FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
No. 1D2024-3279
RHONDA CHARMANE JEWELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
On appeal from the Circuit Court for Baker County.
William R. Slaughter, Judge.
September 30, 2026
ROBERTS, J.
This is the most tragic of cases. A beloved child has died, her family is left with an immeasurable loss, and it was Rhonda Jewell’s fault. But it was an accident. This case highlights how imperfect our criminal justice system is to adjudicate an accidental death. There are no winners here; moral outrage is not assuaged. And beneath the tragedy, the issues are legally important.
Appellant Rhonda Jewell seeks review of her convictions for third-degree felony murder and felony leaving a child unattended in a motor vehicle for which she was sentenced to seventeen years in prison. Our review is whether her convictions are legal based on the evidence and the law. We conclude they are not and reverse.
I. Facts
Appellant, herself a mother of three, worked as a nanny in the small community of Macclenny, Florida. She was, by all accounts, a trusted caregiver for several local families including the Paschal family and the family of a ten-month-old baby girl, A.P. Appellant and A.P.’s family were longtime friends; Appellant testified she loved A.P. like her own child.
Appellant’s schedule varied as to what days and times she cared for which children. On July 19, 2023, she planned to care for A.P. along with the Paschal family’s three children at the Paschal home. Ms. Paschal had a morning meeting and asked Appellant to arrive early. Appellant drove to A.P.’s home first and arrived about thirty minutes earlier than usual. A.P.’s mother loaded the baby, who was already strapped in her infant car seat, into the back of Appellant’s 2013 Chevrolet Tahoe. Appellant drove several minutes to the Paschal home. She got out of the Tahoe with her phone, a cup, and a snack, and went inside. She and Ms. Paschal spoke briefly before Ms. Paschal left for the day. At 8:17 a.m., Appellant texted A.P.’s mother: “Just left. Shocker,” which was an inside joke between them about Ms. Paschal’s chronic tardiness. At 8:32 a.m., A.P.’s mother responded, “Very surprised,” and Appellant replied, “Yes!!!” Appellant exchanged a routine text with Ms. Paschal later that morning.
A little after 1 p.m., A.P.’s mother arrived to pick up A.P. Upon opening the door, Appellant became distraught and ran to the Tahoe where a lifeless A.P. was still strapped into her car seat. She had been in the Tahoe for five hours in the sweltering Florida heat. A.P. died from hyperthermia.
Appellant was arrested and charged with aggravated
manslaughter of a child by culpable negligence (count 1) under sections 782.07(1) and (3), Florida Statutes (2023). The State later amended the information to add two charges: third-degree felony murder (count 2) under section 782.04(4), Florida Statutes (2023), and leaving a child unattended in a motor vehicle with great bodily harm (count 3) under section 316.6135(4), Florida Statutes (2023).
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At trial, the interviewing detective testified and characterized Appellant’s interview statement as: “[Appellant] assumed [A.P.] was sleeping because she wasn’t making any noises, so she went on into the house.” But Appellant’s interview was played for the jury. The detective’s theory hinged on this statement by Appellant during her interview:
So I got [to the Paschal home] at 8:15. And the baby was
fine because she was asleep and she’s quiet. And because
I don’t keep her every day, I forgot she was there. So I
went inside, got busy with the other kids, and I did talk
to mom for a (indiscernible) and it just didn’t click that
the baby was out there.
Later in the interview the detective asked Appellant, “But I’m saying you said you noticed that [A.P.] was asleep when you got there.” Appellant responded, “I assumed she was asleep. She didn’t – wasn’t making any noise.”
Ms. Paschal testified a distraught and frantic Appellant called her to return home immediately. Ms. Paschal heard Appellant repeatedly lament that she “forgot” A.P. and question how she could be so stupid. She testified Appellant was crying and throwing up and had urinated on herself. Appellant testified in her defense that she forgot she had A.P. that day; she did not remember A.P. until her mother arrived to pick her up.
The jury acquitted Appellant on aggravated manslaughter by culpable negligence but found her guilty on the remaining counts. The trial court sentenced Appellant to fifteen years in prison on count 2 and two consecutive years in prison on count 3, for a combined seventeen-year sentence.
