletproof vest" means a bullet-resistant soft body armor providing , as a minimum standard, the level of protec-

1529


tion known as "threat Ieveii," which shall mean at least seven layers of bullet-resistant material providing protection from three shots of 158-grain lead ammunition fired from a .38 caliber handgun at a velocity of 850 feet per second.

(2) A person is guilty of the unlawful wearing of a bulletproof vest when, acting alone or with one or more other persons and while possessing a firearm, he commits or attempts to commit any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy and, in the course of and in furtherance of any such crime, he wears a bulletproof vest.

(3) Any person who is convicted of a violation of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.-

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

(a) In the case of a felony of the first degree, to a life felony.

(b) In the case of a felony of the second degree, to a felony of the first degree.

(c) In the case of a felony of the third degree, to a felony of the second degree.

(2) Any person who is convicted of: (a) Any murder, sexual battery, robbery, burglary,

arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony , or aircraft piracy, or any attempt to commit the aforementioned crimes; or

(b) Any battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties

and who had in his possession a "firearm," as defined in s. 790.001 (6) , or "destructive device," as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended , deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.275, prior to serving such minimum sentence.

History.-s. 9, ch . 74-383; s. 1, ch. 75-7; s. 3, ch. 75-298: s. 2, ch. 76-75; s. 51 , ch. 83-215.

775.089 Restitution.-(1 )(a) In addition to any punishment, the court shall

order the defendant to make restitution to the victim for damage or loss caused directly or indirectly by the defendant's offense, unless it finds reasons not to order such restitution . Restitution may be monetary or non-

monetary restitution . The court shall make the payment of restitution a condition to probation in accordance with s. 948.03.

(b) If the court does not order restitution, or orders only partial restitution, under this section, it shall state on the record the reasons therefor.

(c) The term "victim" as used in this section and in any provision of law relating to restitution includes the aggrieved party, the aggrieved party's estate if the aggrieved party is deceased, and the aggrieved party's next of kin if the aggrieved party is deceased as a result of the offense.

(2) When an offense has resulted in bodily injury to a victim , the court may require that the defendant:

(a) Pay the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a recognized method of healing .

(b) Pay the cost of necessary physical and occupational therapy and rehabilitation .

(c) Reimburse the victim for income lost by such victim as a result of the offense.

(d) In the case of an offense which resulted in bodily injury that also resulted in the death of a victim, pay an amount equal to the cost of necessary funeral and related services.

(3)(a) The court may require that the defendant make restitution under this section within a specified period or in specified installments.

(b) The end of such period or the last such installment shall not be later than:

1. The end of the period of probation, if probation is ordered;

2. Five years after the end of the term of imprison-ment imposed, if the court does not order probation; or

3. Five years after the date of sentencing in any oth-er case.

(c) If not otherwise provided by the court under this subsection, restitution must be made immediately.

(4) If a defendant is placed on probation or paroled, any restitution ordered under this section shall be a condition of such probation or parole. The court may revoke probation , and the Parole and Probation Commission may revoke parole, if the defendant fails to comply with such order.

(5) An order of restitution may be enforced by the state, or a victim named in the order to receive the restitution, in the same manner as a judgment in a civil action.

(6) The court , in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and his dependents, and such other factors which it deems appropriate.

(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the financial resources of the defendant

1530


and the financial needs of the defendant and his dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.

(8) The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding . An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.

(9) When a corporation or unincorporated association is ordered to make restitution, the person authorized to make disbursements from the assets of such corporation or association shall pay restitution from such assets, and such person may be held in contempt for failure to make such restitution.

( 1 0) Any default in payment of restitution may be collected by any means authorized by law for enforcement of a judgment.

(11) The court may order the clerk of the court to collect and dispense restitution payments in any case.

History.-s. 1, ch. 77-150: s. 288, ch . 79-400: s. 5, ch. 84-363. cf.-s. 947.181 Victim restitution.

s. 948.032 Condition of probation: restitution.

775.091 Public service.-ln addition to any punishment, the court may order the defendant to perform a specified public service.

History.-s. 2, ch. 77-150.

775.13 Registration of convicted felons, exemptions; penalties.-

( 1) Any person who has been convicted of a felony in any court of this state shall, within 48 hours after entering any county in this state, register with the sheriff of said county, be fingerprinted and photographed, and list the crime for which convicted, place of conviction, sentence imposed, if any, name, aliases, if any, address, and occupation.

(2) Any person who has been convicted of a crime in any federal court or in any court of a state other than Florida, or of any foreign state or country, which crime if committed in Florida would be a felony, shall forthwith within 48 hours after entering any county in this state register with the sheriff of said county in the same manner as provided for in subsection (1 ).

(3) Any person who is presently within any county of the state as of the effective date of this section shall likewise be required to register with the sheriff of such county within 30 days after the effective date of this section , if such person would be required to register under the terms of subsections (1) or (2), if he or she were entering such county.

(4) In lieu of registering with the sheriffs of the several counties of the state as required by this section, such registration may be made with the Department of Law Enforcement, and shall be subject to the same terms and conditions as required for registration with the several sheriffs of the state. Any person so registering with the Department of Law Enforcement shall not be re-

quired to make further registration in any county in the state.

(5) The provisions of this law do not apply to any person:

(a) Who has had his civil rights restored; (b) Who has received a full pardon for the offense for

which convicted; (c) Whose conviction of a felony was more than 10

years prior to the time provided for registration under the provisions of this law and who has been lawfully released from incarceration under a felony conviction and sentence for more than 5 years prior to such time for registration, unless such person is a fugitive from justice on a felony charge;

(d) Who is a parolee or probationer under the supervision of the Department of Corrections or is a probationer under the supervision of any county probation officer of the state or who has been lawfully discharged from such parole or probation; or

(e) Who is a parolee or probationer under the supervision of the United States Parole Commission if the commission knows of and consents to the presence of such person in Florida or is a probationer under the supervision of any federal probation officer in the state or who has been lawfully discharged from such parole or probation.

(6) Failure of any such convicted felon to comply with this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(7) All laws and parts of laws in conflict herewith are hereby repealed, provided that nothing in this section shall be construed to affect any law of this state relating to registration of criminals where the penalties are in excess of those imposed by this section .

History.-ss. 1, 2, 3, 4, 5, 6, 7, ch. 57-19: s. 1, ch. 57-371 : s. 1, ch. 63-191 : s. 1, ch . 65-453: s. 3, ch. 67-2207: ss. 20, 33, 35, ch. 69-106: s. 699, ch. 71-136: s. 11 , ch. 77-120: s. 1, ch. 77-174: s. 18, ch. 79-3: s. 21 , ch. 79-8: s. 161 , ch. 83-216.

775.14 Limitation on withheld sentences.-Any person receiving a withheld sentence upon conviction for a criminal offense, and such withheld sentence has not been altered for a period of 5 years, shall not thereafter be sentenced for the conviction of the same crime for which sentence was originally withheld.

History.-s. 1, ch. 57-284 .

775.15 Time limitations.-(1) A prosecution for a capital or life felony may be

commenced at any time. In the event that the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court , all crimes designated as capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimes may be commenced at any time.

(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b) A prosecution for any other felony must be commenced within 3 years after it is committed.

1531


(c) A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed .

(d) A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed .

(e) A prosecution for a violation of chapter 517 must be commenced within 5 years after the violation is committed.

(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

(a) Any offense, a material element of which is either fraud or a breach of fiduciary obligation , within 1 year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

(b) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he leaves public office or employment, or during any time permitted by any other part of this section , whichever time is greater.

(4) An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated . Time starts to run on the day after the offense is committed.

(5) A prosecution is commenced when either an indictment or information is filed , provided the capias, summons, or other process issued on such indictment

or information is executed without unreasonable delay. In determining what is reasonable , inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered . If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.

(6) The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

(7) If the victim of a violation of s. 794.011 , s. 794.05, s. 800.04, or s. 826.04 is under the age of 16, the applicable period of limitation , if any, does not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier . Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred. This subsection applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31 , 1984.

Hletory.-s. 78, Feb. 10, 1832; s. 1, ch. 4915, 1901 ; AS 2357; GS 3181 , 3182; AGS 5011 , 5012; CGL 7113, 711 4; s. 1, ch. 16962, 1935; s. 10, ch. 26484, 1951 ; s. 109, ch. 70-339; s. 10, ch . 74- 383; s. 1, ch. 76-275; s. 1, ch. 77-174; s. 12, ch. 78-435; s. 6, ch. 84-86; s. 1, ch. 84-550; s. 10, ch. 85-63.

Note.-See former ss. 932.05, 932.06, 915.03, 932.465.

1532

F.S. 1987 JUSTIFIABLE USE OF FORCE Ch. 776

CHAPTER 776

JUSTIFIABLE USE OF FORCE

776.012 776.031 776.041 776.05

776.051

776.06 776.07 776.08 776.085

Use of force in defense of person . Use of force in defense of others. Use of force by aggressor. Law enforcement officers; use of force in mak

ing an arrest. Use of force in resisting or making an arrest;

prohibition. Deadly force. Use of force to prevent escape. Forcible felony. Defense to civil action for damages; party

convicted of forcible or attempted forcible felony.

