NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

GARY LEROY LUCAS, ) ) Appellant, ) ) v. ) Case No. 2D14-4211 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed April 22, 2016. Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Gary Leroy Lucas appeals his judgment and ten-year prison sente nce for leaving the scene of an accident, fleeing and attempting to elu de a police officer, and burglary of an unoccupied structure. See §§ 316.063(1), 316.19 35(1), 810.02(1)(B)(4), Fla. Stat. (2013). Because the trial court erred in refusing t o instruct the jury on a- 2 - permissive lesser included offense, we reverse the conviction f or fleeing and attempting to elude a police officer and remand for a new trial on that ch arge. We affirm, without further discussion, on the other issues Mr. Lucas raised. The officer testified at trial that as he drove up to a church to respond to a possible burglary, he saw Mr. Lucas get into a truck. The offi cer activated the emergency lights of his patrol car to alert Mr. Lucas of his pr esence. He was in full uniform, wearing a gun belt and badge. He approached the truck and directed Mr. Lucas to shut off the truck and step out. Mr. Lucas hesitated. After several more commands from the officer, Mr. Lucas put his truck in reverse, accelerated, backed it into a power pole, and drove off. Responding to the officer’s BOLO ("be-on-the-lookout" alert), another officer soon st opped Mr. Lucas. The first offi cer arrested Mr. Lucas for fleeing to elude and leaving the scene of a crash. The trial j udge read the jurors the standard jury instruction for fleeing to elude a law enforcemen t officer 1 : To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt: 1. Gary Lucas was operating a motor vehicle upon a street or highway in Florida. 2. A duly authorized law enforcement officer ordered the defendant to stop or remain stopped. 3. Gary Lucas, knowing he had been ordered to stop by a duly authorized law enforcement officer:

a. willfully refused or failed to stop the vehicle in compliance with the order or

1 In re Standard Jury Instructions in Criminal Cases, 73 So. 3d 1 36, 137-38 (Fla. 2011) (Standard Jury Instruction 28.6, Fleeing to Elude a Law Enforcement Officer, § 316.1935(1), Fla. Stat.).- 3 - b. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer. Mr. Lucas asked the trial court to also instruct the jury on th e category-two permissive lesser included offense of disobeying a law enforcement officer , a violation of section 316.072(3), Florida Statutes (2013). The trial court declined the request. There is no standard jury instruction for a violation of sectio n 316.072(3). That section provides that "[i]t is unlawful and a misdemeanor of the second degree . . . for any person willfully to fail or refuse to comply with any l awful order or direction of any

law enforcement officer . . . ." A trial court must instruct the jury on a category-two lesser i ncluded offense if the defense requests i t, the information alleges its elements, and the State presented proof of those elements at trial. Koch v. State, 39 So. 3d 464, 466 (Fla. 2d DCA 2010) (holding defendant was entitled to have jury instruct ed on disobeying a lawful order by law enforcement as a lesser included offense of fleeing and eluding). Mr. Lucas requested the instruction. The information tracked t he language of section 316.1935(1) (fleeing to elude a law enforce ment officer). Necessarily, therefore, the information alleged the elements of "willfully [failing] or refus[ing] to comply with any lawful order or direction of any law enforcement officer" under section 316.072(3). The State also presented proof of th e lesser offense at trial. Consequently, the trial court should have instructed the jury o n the permissive lesser

offense. We reverse Mr. Lucas' conviction for fleeing and eluding a law enforcement officer and remand for a new trial on that charge. Affirmed, in part, reversed, in part, and remanded.- 4 - CASANUEVA and LUCAS, JJ., Concur.