Appellant raises three issues on appeal. She argues her convictions by a six-person jury violated the Sixth and Fourteenth Amendments. We affirm this issue. Appellant was not entitled to a twelve-person jury because she was not tried for a capital offense. See § 913.10, Fla. Stat.; Williams v. Fla., 399 U.S. 78, 103 (1970). 1
1 The United States Supreme Court recently accepted
certiorari in a case challenging Williams’s holding that a six-person
3
In the remaining issues, Appellant argues her convictions must be reversed because the State had to prove she knowingly left A.P. in a vehicle, which is an essential element of section 316.6135(4) as properly construed. If this Court declines to read knowledge into the statute, she argues her third-degree felony murder conviction must be reversed because felony murder cannot be predicated on a strict liability offense. We interpret section 316.6135(4) to require proof of knowledge and reverse her conviction on count 3 for leaving a child unattended in a motor vehicle with great bodily harm. Because count 2 is predicated on the underlying felony in count 3, we reverse her conviction on count 2 for third-degree felony murder.
II. Section 316.6135(4), Florida Statutes
In count 3, the State charged Appellant with violating section 316.6135(4), Florida Statutes (2023), which provides, in relevant part:
(1) A parent, legal guardian, or other person responsible
for a child younger than 6 years of age may not leave the
child unattended or unsupervised in a motor vehicle:
(a) For a period in excess of 15 minutes;
(2) Any person who violates the provisions of paragraph
(1)(a) commits a misdemeanor of the second degree
punishable as provided in s. 775.082 or s. 775.083.
(4) Any person who violates subsection (1) and in so doing
causes great bodily harm, permanent disability, or
permanent disfigurement to a child commits a felony of
the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
jury is not a violation of the constitution. Kian v. Fla., No. 25-6623, 2026 WL 1718018 (U.S. June 15, 2026).
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Appellant argues the State and the trial court misinterpreted the essential elements of the crime. Our review is de novo. See Statler v. State, 349 So. 3d 873, 878–79 (Fla. 2022) (reviewing issues of statutory interpretation and constitutionality de novo).
Under the State’s interpretation of section 316.6135(4), it only had to prove Appellant caused A.P.’s death by leaving her unattended in the vehicle for more than fifteen minutes. Appellant challenged this interpretation at trial. Appellant requested a special jury instruction, which the trial court rejected. She twice moved for a judgment of acquittal, arguing section 316.6135(4) required proof that she consciously or knowingly left A.P. in the vehicle, which the evidence did not show. The trial court denied the motions for judgment of acquittal. The court’s rulings were premised on its interpretation that section 316.6135(4) did not require any proof of knowledge. The court reasoned that if the legislature had intended to include a mens rea element in the statute, it would have expressly done so. We disagree.
A. Mens Rea
We begin with the language of the statute. Contrary to the trial court’s reasoning, silence is not conclusive proof the legislature intended to dispense with mens rea. See Elonis v. United States, 575 U.S. 723, 734 (2015) (recognizing statutory silence regarding any required mental state should not be read as “dispensing with it”) (quoting Morissette v. United States, 342 U.S. 246, 250 (1952)); Staples v. United States, 511 U.S. 600, 605 (1994) (recognizing silence regarding mental state does not suggest legislative intent to dispense with “a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal”).
History favors interpreting crimes to require some degree of mens rea. In Morissette, Justice Robert Jackson wrote:
The contention that an injury can amount to a crime only
when inflicted by intention is no provincial or transient
notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and
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a consequent ability and duty of the normal individual to
choose between good and evil.
342 U.S. at 250. “The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978) (quoting Dennis v. United States, 341 U.S. 494, 500 (1951)); Rehaif v. United States, 588 U.S. 225, 228–29 (2019) (applying the presumption that criminal statutes require a sufficient degree of knowledge to make a person legally responsible for the consequences of his or her act or omission) (citations omitted). We must construe the statute considering “the background rules” of common law “in which the requirement of some mens rea for a crime is firmly embedded.” Staples, 511 U.S. at 605.