776.012 Use of force in defense of person.-A person is justified in the use of force, except deadly force , against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.

History.-s. 13, ch. 74-383.

776.031 Use of force in defense of others.-A person is justified in the use of force , except deadly force , against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.

History.-s. 13, ch. 74-383.

776.041 Use of force by aggressor.-The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself, unless:

(a) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith , he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Hlstory.-s. 13, ch. 74-383.

776.05 Law enforcement officers; use of force in making an arrest.-A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force :

(1) Which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest ;

(2) When necessarily committed in retaking felons who have escaped ; or

(3) When necessarily committed in arresting felons fleeing from justice and :

(a) The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others ; or

(b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.

However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and , when feasible, some warning had been given.

History.-s. 13, ch . 74-383; s. 1, ch. 75-64; s. 1, ch. 87-147.

776.051 Use of force in resisting or making an arrest; prohibition.-

(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

(2) A law enforcement officer, or any person whom he has summoned or directed to assist him, is not justified in the use of force if the arrest is unlawful and known by him to be unlawful.

History.-s. 13, ch . 74-383.

776.06 Deadly force.-"Deadly force" means force which is likely to cause death or great bodily harm and includes, but is not limited to:

(1) The firing of a firearm in the direction of the person to be arrested , even though no intent exists to kill or inflict great bodily harm; and

(2) The firing of a firearm at a vehicle in which the person to be arrested is riding.

Hlstory.-s. 13, ch . 74-383.

776.07 Use of force to prevent escape.-(1) A law enforcement officer or other person who

has an arrested person in his custody is justified in the use of any force which he reasonably believes to be necessary to prevent the escape of the arrested person from custody.

(2) A guard or other law enforcement officer is justified in the use of force, including deadly force, which he reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such

1533

Ch. 776 JUSTIFIABLE USE OF FORCE F.S. 1987

institution under sentence for an offense or awaiting trial or commitment for an offense.

History.-s. 13, ch. 74-383.

776.08 Forcible felony.-"Forcible felony" means treason; murder; manslaughter; sexual battery; robbery ; burglary; arson; kidnapping ; aggravated assault ; aggravated battery; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

History.-s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400.

1776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.-

( 1) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted com-

mission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.

(2) For the purposes of this section , the term "forcible felony" shall have the same meaning as in s. 776.08.

(3) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.

Hlstory.-s. 1, ch . 87-187. 1Note.-As created by s. 1, ch. 87-187. Section 2 of ch. 87-187 provides, in perti·

nent part, that "[t]his act ... shall apply to all causes of action commenced on or after [October 1, 1987]."

1534

F.S. 1987 PRINCIPAL; ACCESSORY; ATIEMPT; SOLICITATION; CONSPIRACY Ch. 777

CHAPTER 777

PRINCIPAL; ACCESSORY; ATTEMPT; SOLICITATION; CONSPIRACY

777.011 777.03 777.04 777.201

Principal in first degree. Accessory after the fact. Attempts , solicitation , conspiracy, generally. Entrapment.

777.011 Principal in first degree.-Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels , hires, or otherwise procures such offense to be committed , and such offense is committed or is attempted to be committed , is a principal in the first degree and may be charged , convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

History.- s. 1, ch. 57-310; s. 11, ch. 74-383. Note.- Former s. 776.011 .

777.03 Accessory after the fact.-Whoever , not standing in the relation of husband or wife , parent or grandparent, child or grandchild , brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact , with intent that he shall avoid or escape detection , arrest , trial or punishment , shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree , punishable as provided in s. 775 .082 , s . 775.083, or s. 775.084.

History.-s. 6, sub-ch . 11 , ch. 1637, 1868; RS 2356; GS 3180; RGS 5010; CGL 711 2; s. 700, ch. 71-136; s. 65, ch . 74-383.

Note.-Former s. 776.03. cf.- s. 910.13 Jurisdiction and venue; accessory after the fact.

777.04 Attempts, solicitation, conspiracy, generally.-

( 1) Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall , when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection {4) . The offense of criminal attempt shall include the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.

(2) Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation and shall , when no express provision is made by law for the punishment of such solicitation, be punished as provided in subsection {4) .

(3) Whoever agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy and shall , when no express provision is made by law for the punishment of such conspiracy, be punished as provid-

ed in subsection (4) . (4) Whoever commits the offense of criminal at

tempt , criminal solicitation, or criminal conspiracy shall be punished as follows:

(a) If the offense attempted , solicited , or conspired to is a capital felony, the person convicted is guilty of a felony of the first degree , punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If the offense attempted , solicited, or conspired to is a life felony or a felony of the first degree, the person convicted is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) If the offense attempted , solicited , or conspired to is a felony of the second degree or a burglary that is a felony of the third degree, the person convicted is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d) If the offense attempted , solicited, or conspired to is a felony of the third degree, the person convicted is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(e) If the offense attempted , solicited , or conspired to is a misdemeanor of the first or second degree, the person convicted is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) It is a defense under this section that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant:

(a) Abandoned his attempt to commit the offense or otherwise prevented its commission ;

(b) After soliciting another person to commit an offense , persuaded such other person not to do so or otherwise prevented commission of the offense; or

{c) After conspiring with one or more persons to commit an offense, persuaded such persons not to do so or otherwise prevented commission of the offense.

History.-s. 8, sub-ch. 11 , ch . t637 , 1868; RS 2594; GS 3517 ; RGS 5403; CGL 7544; s. 701, ch. 71-t36; s. 1, ch. 72-245; s. 1, ch . 73-142; s. 12, ch. 74-383; s. 5, ch. 75- 298; s. 1, ch. 83-98; s. 2, ch . 86- 50.

Note.-Former s. 776.04.

1771.201 Entrapment.-(1) A law enforcement officer, a person engaged in

cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if , for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result , causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

(2) A person prosecuted for a crime shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

History.-s. 42, ch . 87-243. ' Note.-Section 43, ch. 87-243, provides that the provisions of this section 'shall

apply to offenses committed on or after [October 1, 1987]."

1535

Ch. 782 HOMICIDE F.S. 1987

CHAPTER 782

HOMICIDE

782.02 782.03 782.04 782.07 782 071 782.Q72 782.08 782.09 782.11

Justifiable use of deadly force. Excusable homicide. Murder. Manslaughter. Vehicular homicide. Vessel homicide. Assisting self-murder. Killing of unborn child by injury to mother. Unnecessary killing to prevent unlawful act.

782.02 Justifiable use of deadly force.-The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be.

Hlstory.-ss. 4, 5, ch . 1637, 1868; RS 2378; ch . 4967, 1901 ; s. 1, ch. 4964, 1901 ; GS 3203; RGS 5033; CGL 7135; s. 66, ch. 74-383; s. 1, ch . 75-24; s. 45, ch. 75-298.

782.03 Excusable homicide.-Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

History.-s. 6, ch. 1637, 1868; RS 2379; GS 3204; RGS 5034; CGL 7136; s. 1, ch . 75-13.

782.04 Murder.-(1 )(a) The unlawful killing of a human being : 1. When perpetrated from a premeditated design

to effect the death of the person killed or any human being; or

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1 ), b. Arson, c. Sexual battery, d. Robbery, e. Burglary, f. Kidnapping , g. Escape, h. Aggravated child abuse, i. Aircraft piracy, or j. Unlawful throwing , placing , or discharging 'Of a

destructive device or bomb; or 3. Which resulted from the unlawful distribution of ·

any substance controlled under s. 893.03(1 ), cocaine as described ins. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital fel ony, punishable as provided in s. 775.082.

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:

(a) Trafficking offense prohibited by s. 893.135(1 ), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (i) Aircraft piracy, or U) Unlawful throwing , placing, or discharging of a

destructive device or bomb

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:

(a) Trafficking offense prohibited by s. 893.135(1 ), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (i) Aircraft piracy, (j) Unlawful throwing, placing, or discharging of a

destructive device or bomb, or (k) Unlawful distribution of any substance controlled

under s. 893 .03(1) , cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 2, ch . 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921 ; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch . 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141 ; s. 290, ch . 79-400; s. 1, ch . 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch . 87-243. cf.-s. 316.656 Mandatory adjudication; prohibition against plea to lesser included

offense. s. 732.802 Killer not entitled to receive property or other benefits by reason of

1536

F.S. 1987 HOMICIDE Ch. 782

victim's death. s. 903.133 Bail pending review; prohibited for certain first-degree felony convic

tions.

782.07 Manslaughter.-The killing of a human being by the act , procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-AS 2384; GS 3209; AGS 5039; CGL 7141 ; s. 71 5, ch. 71-136; s. 180, ch. 73- 333; s. 15, ch. 74-383; s. 6, ch . 75-298. cf.- s. 316.193 Driving under the influence; penal ties .

s. 732.802 Killer not entitled to receive property or other benefits by reason of victim's death .

