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of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.



The negligent act or omission must have been committed with an utter



disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.


§ 782.07(2)-(4), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable.


If you find the defendant guilty of manslaughter, you must then



determine whether the State has further proved beyond a reasonable doubt that:






a.


(Victim) was at the time [an elderly person] [a disabled adult] whose death was caused by the neglect of (defendant), a caregiver.






b.


(Victim) was a child whose death was caused by the neglect of (defendant) , a caregiver.






c.


(Victim) was at the time [an officer] [a firefighter] [an emergency medical technician] [a paramedic] who was at the time performing duties that were within the course of [his] [her] employment. The court now instructs you that (official title of victim) is [an officer] [a firefighter] [an emergency medical technician] [a paramedic].


Definitions. Give if applicable.


Child @
means any person under the age of 18 years.


A Elderly person @
means a person 60 years of age or older who is



suffering from the infirmities of aging as manifested by advanced age, organic brain damage, or physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person =
s own care or protection is impaired.






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A
Disabled adult @
means a person 18 years of age or older who suffers



from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person =
s ability to perform the normal activities of daily living.



"Facility" means any location providing day or residential care or



treatment for elderly persons or disabled adults. The term "facility" may


include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.


As applied to an Elderly Person or a Disabled Adult. "Caregiver" means a person who has been entrusted with or has



assumed responsibility for the care or the property of an elderly person or a disabled adult. "Caregiver" includes, but is not limited to, relatives, court- appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.


As applied to a Child. A
Caregiver @
means a parent, adult household member, or other person



responsible for a child =
s welfare.


§ 825.102(3)(a) or § 827.03(3)(a), Fla. Stat. Give 1 or 2 as applicable. "Neglect of [a child"] [an elderly person"] [a disabled adult"] means:









1.



A caregiver =
s failure or omission to provide [a child] [an elderly person] [a disabled adult] with the care, supervision, and services necessary to maintain [a child's] [an elderly person's] [a disabled adult's] physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [child] [elderly person] [disabled adult];



or









2.



A caregiver's failure to make reasonable effort to protect [a child] [an elderly person] [a disabled adult] from abuse, neglect or






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exploitation by another person.



Repeated conduct or a single incident or omission by a caregiver that



results in, or could reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a disabled adult] may be considered in determining neglect.


Definitions. As applied to Designated Personnel. § 112.191 and § 633.35, Fla. Stat.


"Firefighter" means any full-time duly employed uniformed firefighter



employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property therefrom, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertaining to the prevention and control of fires, who is certified by the Division of State Fire Marshal of the Department of Financial Services, who is a member of a duly constituted fire department of such employer or who is a volunteer firefighter.


§ 943.10(14), Fla. Stat. "Officer" means any person employed or appointed as a full-time, part-



time, or auxiliary law enforcement officer, correctional officer, or correctional probation officer.


§ 401.23, Fla. Stat .
"Emergency Medical Technician" means a person who is certified by



the Department of Health to perform basic life support.


§ 401.23, Fla. Stat. "Paramedic" means a person who is certified by the Department of



Health to perform basic and advanced life support.



Lesser Included Offenses



MANSLAUGHTER - 782.07



CATEGORY ONE



CATEGORY TWO



FLA. STAT. INS. NO.


None Vehicular homicide




782.071







7.9


Vessel homicide




782.072







7.9 (Nonhomicide lessers)




777.04(1)







5.1


Attempt





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Aggravated assault




784.021







8.2


Battery




784.03







8.3


Assault




784.011







8.1


Culpable negligence




784.05







8.9


Comment


In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable homicide as previously given should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla. 1965).


In appropriate cases, an instruction on transferred intent should be given.


Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla. 1999), in any manslaughter case in which causation is an issue to determine if a special jury instruction on causation is needed.


To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included offenses require proof of knowing that the commission of the offense was on an officer who was engaged in the lawful performance of a legal duty.

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], and 2006 [946 So.2d 1061] and 2008.
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