Mens rea or “guilty mind” is somewhat misleading here as “guilty” suggests Appellant intended harm, which no one has claimed. Mens rea can also include knowledge, which is the appropriate consideration in this case. See Elonis, 575 U.S. at 736 (recognizing courts will read in “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’” and, in some cases, “a general requirement that a defendant act knowingly is itself an adequate safeguard”) (citations omitted).
Criminal culpability typically requires both an actus reus and a mens rea. See City of Grants Pass, Or. v. Johnson, 603 U.S. 520, 545 (2024) (“[H]istorically, crimes in England and this country have usually required proof of some act (or actus reus) undertaken with some measure of volition (mens rea).”). Section 316.6135(1) provides that a caregiver “may not leave the child unattended” for more than fifteen minutes. In this phrase, “may not” is a prohibition. The verb, or actus reus, is the act of leaving. 2 “The child” is the object of the
2 The State suggests the actus reus is the initial act of a caregiver putting a child in a vehicle and then failing in her duty of care. This is an illogical construction that would criminalize simple negligence flowing from an innocent act. See, e.g., State v. Smith, 638 So. 2d 509 (Fla. 1994) (recognizing negligence can enhance the
6
action, and “unattended” is an adjective describing the child’s state. “Leave” has several definitions. One definition of leave is “to go out of or away from.” 3 This definition aligns with the State’s interpretation: Appellant exited the vehicle without A.P., regardless of whether she realized she was leaving her behind. But this reading is problematic because it allows for a conviction without any conscious action. Another definition of leave is “to cause or allow to be or remain in a specified state.” 4 This definition aligns with the phrase in question and suggests a decision to leave a child unattended. In other words, an act undertaken with a measure of volition. For example, a circumstance in which a caregiver decides to leave a child to sleep in the car with the intention of returning to get her. We interpret “leave” in section 316.6135(1) to require proof that the initial act of leaving A.P. unattended was done knowingly, consciously, or with volition. This interpretation aligns with the presumption in favor of mens rea without adding any words to the statute.
B. Strict Liability
The State approaches the statute differently. In the State’s view, the legislature defines the elements of a crime and has the power to omit mens rea in matters of public welfare – especially, as here, to protect children. This is all true. The legislature has broad authority to define the elements of a crime, including omitting intent or knowledge. And the legislature has properly done so in the criminal context. See, e.g., Feliciano v. State, 937 So. 2d 818, 819 (Fla. 1st DCA 2006) (upholding the constitutionality of Florida’s statutory rape laws and recognizing statutory rape is a strict liability crime that requires no proof the defendant knew the minor’s age). But the State’s interpretation assumes the legislature
penalty for a willful criminal act, but it would be unconstitutional to criminalize simple negligence alone).
3 See Leave, American Heritage Dictionary of the English Language (5th ed. 2022) https://www.ahdictionary.com /word/search.html?q=leave.
4 Id.
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contemplated guilt without proof of the most basic level of knowledge – that an accused acted knowingly or consciously. Cf. State v. Adkins, 96 So. 3d 412, 424 (Fla. 2012) (Pariente, J., concurring in result) (concurring in the majority’s decision to find Florida’s Comprehensive Drug Abuse Prevention Act constitutional, even though it eliminated knowledge of the illicit nature of the controlled substance as an element, and noting the Act was facially constitutional only because the State still had to prove a defendant had knowledge of the presence of the controlled substance as an element).
Section 316.6135 was originally enacted as a noncriminal traffic offense punishable by fine. In 2007, the legislature enhanced potential punishment to a misdemeanor or felony. The legislature added subsection (4) to make a violation a third-degree felony when a person’s actions cause great bodily harm, permanent disability, or permanent disfigurement. See Ch. 2007-205, § 1, Laws of Fla. The State finds its public purpose in the Staff Analysis to the Senate Bill, which references data on hot car deaths and characterizes such deaths as “predictable and preventable.” See Fla. S. Comm. on Crim. Just., SB 2, Staff Analysis (March 19, 2007).