782.071 Vehicular homicide.-(1) "Vehicular homicide" is the killing of a human be

ing by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to , another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.- s. 16, ch. 74-383; s. 6, ch. 75- 298; s. 12, ch. 86- 296. cf.- s. 316. 193 Driving under the influence; penalties.

s. 316.656 Mandatory adjudication; prohibition against plea to lesser included offense.

782.072 Vessel homicide.-(1) "Vessel homicide" is the killing of a human being

by the operation of a vessel as defined in s. 327.02 by another in a reckless manner likely to cause the death of, or great bodily harm to , another. Vessel homicide is

a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who commits vessel homicide and willfully fails to stop or comply with the requirements of s. 327 .30(4) is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch . 87-20.

782.08 Assisting self-murder.-Every person deliberately assisting another in the commission of selfmurder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 9, ch. 1837, 1868; AS 2385; GS 3210; AGS 5040; CGL 71 42; s. 716, ch. 71-1 36. cf.-s. 732.802 Killer not entitled to receive property or other benefits by reason of

victim 's death.

782.09 Killing of unborn child by injury to mother.The willful killing of an unborn quick child , by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 10, ch. 1637, 1868; AS 2386; GS 3211 ; AGS 5041 ; CGL 7143; s. 717, ch. 71-136. cf.- s. 732.802 Killer not entitled to receive property or other benefits by reason of

victim's death.

782.11 Unnecessary killing to prevent unlawful act. -Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed , shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 13, ch. 1637, 1868; AS 2388; GS 3213; AGS 5043; CGL 7145; s. 719, ch . 71 - 136. cf.- s. 732.802 Killer not entitled to receive property or other benefits by reason of

victim's death .

1537

Ch. 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE F.S. 1987

CHAPTER 784

ASSAULT; BATTERY; CULPABLE NEGLIGENCE

784.011 784.021 784.03 784.045 784.05 784.07

Assault. Aggravated assault. Battery. Aggravated battery. Culpable negligence. Assault or battery of law enforcement officers,

firefighters, or intake officers; reclassification of offenses.

784.011 Assault.-(1) An "assault" is an intentional, unlawful threat by

word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 5, Feb. 10, 1832; RS 2400; GS 3226; RGS 5059; CGL 7161 ; s. 1, ch. 70-88; s. 729, ch 71-136; s. 17, ch . 74-383; s. 7, ch. 75-298.

Note.-Former s. 784.02. cf.-s. 231.06 Assault upon schoolteacher.

784.021 Aggravated assault.-(1) An "aggravated assault" is an assault: (a) With a deadly weapon without intent to kill; or (b) With an intent to commit a felony. (2) Whoever commits an aggravated assault shall

be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 3275, 1881 ; RS 2402; GS 3228; RGS 5061 ; CGL 7163; s. 1, ch. 29709, 1955; s. 1, ch . 57-345; s. 731 , ch. 71-136; s. 18, ch. 74-383; s. 8, ch. 75-298.

Note.-Former s. 784.04.

784.03 BaHery.-(1) A person commits battery if he: (a) Actually and intentionally touches or strikes an

other person against the will of the other; or (b) Intentionally causes bodily harm to an individual. (2) Whoever commits battery shall be guilty of a mis

demeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 5, Feb. 10, 1832; RS 2401 ; s. 1, ch . 5135, 1903; GS 3227; RGS 5060; CGL 7162; s. 2, ch. 70-88; s. 730, ch. 71-136; s. 19, ch. 74-383; s. 9, ch. 75-298.

784.045 Aggravated baHery.-(1) A person commits aggravated battery who, in

committing battery: (a) Intentionally or knowingly causes great bodily

harm, permanent disability, or permanent disfigurement; or

(b) Uses a deadly weapon . (2) Whoever commits aggravated battery shall be

guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 70-63; s. 732, ch. 71-136; s. 20, ch. 74-383; s. 10, ch. 75-298.

784.05 Culpable negligence.-(1) Whoever, through culpable negligence, exposes

another person to personal injury shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever through culpable negligence inflicts actual personal injury on another shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 5212, 1903; GS 3229; RGS 5062; CGL 7164; s. 733, ch. 71-136; s. 21 , ch . 74-383; s. 11 , ch. 75-298.

784.07 Assault or battery of law enforcement officers, firefighters, or intake officers; reclassification of offenses.-

(1 )(a) As used in this section, the term "law enforcement officer" includes, but shall not be limited to, any sheriff; deputy sheriff; municipal police officer; highway patrol officer; beverage enforcement agent; county probation officer; state, county, or municipal correctional officer; officer of the Parole and Probation Commission; parole and probation officer; and law enforcement personnel of the Game and Fresh Water Fish Commission and the Departments of Natural Resources and Law Enforcement.

(b) "Firefighter" as used in this section shall mean any person employed by any public employer of this state whose duty it is to extinguish fires , to protect life or property, or to enforce municipal, county, and state fire prevention codes, as well as any law pertaining to the prevention and control of fires .

(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or firefighter, or an intake officer as defined in s. 39.01 , while the officer, firefighter, or intake officer is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:

(a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

History.-s. 1, ch. 76-75; s. 1, ch. 77-174; s. 22, ch. 79-8; s. 1, ch . 80-43; s. 1, ch . 85-33.

1538

F.S. 1987 KIDNAPPING; FALSE IMPRISONMENT; CUSTODY OFFENSES Ch. 787

CHAPTER 787

KIDNAPPING; FALSE IMPRISONMENT; CUSTODY OFFENSES

787 .01 Kidnapping; kidnapping of child under age 13, aggravating circumstances.

787 .02 False imprisonment ; false imprisonment of child under age 13, aggravating circumstances.

787.03 Interference with custody. 787.04 Felony to remove children from state or to con

ceal children contrary to court order.

787.01 Kidnapping; kidnapping of child under age 13, aggravating circumstances.-

(1 )(a) The term "kidnapping" means forcibly , secretly, or by threat confining , abducting, or imprisoning another person against his will and without lawful authority, with intent to :

1. Hold for ransom or reward or as a shield or hos-tage.

2. Commit or facilitate commission of any felony. 3. Inflict bodily harm upon or to terrorize the victim

or another person. 4. Interfere with the performance of any govern-

mental or political function. (b) Confinement of a child under the age of 13 is

against his will within the meaning of this subsection if such confinement is without the consent of his parent or legal guardian .

(2) A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)(a) A person who commits the offense of kidnapping upon a child under the age of 13 and who, in the course of committing the offense, commits one or more of the following :

1. Aggravated child abuse, as defined ins. 827.03; 2. Sexual battery , as defined in chapter 794 ,

against the child; 3. A lewd, lascivious, or indecent assault or act

upon or in the presence of the child , in violation of s. 800.04;

4. A violation of s. 796.03 or s. 796.04, relating to prostitution , upon the child ; or

5. Exploitation of the child or allowing the child to be exploited, in violation of s. 450.151

is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Pursuant to s. 775.021(4) , nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the life felony described in paragraph (a) and for each separate offense enumerated in subparagraphs 1.-5. of paragraph (a) .

History.- s. 1, ch. 5907, 1909; RGS 5058; CGL 7160; s. 1, ch 16063, 1933; s. 784, ch. 71 - 136; s. 8, ch. 72-724; s. 22, ch 74-383; s. 12, ch. 75-298; s. 1, ch . 77-174; s. 1, ch. 84- 238.

Note.-Former s. 805.02. cf.- s. 794.011 Sexual battery.

s. 903.133 Bai l pending review; proh ibited for certain first-degree felony convic· tions.

787.02 False imprisonment; false imprisonment of child under age 13, aggravating circumstances.-

(1 )(a) The term "false imprisonment" means forcibly, by threat , or secretly confining, abducting , imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in s. 787.01 .

(b) Confinement of a child under the age of 13 is against his will within the meaning of this section if such confinement is without the consent of his parent or legal guardian .

(2) A person who commits the offense of false imprisonment is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)(a) A person who commits the offense of false imprisonment upon a child under the age of 13 and who, in the course of committing the offense, commits any offense enumerated in subparagraphs 1.-5. is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

1. Aggravated child abuse, as defined in s. 827.03; 2. Sexual battery , as defined in chapter 794 ,

against the child ; 3. A lewd, lascivious, or indecent assault or act

upon or in the presence of the child , in violation of s. 800.04;

4. A violation of s. 796.03 or s. 796.04, relating to prostitution, upon the child ; or

5. Exploitation of the child or allowing the chi ld to be exploited , in violation of s. 450.151 .

(b) Pursuant to s. 775 .021(4) , nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the first-degree offense described in paragraph (a) and for each separate offense enumerated in subparagraphs 1.-5. of paragraph (a) .

History.- s. 43, sub- ch . 3, ch. 1637, 1868; RS 2399; GS 3225; RGS 5057; CGL 7159; s. 783, ch. 71 -1 36; s. 23, ch. 74-383; s. 13, ch. 75- 298; s. 1, ch. 84-238.