We find little support for the State’s argument in the legislative history materials. Absent a clear indication, express or implied, that the legislative body intended to convert a former traffic infraction into a strict-liability felony punishable by up to five years in prison, we must read a mens rea element into the statute. See Chicone v. State, 684 So. 2d 736, 743 (Fla. 1996) (“[O]ffenses that require no mens rea generally are disfavored, and . . . some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime.”) (citing Staples, 511 U.S. at 605–606); see also State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004) (recognizing the United States Supreme Court has “virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary”).
Section 316.6135 has no express language dispensing with mens rea. With no express language, the dissent looks for implied legislative intent. Looking at the structure of chapter 316, the dissent concludes the legislature must have intentionally omitted a knowledge requirement in section 316.6135 because other chapter
8
316 criminal provisions routinely incorporate explicit scienter requirements. But the structure of chapter 316 strengthens our interpretation. Most offenses in chapter 316 are non-criminal traffic infractions, many of which are strict liability offenses. See § 316.655, Fla. Stat. (providing that “a violation of any of the provisions” of chapter 316, “except those violations with a specific criminal charge as enumerated in section 318.17, are infractions,” as defined in section 318.13(3)). 5 There are some offenses in chapter 316 punishable by felony imprisonment. Of those, all but four expressly include some degree of mens rea. The exceptions are DUI under section 316.193; impersonating an emergency vehicle and attempting to stop another vehicle under section 316.2397; unapproved large scale fuel transport under section 316.80; and the present statute. DUI is unique in that strict liability felony punishment is an enhancement after an initial violation. Section 316.2397(10)(a) implies a mens rea element for felony punishment when a person improperly displaying emergency lights “effects or attempts to effect a stop of another vehicle.” That leaves section 316.80(1) as the only other “strict liability” felony in chapter 316. Section 316.80, which prohibits transport of non-compliant largescale fuel containers on the highway, is arguably distinguishable because it is a unique regulatory offense.
The structure of chapter 316 highlights an important
distinction. Strict liability punishment is appropriate for offenses that are regulatory, public welfare offenses with small penalties and “no grave damage to an offender’s reputation.” Morissette, 342 U.S. at 256. See also Giorgetti, 868 So. 2d at 519 (holding sex offender registration offense that carried third-degree felony punishment was not a public welfare offense that could be read as a strict liability crime). In contrast, offenses that carry the potential for harsh felony punishment should not be interpreted as dispensing with mens rea absent a clear statement from the legislature. Staples, 511 U.S. at 619 (recognizing the potential for severe punishment as a further factor to suggest Congress did not
5 An “infraction” is “a noncriminal violation that may require
community service hours . . . but is not punishable by incarceration and for which there is no right to a trial by jury or a right to courtappointed counsel.” § 318.13(3), Fla. Stat.
9
intend to eliminate a mens rea requirement). That is not to say the legislature can never make leaving a child unattended a strict liability felony. But given the statutory structure and the absence of any express language to the contrary, we must read section 316.6135(4) to require the State to prove intent. See Giorgetti, 868 So. 2d at 520 (“[I]t must be clear that a legislative body intended to dispense with [mens rea] before courts will assume it is not required.”).
The dissent extensively cites legislative floor debate to conclude the legislature knew it was dispensing with mens rea. As Justice Antonin Scalia recognized, “[L]egislative history has something for everyone.” 6 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 377 (2012). We decline to undermine a fundamental tenet of criminal law based on legislative floor debate.
To prosecute Appellant under section 316.6135(4), the State had to prove beyond a reasonable doubt that she knowingly left A.P. unattended in the vehicle. This reading interprets the statute in a manner that preserves its constitutionality. See Giorgetti, 868 So. 2d at 518 (construing Florida’s sexual offender registration statutes, which did not provide any express direction regarding mental state, to require the State to prove knowledge in a manner consistent with due process); Ramirez v. State, 113 So. 3d 28 (Fla. 2d DCA 2012) (reading section 648.44(8)(a), Florida Statutes (2009), to require knowledge because omitting it would criminalize otherwise innocent conduct, a reading that would render the statute unconstitutional).
6 House floor debate over section 316.6135 shows some lawmakers realized this “strict liability bill” “does not contain the necessary language that is required for its own validity; that this is in fact done willfully, intentionally.” Other lawmakers sought deterrence with the expectation that the criminal justice system would cleave the “good” actors from the “bad” actors. Fla. H.R., recording of proceeding, (May 3, 2007) (available at:
https://thefloridachannel.org/videos/5307-house-session/).
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III. This Case
Appellant requested a special jury instruction that the State had to prove she “knowingly, willfully, and consciously” left A.P. unattended in the vehicle. The trial court denied the request and gave Florida Standard Jury Instruction (Criminal) 16.12, which instructed that the State had to prove four elements beyond a reasonable doubt: (1) Appellant was a person responsible for A.P.; (2) A.P. was younger than six years of age; (3) Appellant left A.P. unattended or unsupervised in a motor vehicle for a period in excess of fifteen minutes; and (4) in so doing, Appellant caused great bodily harm to A.P. This was error.
We review the trial court’s ruling for an abuse of discretion. Shearer v. State, 754 So. 2d 192, 194 (Fla. 1st DCA 2000). Standard jury instructions are frequently used, but the trial court has the ultimate responsibility to charge the jury correctly. See Steele v. State, 561 So. 2d 638, 645 (Fla. 1st DCA 1990) (recognizing the standard jury instructions are a guide to assist trial courts and cannot relieve a court of its responsibility to charge the jury correctly in each case); Chicone, 684 So. 2d at 745 (“A defendant has the right to have a court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.”).
Appellant’s defense was that she did not act knowingly or consciously because she forgot. 7 Knowledge, an essential element of proof in section 316.6135(4), was the only contested issue in this case. The standard instruction mirrors the statutory language and
7 At oral argument the State dismissed her defense as implausible – how could anyone forget a beloved child? Kids and Car Safety, a national nonprofit organization, filed an amicus brief in support of Appellant, arguing strict criminal punishment for unintentional hot car deaths is an ineffective deterrent. It cited data showing over half of hot car deaths between 1990 and 2024 were because a child was unknowingly left in a vehicle. Kids and Car Safety, Child Hot Car Dangers Fact Sheet, https://www.kidsandcars.org/document_center/download/hotcars/Heatstroke-fact-sheet.pdf.
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was insufficient to adequately convey to the jury that the State had to prove a knowing or conscious act. And the State told the jury it did not have to prove intent. Because the instruction reduced the State’s burden of proof on an essential element of the crime and eliminated Appellant’s only defense, Appellant was deprived of a fair trial. See Chicone, 684 So. 2d at 745 (“When an instruction excludes a fundamental and necessary ingredient of law required to substantiate the particular crime, such failure is tantamount to a denial of a fair and impartial trial.”); see also Shearer, 754 So. 2d at 194–95 (reversing a conviction where the statute contained no express or implied legislative intent to omit mens rea such that the trial court should have granted the request for special instruction that the State had to prove the defendant had “willfully and knowingly” acted); Brown v. State, 150 So. 3d 281, 284–85 (Fla. 1st DCA 2014) (reversing conviction where knowledge was presumed element of the crime and the trial court failed to adequately instruct the jury); Siplin v. State, 972 So. 2d 982, 990 (Fla. 5th DCA 2007) (interpreting the statute to require a mens rea requirement and reversing where the jury was instructed they could convict with no mens rea).
The dissent points out Florida’s legal tradition of holding culpable caregivers criminally liable. The dissent cites a factually analogous child neglect prosecution in State v. Brooks, 17 So. 3d 1261 (Fla. 2d DCA 2007), in which the Second District reinstated the jury’s verdict finding a mother guilty of third-degree felony child neglect by culpable negligence. But Brooks does not support reading section 316.6135 as a strict liability offense. Rather, it demonstrates that an avenue exists to punish a forgetful caregiver – criminal negligence. In this case Appellant was charged with aggravated manslaughter by culpable negligence, but the jury found her not guilty on that count. We reverse Appellant’s felony conviction on count 3.
IV. Felony Murder
The charge of third-degree felony murder on count 2 is predicated on guilt in an underlying felony. Because we reverse Appellant’s conviction on count 3, we also reverse her conviction on count 2. And to be clear, it was a fallacy to charge Appellant with third-degree felony murder based on what the State believed was
12
an underlying felony that did not require it to prove any intent. Even if we agreed with the State that section 316.6135 did not require it to prove knowledge, we would still reverse Appellant’s conviction for felony murder. Third-degree felony murder cannot be based on an unenumerated predicate felony that does not require any proof of intent.