Note.-Former s. 805.01 . cf.- s. 794.011 Sexual battery.

787.03 Interference with custody.-(1) Whoever, without lawful authority, knowingly or

recklessly takes or entices any child 17 years of age or under or any incompetent person from the custody of his parent, guardian , or other lawful custodian commits the offense of interference with custody and shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) It is a defense that: (a) The defendant reasonably believes that his ac

tion was necessary to preserve the child or the incompetent person from danger to his welfare.

(b) The child or incompetent person was taken away at his own instigation without enticement and without purpose to commit a criminal offense with or against the child or incompetent person.

(3) Proof that a child was 17 years of age or under creates the presumption that the defendant knew the child 's age or acted in reckless disregard thereof.

History.-s. 24, ch. 74- 383; s. 14, ch. 75-298; s. 1, ch . 77-174.

1539

Ch. 787 KIDNAPPING; FALSE IMPRISONMENT; CUSTODY OFFENSES F.S. 1987

787.04 Felony to remove children from state or to conceal children contrary to court order.-

(1) It is unlawful for any person , in violation of a court order , to lead , take, entice, or remove a child beyond the limits of this state, or to conceal the location of a child, with personal knowledge of the order.

(2) It is unlawful for any person , with criminal intent, to lead , take , entice, or remove a child beyond the limits of this state, or to conceal the location of a child , during the pendency of any action or proceeding affecting custody of the child , after having received notice as required by law of the pendency of the action or proceeding, without the permission of the court in which the action or proceeding is pending .

(3) It is unlawful for any person, who has carried beyond the limits of this state any child whose custody is involved in any action or proceeding pending in this state, pursuant to the order of the court in which the action or proceeding is pending, or pursuant to the permission of the court , thereafter, to fail to produce the child in the court or deliver the child to the person designated by the court.

(4) Any person convicted of a violation of this law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 29654, 1955; s. 1, ch . 57-337; s. 47, ch. 67-254; s. 785, ch. 71-136; s. 25, ch. 74- 383; s. 15, ch. 75-298; s. 1, ch. 80-102.

Note.-Former ss. 65.141 , 805.03.

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F.S. 1987

790.001 790.01 790.02

790.051

790.052

790.053 790.06

790.07

790.08

790.09 790.10

790.11

790.12

790.14 790.145

790.15 790.16 790.161

790.1615

790.1 62

790.163

790.164

790.165

790.17

790.18 790.19

790.22

790.221

790.225

WEAPONS AND FIREARMS Ch. 790

CHAPTER 790

WEAPONS AND FIREARMS

Definitions. Carrying concealed weapons. Officer to arrest without warrant and upon

probable cause. Exemption from licensing requirements ; law

enforcement officers. Carrying concealed firearms; off-duty law

enforcement officers. Open carrying of weapons. License to carry concealed weapon or fire

arm. Persons engaged in criminal offense, having

weapons. Taking possession of weapons and arms; re

ports; disposition ; custody. Manufacturing or selling slungshot. Improper exhibition of dangerous weapons

or firearms. Carrying firearms in national forests prohibit

ed . Permit may be granted by county commis

sioners. Penalty for violation of ss . 790.11 and 790.12. Crimes in pharmacies; possession of weap-

ons; penalties. Discharging firearm in public. Discharging machine guns; penalty. Making , possessing , throwing, placing, or

discharging any destructive device or attempt so to do, felony; penalties.

Unlawful throwing , placing, or discharging of destructive device or bomb that results in injury to another; penalty.

Threat to throw, place, or discharge any destructive device, felony ; penalty.

False report about planting bomb or explosive; penalty.

False reports of bombing or arson against state-owned property; penalty; reward .

Planting of "hoax bomb" prohibited; penalties.

Furnishing weapons to minors under 18 years of age, etc.

Selling arms to minors by dealers. Shooting into or throwing deadly missiles

into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.

Use of BB guns, air or gas-operated guns, electric weapons or devices, or firearms by child under 16; limitation .

Possession of short-barreled rifle, shortbarreled shotgun , or machine gun ; penalty.

Self-propelled knives; unlawful to manufacture, sell , or possess; forfeiture ; penalty.

790.23

790.24

790.25

790.27

790.28

790.29

790.31

790.33

Felons; possession of firearms or electric weapons or devices unlawful; exception; penalty.

Report of medical treatment of gunshot wounds; penalty for failure to report.

Lawful ownership, possession , and use of firearms and other weapons.

Alteration or removal of firearm serial number or possession, sale, or delivery of firearm with serial number altered or removed prohibited; penalties.

Purchase of rifles and shotguns in contiguous states .

Paramilitary training; teaching or participation prohibited .

Armor-piercing or exploding ammunition prohibited.

Field of regulation of firearms and ammunition preempted .

790.001 Definitions.-The following words and phrases, when used in this chapter, shall , for the purposes of this chapter, have the meanings respectively ascribed to them in this chapter, except where the context otherwise requires:

(1) "Antique firearm" means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

(2) "Concealed firearm" means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.

(3)(a) "Concealed weapon" means any dirk, metallic knuckles, slungshot, billie , tear gas gun , chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

(b) "Tear gas gun ," "chemical weapon," or "device" shall apply to all weapons of such nature except those designed to be carried in a woman's handbag or a man's pants or coat pocket or designed as a pocket pencil or pen and containing not more than one-half ounce of chemical.

(4) "Destructive device" means any explosive, incendiary, or poison gas bomb, grenade, mine, rocket , missile, or similar device and includes any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and has a barrel with a bore of one-half inch or more in diameter and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device. "Destructive device" does not include:

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Ch. 790 WEAPONS AND FIREARMS F.S. 1987

(a) A device which is not designed, redesigned , used, or intended for use as a weapon;

(b) Any device, although originally designed as a weapon , which is redesigned so that it may be used solely as a signaling , line-throwing, safety, or similar device;

(c) Any shotgun other than a short-barreled shotgun; or

(d) Any nonautomatic rifle (other than a shortbarreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

(5) "Explosive" means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin , trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators; but not including:

(a) Shotgun shells , cartridges, or ammunition for firearms;

(b) Fireworks as defined in s. 791 .01 ; (c) Smokeless propellant powder or small arms am

munition primers, if possessed, purchased, sold , transported , or used in compliance with s. 552.241 ;

(d) Black powder in quantities not to exceed that authorized by chapter 552, or by any rules or regulations promulgated thereunder by the Department of Insurance, when used for, or intended to be used for, the manufacture of target and sporting ammunition or for use in muzzle-loading flint or percussion weapons.

The exclusions contained in paragraphs (a)-(d) do not apply to the term "explosive" as used in the definition of "firearm" in subsection (6) .

(6) "Firearm" means any weapon (including a starter gun) which will , is designed to , or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a riot ; the inciting or encouraging of a riot; or the commission of a murder, an armed robbery, an aggravated assault , an aggravated battery, a burglary, an aircraft piracy, a kidnapping, or a sexual battery.

(7) "Indictment" means an indictment or an information in any court under which a crime punishable by imprisonment for a term exceeding 1 year may be prosecuted .

(8) "Law enforcement officer" means: (a) All officers or employees of the United States or

the State of Florida, or any agency, commission, department, board , division , municipality, or subdivision thereof, who have authority to make arrests;

(b) Officers or employees of the United States or the State of Florida, or any agency, commission , department, board , division , municipality, or subdivision thereof, duly authorized to carry a concealed weapon ;

(c) Members of the Armed Forces of the United States , the organized reserves, state militia, or Florida National Guard, when on duty, when preparing themselves for, or going to or from, military duty, or under orders;

(d) An employee of the state prisons or correctional systems who has been so designated by the Department of Corrections or by a superintendent of an institution;

(e) All peace officers; (f) All state attorneys and United States attorneys

and their respective assistants and investigators. (9) "Machine gun" means any firearm, as defined

herein, which shoots, or is designed to shoot, automatically or semiautomatically, more than one shot, without manually reloading , by a single function of the trigger .

(10) "Short-barreled shotgun" means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration , modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches.

(11) "Short-barreled rifle" means a rifle having one or more barrels less than 16 inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches.

(12) "Siungshot" means a small mass of metal, stone, sand, or similar material fixed on a flexible handle, strap, or the like, used as a weapon .

(13) "Weapon" means any dirk , metallic knuckles , slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

(14) "Electric weapon or device" means any device which, through the application or use of electrical current , is designed, redesigned , used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

(15) "Readily accessible for immediate use" means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.

(16) "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.

Hlatory.-s. 1, ch. 69-306: ss. 13, 19, 35, ch. 69-106: ss. 1, 2, ch. 70-441 : s. 32, ch. 73- 334: s. 1, ch. 76-1 65: s. 12, ch . 77-1 20: s. 1, ch. 78-200: s. 19, ch . 79-3: s. 1, ch. 79-58: s. 1, ch. 80- 112: s. 1, ch. 82- 131 : s. 162, ch. 83-216.

790.01 Carrying concealed weapons.-(1) Whoever shall carry a concealed weapon or elec

tric weapon or device on or about his person shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree , punishable as provided in s. 775.082 , s. 775.083, or s. 775.084.

(3) Nothing in this section shall relate to persons licensed as set forth in 1ss. 790.05 and 790.06.

Hiatory.- s. 1, ch. 4929, 1901 : GS 3262: RGS 5095: CGL 71 97: s. 1, ch. 67-165: s. 2, ch. 69-306: s. 739, ch. 71- 136: s. 2, ch. 76-165: s. 3, ch. 80-268.

1Note.-Section 790.05 was repealed by s. 4, ch . 87-24, Laws of Florida.

790.02 Officer to arrest without warrant and upon probable cause.-The carrying of a concealed weapon is declared a breach of peace, and any officer author-

1542

F.S. 1987 WEAPONS AND FIREARMS Ch. 790

ized to make arrests under the laws of this state may make arrests without warrant of persons violating the provisions of s. 790.01 when said officer has reasonable grounds or probable cause to believe that the offense of carrying a concealed weapon is being committed.

History.-s. 1, ch. 4929, 1901 ; GS 3263; RGS 5096; CGL 7198; s. 3, ch. 69-306. cf.- s. 901.15 When arrest by officer without warrant lawful.

790.051 Exemption from licensing requirements; law enforcement officers.-Law enforcement officers are exempt from the licensing and penal provisions of this chapter when acting at any time within the scope or course of their official duties or when acting at any time in the line of or performance of duty.

Hlstory.-s. 11 , ch. 69-306.

790.052 Carrying concealed firearms; off-duty law enforcement officers.-

(1) All full-time police officers, Florida highway patrolmen, agents of the Department of Law Enforcement, and sheriffs' deputies shall have the right to carry, on or about their persons, concealed firearms, during off-duty hours, at the discretion of their superior officers, and may perform those law enforcement functions that they normally perform during duty hours, utilizing their weapons in a manner which is reasonably expected of onduty officers in similar situations.

(2) The superior officer of any police department or sheriff's office or the Florida Highway Patrol, if he elects to direct the officers under his supervision to carry concealed firearms while off duty, shall file a statement with the governing body of such department of his instructions and requirements relating to the carrying of said firearms.

(3) No police officer, while off duty, shall carry a concealed firearm hereunder unless his bond shall cover his actions while off duty.

Hlstory.-ss. 1, 2, 3, ch. 72-84; s. 235. ch. 77-104; s. 23, ch. 79-8.

1790.053 Open carrying of weapons.-Except as otherwise provided by law, it shall be unlawful for any person to openly carry on or about his person any firearm or electric weapon or device; provided, however, that a person may openly carry a stun gun or nonlethal electric weapon or device designed solely for defensive purposes, which weapon does not fire a dart or projectile. Any person violating this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 1, ch. 87-537. 1Note.-Effective October 9, 1987.

790.06 License to carry concealed weapon or firearm.-

(1) The Department of State is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife , or billie. Such licenses shall be valid throughout the state for a period of 3 years from the date of issuance. Any person in compliance with the terms of such license may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01 . The licensee must carry the

license or an actual copy thereof, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer. Violations of the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25, payable to the clerk of the court.

(2) The Department of State shall issue a license if the applicant:

(a) Is a resident of the state and has been a resident for 6 months or longer immediately preceding the filing of the application;

(b) Is 21 years of age or older; (c) Does not suffer from a physical infirmity which

prevents the safe handling of a weapon or firearm; (d) Is not ineligible to possess a firearm pursuant to

s. 790.23 by virtue of having been convicted of a felony; (e) Has not been committed for the abuse of a con

trolled substance or been found guilty of a crime under the provisions of chapter 893 or similar laws of any other state relating to controlled substances within a 3-year period immediately preceding the date on which the application is submitted;

(f) Does not chronically and habitually use alcoholic beverages to the extent that his normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages to the extent that his normal faculties are impaired if the applicant has been committed as an alcoholic under the provisions of chapter 396 or has been deemed a habitual offender under s. 856.011 (3), or has had two or more convictions under s. 316.193 or similar laws of any other state, within the 3-year period immediately preceding the date on which the application is submitted;

(g) Desires a legal means to carry a concealed weapon or firearm for lawful self-defense;

(h) Demonstrates competence with a firearm by any one of the following:

1. Completion of any hunter education or hunter safety course approved by the Game and Fresh Water Fish Commission or a similar agency of another state;

2. Completion of any National Rifle Association fire-arms safety or training course;

3. Completion of any firearms safety or training course or class available to the general public offered by a law enforcement, junior college, college, or private or public institution or organization or firearms training school, utilizing instructors certified by the National Rifle Association, Criminal Justice Standards and Training Commission, or the Department of State;

4. Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, special deputies, or any division or subdivision of law enforcement or security enforcement;

5. Presents evidence of equivalent experience with a firearm through participation in organized shooting competition or military service;

6. Is licensed or has been licensed to carry a firearm in this state or a county or municipality of this state, unless such license has been revoked for cause; or

1543


7. Completion of any firearms training or safety course or class conducted by a state certified or National Rifle Association certified firearms instructor;

A photocopy of a certificate of completion of any of the courses or classes; or an affidavit from the instructor, school , club, organization, or group that conducted or taught said course or class attesting to the completion of the course or class by the applicant; or a copy of any document which shows completion of the course or class or evidences participation in firearms competition shall constitute evidence of qualification under this paragraph ;

(i) Has not been adjudicated an incompetent under s. 744.331, or has waited 3 years from the date his competency was restored by court order under s. 744.464; and

U) Has not been committed to a mental institution under chapter 394, unless he possesses a certificate from a psychiatrist licensed in this state that he has not suffered from disability for a period of 3 years.

(3) The Department of State may deny a license if the applicant has been found guilty of one or more crimes of violence within a 3-year period beginning 3 years prior to the date on which the application is submitted or may revoke a license if the licensee has been found guilty of one or more crimes of violence within the preceding 3 years.

(4) The application shall be completed , under oath , on a form promulgated by the Department of State and shall include:

(a) The name, address, place and date of birth, race, and occupation of the applicant;

(b) A statement that the applicant is in compliance with criteria contained within subsections (2) and (3) ;

(c) A statement that the applicant has been furnished a copy of this chapter and is knowledgeable of its provisions;

(d) A conspicuous warning that the application is executed under oath and that a false answer to any question, or the submission of any false document by the applicant , subjects the applicant to criminal prosecution under s. 837 .06; and

(e) A statement that the applicant desires a concealed weapon or firearms license as a means of lawful self-defense.

(5) The applicant shall submit to the Department of State:

(a) A completed application as described in subsection (4);

(b) A nonrefundable license fee not to exceed $125, if he has not previously been issued a statewide license, or a nonrefundable license fee not to exceed $100 for renewal of a statewide license. Costs for processing the set of fingerprints 1as required in paragraph (c) shall be borne by the applicant. However, a "law enforcement officer" or "correctional officer" as defined in s. 943.1 0(1 ), (2) , (6) , (7) , (8) , and (9) shall be permitted to carry concealed firearms notwithstanding the requirements of this section . Further, a law enforcement or correctional officer as defined in s. 943.1 0(1) or (2) shall be exempt from the required fees and background investigation for a period of 1 year subsequent to the date of retirement

of said officer as a law enforcement or correctional officer ;

(c) A full set of fingerprints of the applicant administered by a law enforcement agency of this state; and

(d) A photocopy of a certificate or an affidavit or document as described in paragraph (2)(h).

(6)(a) The Department of State, upon receipt of the items listed in subsection (5). shall forward the full set of fingerprints of the applicant to the Department of Law Enforcement for state and federal processing, provided the federal service is available, to be processed for any criminal justice information as defined in s. 943.045, and forward a copy of the application and $20 of the original license fee or $10 of the renewal license fee to the sheriff of the applicant's county of residence. The cost of processing such fingerprints shall be payable to the Department of Law Enforcement by the Department of State.

(b) The sheriff of the applicant's county of residence may, at his discretion, participate in the process by submitting a voluntary report to the Department of State containing any readily discoverable prior information that he feels may be pertinent to the licensing of any applicant . Any such voluntary reporting shall be made within 45 days after the date he receives the copy of the application . If the sheriff chooses, he may notify the department in writing that he does not wish to receive copies of the application and the fee described in paragraph (a) of subsection (6) .

(c) The sheriff's office shall provide fingerprinting service at no charge to the applicant if requested by the applicant to do so.

(d) The Department of State shall, within 90 days after the date of receipt of the items listed in subsection (5):

1. Issue the license; or 2. Deny the application based solely on the ground

that the applicant fails to qualify under the criteria listed in subsection (2) or subsection (3) . If the Department of State denies the application , it shall notify the applicant in writing , stating the ground for denial and informing the applicant of any right to a hearing pursuant to chapter 120.

(7) The Department of State shall maintain an automated listing of licenseholders and pertinent information , and such information shall be available on-line, upon request, at all times to all law enforcement agencies through the Florida Crime Information Center.