In Mahaun v. State, 377 So. 2d 1158 (1979), the Florida Supreme Court upheld the constitutionality of third-degree felony murder in section 782.04(4), Florida Statutes. In so doing, the Court stated:
Any felony murder charge must be based upon an
underlying felony. Thus, while intent to cause death is
not an element of the felony murder, the intent
requirement of the underlying felony must nonetheless be
proven.
Id. at 1160.
Third-degree felony murder is constitutional because it relies on the transferred intent from the underlying felony. By stacking the charges the way it did, the State was able to obtain a murder conviction based on Appellant’s admissions alone without any proof of intent.
V. Conclusion
Section 316.6135(4) must be read to include a knowledge requirement. Because the jury was instructed that it could convict Appellant with no mens rea, we reverse Appellant’s conviction on count 3. We also reverse her conviction on count 2 because it is predicated on count 3. We remand to the trial court for a new trial on count 3 before a jury properly instructed on the statute.
AFFIRMED in part, REVERSED in part, and REMANDED.
BILBREY, J., concurs; OSTERHAUS, C.J., concurs in part and dissents in part with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
OSTERHAUS, C.J., concurring in part and dissenting in part.
I concur with the results reached by my colleagues except for their conclusion on count 3. On that count, I don’t think it is correct to apply a common law scienter presumption about legislative intent in the face of textual evidence in chapter 316 and a concrete legislative record contravening the presumption. Because the text and history of § 316.6135 demonstrate a deliberate choice by the Legislature to omit a scienter requirement from the statute, I see no jury instruction problem here. I would affirm the judgment and sentence on count 3.
To be sure, this is a heartbreaking case and horribly lifechanging for everyone involved. A baby girl died under preventable circumstances because her distracted caregiver forgot for hours to retrieve her from a July-hot car in Baker County, Florida.
A Florida Uniform Traffic Control Law addresses
circumstances like these and imposes criminal penalties on culpable caregivers. The law says:
(1) A parent, legal guardian, or other person responsible
for a child younger than 6 years of age may not leave the
child unattended or unsupervised in a motor vehicle:
(a) For a period in excess of 15 minutes; [or]
(b) For any period of time if the motor of the vehicle is
running, the health of the child is in danger, or the child
appears to be in distress.
(2) Any person who violates the provisions of paragraph
(1)(a) commits a misdemeanor of the second degree
punishable as provided in s. 775.082 or s. 775.083.
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* * *
(4) Any person who violates subsection (1) and in so
doing causes great bodily harm, permanent disability, or
permanent disfigurement to a child commits a felony of
the third degree[.]
§ 316.6135, Fla. Stat. (2023). Appellant was the culpable caregiver here.
Appellant’s defense to the State’s § 316.6135(4)-based prosecution was that she forgot about the baby in the back seat of her car. She argues that because she unintentionally left the baby in the hot car, the criminal statute cannot be applied to her. But the trial court rejected Appellant’s interpretation of this statute. It decided that the State was only required to prove under § 316.6135 that the caregiver left the baby in the car for more than fifteen minutes causing her death, irrespective of whether she did so knowingly. And so, now, on appeal, we must determine whether the Legislature intended § 316.6135 to contain a guilty-knowledge, scienter requirement that is absent from the statute’s text.
“[D]etermining whether scienter is an essential element of a statutory crime is a question of legislative intent.” Chicone v. State, 684 So. 2d 736, 741 (Fla. 1996). We look first to the statute’s plain language. State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004). In this case, the Legislature defined the crime in § 316.6135 without including a guilty knowledge requirement, which was perfectly permissible. “Given the broad authority of the legislative branch to define the elements of crimes, the requirements of due process ordinarily do not preclude the creation of offenses which lack a guilty knowledge element.” State v. Adkins, 96 So. 3d 412, 417 (Fla. 2012) (citing United States v. Balint, 258 U.S. 250, 251 (1922)). The Legislature was free to enact the law with or without any requirement for intent or knowledge in the definition of the crime. Giorgetti, 868 So. 2d at 515.