(8) Within 30 days after the changing of a permanent address, or within 30 days after having a license lost or destroyed, the licensee shall notify the Department of State of such change. Failure to notify the Department of State pursuant to the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25.

(9) In the event that a concealed weapon or firearm license is lost or destroyed, the license shall be automatically invalid , and the person to whom the same was issued may, upon payment of $15 to the Department of State, obtain a duplicate, or substitute thereof, upon furnishing a notarized statement to the Department of State that such license has been lost or destroyed.

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(1 0) A license issued under this section shall be suspended or revoked pursuant to chapter 120 if the licensee:

(a) Becomes ineligible under the criteria set forth in subsection (2);

(b) Develops or sustains a physical infirmity which prevents the safe handling of a weapon or firearm;

(c) Is convicted of a felony which would make the licensee ineligible to possess a firearm pursuant to s. 790.23;

(d) Is found guilty of a crime under the provisions of chapter 893, or similar laws of any other state, relating to controlled substances;

(e) Is committed as an alcoholic under chapter 396, or is deemed a habitual offender under s. 856.011 (3);

(f) Is convicted of a second violation of s. 316.193, or a similar law of another state, within 3 years of a previous conviction of such section, or similar law of another state, even though the first violation may have occurred prior to the date on which the application was submitted;

(g) Is adjudicated an incompetent under s. 744.331; or

(h) Is committed to a mental institution under chapter 394.

(11) No less than 90 days prior to the expiration date of the license, the Department of State shall mail to each licensee a written notice of the expiration and a renewal form prescribed by the Department of State. The licensee must renew his license on or before the expiration date by filing with the Department of State the renewal form , a notarized affidavit stating that the licensee remains qualified pursuant to the criteria specified in subsections (2) and (3), a completed fingerprint card, and the required renewal fee and fingerprint processing fee. The license shall be renewed upon receipt of the completed renewal application, fingerprint card, and appropriate payment of fees . Additionally , a licensee who fails to file a renewal application on or before its expiration date must renew his license by paying a late fee of $15. No license shall be renewed 6 months or more after its expiration date, and such license shall be deemed to be permanently expired . A person whose license has been permanently expired may reapply for licensure; however, an application for licensure and fees pursuant to subsection (5) must be submitted, and a background investigation shall be conducted pursuant to the provisions of this section. Persons who knowingly file false information pursuant to this subsection shall be subject to criminal prosecution under s. 837.06.

(12) No license issued pursuant to this section shall authorize any person to carry a concealed weapon or firearm into any place of nuisance as defined in s. 823.05; any police, sheriff, or highway patrol station; any detention facility, prison , or jail ; any courthouse; any courtroom, except that nothing in this section would preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in his courtroom; any polling place; any meeting of the governing body of a county, municipality, or special district; any meeting of the Legislature or a committee thereof; any school , college, or professional athletic event not related to firearms; any portion of an establishment licensed to

dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose; any elementary or secondary school facility; any college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile; or any place where the carrying of firearms is prohibited by federal law.

(13) Notwithstanding any other provision of this section, each person who is duly licensed to carry a concealed weapon or firearm on October 1, 1987, shall be entitled to carry a concealed weapon or firearm under the provisions of the county ordinance under which such license was issued until such time as the license expires. However, such person may obtain a statewide concealed weapon or firearm license for the unexpired period of the current county license upon submission of proof of a current county concealed weapon or firearm license and payment of $15 to the Department of State. Whenever a license issued pursuant to this subsection expires, a statewide concealed weapon or firearm license shall not be issued until the person complies with the requirements of this section as an initial applicant. Within 30 days after October 1, 1987, each board of county commissioners shall notify all current licenseholders in their respective counties that they may convert their licenses to statewide licenses under the provisions of this subsection .

(14) All moneys collected pursuant to this section shall be deposited in the Division of Licensing Trust Fund, and the Legislature shall appropriate from the fund those amounts deemed necessary to administer the provisions of this section . The Department of State shall be authorized to expend revenues collected from this section for startup and first year costs required to implement and administer the provisions of this section. Any balance at the end of the first year of operation shall be deferred equally over the 2 remaining years of the licensure period . Thereafter, all revenues collected , less those costs determined by the Department of State to be nonrecurring or one-time costs, shall be deferred over the 3-year licensure period . Notwithstanding the provisions of s. 493.316, all moneys collected pursuant to this section shall not revert to the General Revenue Fund; however, this shall not abrogate the requirement for payment of the service charge imposed pursuant to chapter 215.

(15) All funds received by the sheriff pursuant to the provisions of this section shall be deposited into the general revenue fund of the county and shall be budgeted to the sheriff.

(16) The Legislature finds as a matter of public policy and fact that it is necessary to provide statewide uniform standards for issuing licenses to carry concealed weapons and firearms for self-defense and finds it necessary to occupy the field of regulation of the bearing of concealed weapons or firearms for self-defense to ensure that no honest, law-abiding person who qualifies under the provisions of this section is subjectively or arbitrarily denied his rights . The Department of State shall implement and administer the provisions of this section.

1545


The Legislature does not delegate to the Department of State the authority to regulate or restrict the issuing of licenses provided for in this section, beyond those provisions contained in this section . Subjective or arbitrary actions or rules which encumber the issuing process by placing burdens on the applicant beyond those sworn statements and specified documents detailed in this section or which create restrictions beyond those specified in this section are in conflict with the intent of th is section and are prohibited. This section shall be liberally construed to carry out the constitutional right to bear arms for self-defense. This section is supplemental and additional to existing rights to bear arms, and nothing in this section shall impair or diminish such rights .

(17) By March 1 of each year, the Department of State shall submit a statistical report to the Governor, the President of the Senate, the Senate Republican Leader, the Speaker of the House of Representatives, and the House Minority Leader indicating the number of licenses issued, revoked, suspended, and denied.

(18) As amended by chapter 87- 24, Laws of Florida, this section shall be known and may be cited as the "Jack Hagler Self Defense Act. "

History.-s. 2, ch. 4147, 1893; s. 1, ch. 5139, 1903; GS 3268; RGS 5101 ; CGL 7203; s. 2, ch. 76- 165; s. 67, ch. 77-121; s. 1, ch. 77-302; s. 176, ch. 79-164; ss. 1, 2, ch. 87-24.

1Note.- The words "as required in paragraph (c)" were added by the editors .

790.07 Persons engaged in criminal offense, having weapons.-

(1) Whoever , while committing or attempting to commit any felony or while under indictment, displays, uses, threatens , or attempts to use any weapon or electric weapon or device or carries a concealed weapon is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Whoever, while commi tt ing or attempting to commit any felony or while under indictment, displays, uses , threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree , punishable as provided in s. 775 .082 , s. 775.083, and s. 775.084.

(3) The following crimes are excluded from application of this section: Antitrust violations, unfair trade practices, restraints of trade, nonsupport of dependents, bigamy, or other similar offenses.

(4) Whoever, having previously been convicted of a violation of subsection (1) or subsection (2) and , subsequent to such conviction, displays, uses, threatens, or attempts to use any weapon , firearm , or electric weapon or device, carries a concealed weapon , or carries a concealed firearm while committing or attempting to commit any felony or while under indictment is guilty of a felony of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. Sentence shall not be suspended or deferred under the provisions of this subsection .

History.-s. 10, ch. 1637, 1868; RS 2423; s. 2, ch. 4124, 1893; GS3269; RGS5102; CGL 7204; s. 4, ch. 69- 306; s. 741, ch. 71-136; s. 2, ch. 76-165.

790.08 Taking possession of weapons and arms; reports; disposition; custody.-

(1) Every officer making an arrest under the preceding section , or under any other law or municipal ordinance within the state, shall take possession of any

weapons, electric weapons or devices , or arms mentioned in the preceding section found upon the person arrested and deliver them to the sheriff of the county, or the chief of police of the municipality wherein the arrest is made, who shall retain the same until after the trial of the person arrested.

(2) If the person arrested as aforesaid is convicted of violating s. 790.07, or of a similar offense under any municipal ordinance, or any other offense involving the use or attempted use of such weapons, electric weapons or devices, or arms, such weapons, electric weapons or devices, or arms shall become forfeited to the state, without any order of forfeiture being necessary, although the making of such an order shall be deemed proper, and such weapons, electric weapons or devices, or arms shall be forthwith delivered to the sheriff by the chief of police or other person having custody thereof, and the sheriff is hereby made the custodian of such weapons , electric weapons or devices, and arms for the state.

(3) If the person arrested as aforesaid is acquitted of the offenses mentioned in subsection (2) , the said weapons, electric weapons or devices , or arms taken from him as aforesaid shall be returned to him; however, if he fails to call for or receive the same within 60 days from and after his acquittal or the dismissal of the charges against him, the same shall be delivered to the sheriff as aforesaid to be held by him as hereinafter provided . This subsection shall likewise apply to persons and their weapons, electric weapons or devices, or arms who have heretofore been acquitted or the charges against them dismissed.

(4) All such weapons, electric weapons or devices, and arms now in, or hereafter coming into, the hands of any of the peace officers of this state or any of its political subdivisions, which have been found abandoned or otherwise discarded, or left in their hands and not reclaimed by the owners shall , within 60 days, be delivered by such peace officers to the sheriff of the county aforesaid.

(5) Weapons, electric weapons or devices, and arms coming into the hands of the sheriff pursuant to subsections (3) and (4) aforesaid shall , unless reclaimed by the owner thereof within 6 months from the date the same come into the hands of the said sheriff, become forfeited to the state, and no action or proceeding for their recovery shall thereafter be maintained in this state.

(6) Weapons , electric weapons or devices , and arms coming into the hands of the sheriff as aforesaid shall be listed , kept , and held by him as custodian for the state. Any or all such weapons, electric weapons or devices, and arms suitable for use by the sheriff may be so used. All such weapons, electric weapons or devices, and arms not needed by the said sheriff may be loaned to any other department of the state or to any county or municipality having use for such weapons, electric weapons or devices, and arms. The sheriff shall take the receipt of such other department, county, or municipality for such weapons, electric weapons or devices , and arms loaned to them. All weapons, electric weapons or devices , and arms which are not needed or which are useless or unfit for use shall be destroyed or otherwise disposed of by the sheriff as provided in chapter 705 or

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as provided in the Florida Contraband Forfeiture Act. All sums received from the sale or other disposition of the said weapons, electric weapons or devices, or arms disposed of by the sheriff under chapter 705 as aforesaid shall be paid into the State Treasury for the benefit of the State School Fund and shall become a part thereof. All sums received from the sale or other disposition of any such weapons, electric weapons or devices, or arms disposed of by the sheriff under the Florida Contraband Forfeiture Act shall be disbursed as provided therein.

(7) This section does not apply to any municipality in any county having home rule under the State Constitution .

History.-s. 3, ch. 3620, 1885: RS 2424: GS 3270: RGS 5103: CGL 7205: s. 1, ch. 22049,1943: s. 1, ch . 65-189: ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 67-523; s. 3, ch . 67-2207; ss. 20, 35, ch. 69-106; s. 2, ch. 76-165: s. 24, ch. 79-8; s. 12, ch. 80-68; s. 1, ch. 83-21 . cf.-ss. 932.701-932.704 Florida Contraband Forfeiture Act.

790.09 Manufacturing or selling slungshot.-Whoever manufactures or causes to be manufactured , or sells or exposes for sale any instrument or weapon of the kind usually known as slungshot, or metallic knuckles, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 11 , ch. 1837, 1868: RS 2425; s. 3, ch . 4124, 1893: GS3271 ; RGS 5104; CGL 7206; s. 742, ch. 71-136.

790.10 Improper exhibition of dangerous weapons or firearms.-lf any person having or carrying any dirk, sword , sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 4532, 1897; GS 3272; RGS 5105; CGL 7207: s. 5, ch. 69-306: s. 743, ch. 71-136; s. 2, ch. 76-165.

790.11 Carrying firearms in national forests prohibited.-Except during the hunting season as established by law, no person shall carry, on or about his person , or in any vehicle in which such person may be riding, or on any animal which such person may be using , within the limits of a national forest area within the state, any gun or firearm of any description whatever , without first having obtained a permit as hereinafter prescribed except on state roads when securely locked within a vehicle.

History.-s. 1, ch. 17911 , 1937: CGL 1940 Supp. 7203(5): s. 1, ch. 65-1 88.

790.12 Permit may be granted by county commissioners.-The board of county commissioners of the county, or counties, where such national forest area is located, may grant special permit for the carrying of firearms to be specifically described in such permit, when the granting of such permit shall have been recommended in writing by the officer or employee of the United States Government in charge of such national forest area; and, where such area lies in more than one county, such permit must be granted by the board of county commissioners of each of the several counties involved before the same shall be valid .

History.-s. 2, ch. 1791 1, 1937: CGL 1940 Supp. 7203(6).

790.14 Penalty for violation of ss. 790.11 and 790.12.-Any person violating the provisions of ss .

790.11 and 790.12 shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083.

Hlstory.-s. 4, ch. 17911 , 1937: CGL 1940 Supp. 7203(8); s. 7, ch. 22858, 1945: s. 744, ch. 71-136.

790.145 Crimes in pharmacies; possession of weapons; penalties.-

(1) Unless otherwise provided by law, any person who is in possession of a concealed "firearm," as defined in s. 790.001 (6), or a "destructive device," as defined in s. 790.001(4). within the premises of a "pharmacy." as defined in chapter 465, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s . 775.083, or s. 775.084.

(2) The provisions of this section do not apply: (a) To any law enforcement officer; (b) To any person employed and authorized by the

owner, operator, or manager of a pharmacy to carry a firearm or destructive device on such premises; or

(c) To any person licensed to carry a concealed weapon.

Hlstory.-s. 1, ch. 81-278.

790.15 Discharging firearm in public.-Any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road , highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Game and Fresh Water Fish Commission or Division of Forestry.

Hlstory.- s. 1, ch. 3289, 1881 : RS 2683: GS 3626; RGS 5557; CGL 7743; s. 1, ch . 61-334; s. 745, ch . 71-136: s. 1, ch. 78-17. cf.-ch. 16249, 1933 Discharging firearms upon Tamiami Trail.

790.16 Discharging machine guns; penalty.-(1) It is unlawful for any person to shoot or discharge

any machine gun upon, across, or along any road , street, or highway in the state; upon or across any public park in the state; or in, upon, or across any public place where people are accustomed to assemble in the state. The discharge of such machine gun in, upon, .or across such public street ; in, upon, or across such public park; or in, upon, or across such public place, whether indoors or outdoors, including all theaters and athletic stadiums, with intent to do bodily harm to any person or with intent to do damage to property not resulting in the death of another person shall be a felony of the first degree, punishable as provided in s. 775.082. A sentence not exceeding life imprisonment is specifically authorized When great bodily harm to another or serious disruption of governmental operations results .

(2) This section shall not apply to the use of such machine guns by any United States or state militia or by any law enforcement officer while in the discharge of his lawful duty in suppressing riots and disorderly conduct and in preserving and protecting the public peace or in the preservation of public property, or when said use is

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authorized by law. Hlatory.-s. 1, ch. 16111 , 1933; CGL 1936 Supp. 7748(1); s. 746, ch. 71-136; s.

5, ch. 72-724; s. 1, ch. 76-38.

790.161 Making, possessing, throwing, placing, or discharging any destructive device or attempt so to do, felony; penalties.-A person who makes, possesses, throws, places, discharges, or attempts to discharge any destructive device, with intent to do bodily harm to any person or with intent to do damage to property:

(1) Shall be guilty of a felony of the second degree, punishable as provided in s. 775.082 or s. 775.084.

(2) If the act results in a disruption of governmental operations, commerce, or the private affairs of another person, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082 or s. 775.084, and the person shall be required to serve a term of imprisonment of not less than 5 calendar years before becoming eligible for parole.

(3) If the act results in bodily harm to another person or in property damage, shall be guilty of a felony of the first degree, punishable as provided in s. 775.082 or s. 775.084, and the person shall be required to serve a term of imprisonment of not less than 10 calendar years before becoming eligible for parole.

(4) If the act results in the death of another person, shall be guilty of a capital felony, punishable by death. In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court , the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court , and the court shall sentence such person to life imprisonment, and such person shall be required to serve a term of imprisonment of not less than 25 calendar years before becoming eligible for parole.

Hiatory.-s. 1, ch. 59-29; s. 6, ch. 69-306; s. 1, ch. 70-85; s. 747, ch. 71-136; s. 6, ch. 72-724; s. 2, ch. 76-38.

790.1615 Unlawful throwing, placing, or discharging of destructive device or bomb that results in injury to another; penalty.-

(1) A person who perpetrates any unlawful throwing, placing, or discharging of a destructive device or bomb that results in any bodily harm to a firefighter or any other person, regardless of intent or lack of intent to cause such harm, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) A person who perpetrates any unlawful throwing, placing, or discharging of a destructive device or bomb that results in great bodily harm, permanent disability, or permanent disfigurement to a firefighter or any other person, regardless of intent or lack of intent to cause such harm, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Upon conviction and adjudication of guilt, a person may be sentenced separately , pursuant to s. 775.021 (4), for any violation of this section and for any unlawful throwing, placing, or discharging of a destructive device or bomb committed during the same criminal episode. A conviction for any unlawful throwing, placing, or discharging of a destructive device or bomb, howev-

er, is not necessary for a conviction under this section. Hiatory.-s. 1, ch. 84-23.

790.162 Threat to throw, place, or discharge any destructive device, felony; penalty.-lt is unlawful for any person to threaten to throw, place, or discharge any destructive device with intent to do bodily harm to any person or with intent to do damage to any property of any person , and any person convicted thereof shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hiatory.-s. 2, ch. 59-29; s. 7, ch. 69-306; s. 748, ch. 71-136.

790.163 False report about planting bomb or explosive; penalty.-lt is unlawful for any person to make a false report, with intent to deceive, mislead, or otherwise misinform any person, concerning the placing or planting of any bomb, dynamite, or other deadly explosive; and any person convicted thereof is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlatory.-s. 3, ch . 59-29; s. 749, ch. 71-136.

790.164 False reports of bombing or arson against state-owned property; penalty; reward.-

(1) It is unlawful for any person to make a false report , with intent to deceive, mislead, or otherwise misinform any person, concerning the placing or planting of any bomb, dynamite, or other deadly explosive, or concerning any act of arson or other violence to property owned by the state or any political subdivision. Any person violating the provisions of this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)(a) There shall be a $5,000 reward for the giving of information to any law enforcement agency in the state, which information leads to the arrest and conviction of any person violating the provisions of this section. Any person claiming such reward shall apply to the law enforcement agency developing the case and be paid by the Department of Law Enforcement from the deficiency fund .

(b) There shall be only one reward given for each case, regardless of how many persons are arrested and convicted in connection with the case and regardless of how many persons submit claims for the reward.

(c) The Department of Law Enforcement shall establish procedures to be used by all reward applicants, and the circuit judge in whose jurisdiction the action occurs shall review all such applications and make final determination as to those applicants entitled to receive an award .

Hiatory.-ss. 2, 2A, ch. 71-306; s. 1, ch. 76-146; s. 236, ch. 77-104; s. 25, ch. 79-8.

790.165 Planting of "hoax bomb" prohibited; penalties.-

(1) For the purposes of this section, "hoax bomb" means any device or object that by its design, construction, content , or characteristics appears to be, or to contain, a destructive device or explosive as defined in this chapter, but is, in fact , an inoperative facsimile or imitation of such a destructive device or explosive.

(2) Any person who manufactures, possesses, sells , or delivers a hoax bomb or mails or sends a hoax bomb

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to another person shall be guilty of a felony of the third degree , punishable as provided in s . 775 .082 , s . 775.083, or s. 775.084.

(3) Any person who, while committing or attempting to commit any felony, possesses, displays, or threatens to use any hoax bomb shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person violating the provisions of this subsection shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01 , adjudication of guilt or imposition of sentence shall not be suspended , deferred, or withheld . However, the state attorney or defense attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification , arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals.

(4) The provisions of subsection (2) shall not apply to any law enforcement officer, fireman , person, or corporation licensed pursuant to chapter 493, or member of the armed forces of the United States while engaged in training or other lawful activity within the scope of his employment, or to any member of a theatrical company or production utilizing a hoax bomb as property during the course of a rehearsal or performance.

History.-s. 39. ch . 87-243.

790.17 Furnishing weapons to minors under 18 years of age, etc.-Whoever sells , hires, barters, lends, or gives any minor under 18 years of age any pistol , dirk, electric weapon or device, or other arm or weapon, other than an ordinary pocketknife, without permission of the parent of such minor, or the person having charge of such minor, or sells , hires, barters, lends, or gives to any person of unsound mind an electric weapon or device or any dangerous weapon , other than an ordinary pocketknife, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss 1, 2, ch. 3285, 1881; RS 2684; GS 3627; RGS 5558; CGL 7744; s. 1, ch. 65-187; s. 750, ch. 71- 136; s. 2, ch. 76-165.

790.18 Selling arms to minors by dealers.-lt is unlawful for any dealer in arms to sell to minors any pistol , Springfield rifle or other repeating rifle , bowie knife or dirk knife , brass knuckles , slungshot, or electric weapon or device, and every person violating this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 11 , ch. 6421 , 1913; RGS 5559; CGL 7745; s. 751 , ch. 71 - 136; s. 2, ch. 76- 165.

790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.-Whoever, wantonly or maliciously, shoots at, within , or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied , or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is

being used or occupied by any person , or any boat , vessel , ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

Hlstory.-s. 2, ch. 3281, 1881; RS 2696; ss. 1, 2, ch. 4987, 1901; ss. 1, 2, ch. 4988, 1901 ; GS 3628; RGS 5560; CGL 7746; s. 1, ch. 59-458; s. 752, ch. 71- 136; s. 1, ch. 74-67.

790.22 Use of BB guns, air or gas-operated guns, electric weapons or devices, or firearms by child under 16; limitation.-

(1) The use for any purpose whatsoever of BB guns, air or gas- operated guns, electric weapons or devices, or firearms as defined in s. 790.001 by any child under the age of 16 years is prohibited unless such use is under the supervision and in the presence of an adult.

(2) Any adult responsible for the welfare of any child under the age of 16 years who knowingly permits such child to use or have in his possession any BB gun , air or gas-operated gun , electric weapon or device, or firearm in violation of the provisions of subsection (1) of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 1, 2, ch . 26946, 1951 ; s. 8, ch . 69- 306; s. 753, ch. 71-136; s. 2, ch. 76-1 65.

790.221 Possession of short-barreled rifle, shortbarreled shotgun, or machine gun; penalty.-

(1) It is unlawful for any person to own or to have in his care, custody, possession , or control any shortbarreled rifle , short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms .

(2) Any person convicted of violating this section is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary not to exceed 5 years .

(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted .

History.- s. 10, ch. 69-306.

790.225 Self-propelled knives; unlawful to manufacture, sell, or possess; forfeiture; penalty.-

(1) It is unlawful for any person to manufacture, display, sell , own , possess, or use a self-propelled knife which is a device that propels a knifelike blade as a projectile by means of a coil spring, elastic material , or compressed gas . A self-propelled knife is declared to be a dangerous or deadly weapon and a contraband item. It shall be subject to seizure and shall be disposed of as provided in s. 790.08(1) and (6) .

(2) This section shall not apply to any device which propels an arrow, a bolt , or a dart by means of any common bow, compound bow, crossbow, or underwater spear gun.

(3) Any person violating the provisions of subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 85-258.

790.23 Felons; possession of firearms or electric weapons or devices unlawful; exception; penalty.-

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(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.

(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.

(3) Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hlatory.-ss. 1, 2, 3, ch . 29766, 1955: s. 1, ch. 63-31 : s. 9, ch. 69-306: s. 754, ch. 71-136: s. 1, ch. 71-318: s. 169, ch. 71-355: s. 2, ch. 76-165.

790.24 Report of medical treatment of gunshot wounds; penalty for failure to report.-Any physician, nurse, or employee thereof and any employee of a hospital, sanitarium, clinic, or nursing home knowingly treating any person suffering from a gunshot wound or other wound indicating violence, or receiving a request for such treatment, shall report the same immediately to the sheriff's department of the county in which said treatment is administered or request therefor received. Any such person willfully failing to report such treatment or request therefor is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Hlatory.-s. 1, ch. 59-35: s. 755, ch. 71-136.

790.25 Lawful ownership, possession, and use of firearms and other weapons.-

(1) DECLARATION OF POLICY.-The Legislature finds as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property, and the use by United States or state military organizations, and as otherwise now authorized by law, including the right to use and own firearms for target practice and marksmanship on target practice ranges or other lawful places, and lawful hunting and other lawful purposes.

(2) USES NOT AUTHORIZED.-(a) This section does not authorize carrying a con

cealed weapon without a permit, as prohibited by ss. 790.01 and 790.02.

(b) The protections of this section do not apply to the following:

1. A person who has been adjudged mentally incompetent, who is addicted to the use of narcotics or any similar drug, or who is a habitual or chronic alcoholic, or a person using weapons or firearms in violation of ss. 790.07-790.12, 790.14-790.19, 1790.21-790.24;

2. Vagrants and other undesirable persons as de-fined in 2s. 856.02;

3. A person in or about a place of nuisance as defined in s. 823.05, unless such person is there for law enforcement or some other lawful purpose.

3(3) LAWFUL USES.-The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following per-

sons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

(a) Members of the Militia, National Guard, Florida State Guard, Army, Navy, Air Force, Marine Corps, Coast Guard, organized reserves, and other armed forces of the state and of the United States, when on duty, when training or preparing themselves for military duty, or while subject to recall or mobilization;

(b) Citizens of this state subject to duty in the Armed Forces under s. 2, Art. X of the State Constitution, under chapters 250 and 251, and under federal laws, when on duty or when training or preparing themselves for military duty;

(c) Persons carrying out or training for emergency management duties under chapter 252;

(d) Sheriffs, marshals, prison or jail wardens, policemen, Florida highway patrolmen, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers and their deputies and assistants and full-time paid peace officers of other states and of the Federal Government who are carrying out official duties while in this state;

(e) Officers or employees of the state or United States duly authorized to carry a concealed weapon;

(f) Guards or messengers of common carriers, express companies, armored car carriers, mail carriers, banks, and other financial institutions, while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state;

(g) Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors' gun shows, conventions, or exhibits;

(h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;

(i) A person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person while engaged in the lawful course of such business;

(j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place;

(k) A person firing weapons in a safe and secure indoor range for testing and target practice;

(I) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person 's manual possession;

(m) A person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his home or place of business or to a place of repair or back to his home or place of business;

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