But when courts confront a criminal statute without a mens rea element, they “ordinarily presume” that the Legislature intended it to contain a knowledge requirement, unless there are
15
contrary indications of legislative intent. Id. at 516; see also United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978) (“[T]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” (quoting Dennis v. United States, 341 U.S. 494, 500 (1951))). The majority has employed this ordinary presumption by holding that § 316.6135 contains an unwritten scienter element that requires proof that Appellant initially left the baby unattended “knowingly, consciously, or with volition.” 1
I don’t think the majority is correct to inject the mens rea presumption into the statute here. Indeed, there is strong contrary evidence that the Legislature deliberately enacted § 316.6135 without a scienter requirement, creating a strong-medicine strict liability statute to combat the alarming number of deaths of small children left in hot cars. And if the Legislature intended to omit a guilty knowledge requirement in § 316.6135 then we are obliged to respect its authority to do so.
The first reason I conclude that the Legislature intended § 316.6135 to apply to forgetful caregivers is because of the absence of an express scienter requirement in the statute. Of course, “we begin, as always from the premise that in construing [a] statute, [courts] must give the statutory language its plain and ordinary meaning, and is not at liberty to add words that were not placed there by the Legislature.” Statler v. State, 349 So. 3d 873, 879 (Fla. 2022) (quotations omitted). It is irregular for a criminal provision in chapter 316 to altogether omit a scienter requirement. In Statler, the Florida Supreme Court rejected the notion “that the Legislature would create a requirement of specific knowledge by omission in one section of chapter 794 when it affirmatively and expressly included such a requirement elsewhere in the same statute.” Id. at 880–81. As with chapter 794, the criminal provisions in chapter 316
1 Section 316.6135 does not criminalize leaving a child unattended in a vehicle if the child is retrieved within fifteen minutes (so long as the motor is not running). In this case, there was mixed evidence about whether Appellant knowingly left the baby unattended in the car initially but no evidence that she meant to leave the baby in the car for as long as she did.
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routinely incorporate explicit scienter requirements. See, e.g., § 316.027 (third degree felony to “willfully” leave the scene of a crash); § 316.067 (second degree misdemeanor to give a false report “knowing or having reason to believe that such information if false”); § 316.192(3) (third degree felony to drive with “willful or wanton” disregard for safety and cause serious bodily injury); § 316.1935 (third degree felony to “willfully” flee to elude an officer). And so, when a scienter requirement is omitted from a 316 provision, as with the DUI manslaughter law in § 316.193(3), we should not presume to read one into it. See Leocal v. Ashcroft, 543 U.S. 1, 7–8 (2004) (noting that § 316.193(3)(c)(2), which makes it a third-degree felony for a person to cause serious bodily injury while operating a vehicle while under the influence requires proof of causation of injury, “does not require proof of any particular mental state”) (citing State v. Hubbard, 751 So. 2d 552, 564–565 (Fla. 1999)). Thus, for the same reason identified in Statler, the language and structure of chapter 316’s scheme support the conclusion that the Legislature intentionally omitted a guilty knowledge requirement in § 316.6135. 2
2 With vehicle-related deaths in particular, the Florida Supreme Court has noted the Legislature’s prerogative in creating strict liability crimes:
[I]s it rational for the legislature to impose criminal
sanctions for any death which occurs without regard to
the tort law concept of proximate causation between
operation of the automobile and the death? If the
legislature can reasonably conclude that such a measure
operates as a deterrent to those who create a recognized
and serious social problem, then certainly it is. Although,
as noted, legal scholars have questioned the efficacy of the
deterrent effect of strict liability statutes, an argument
can be made that the presence of strict liability sanctions
for a particular activity has the effect not only of inducing
persons to engage in that activity with greater caution,
but may also have the effect of keeping a relatively large
class of persons from engaging in the conduct at all. This
thesis cannot be proved empirically, but neither can the
position of the opponents of strict criminal liability.
17
The legislative purpose to leave out a scienter requirement from § 316.6135 is further bolstered by the legislative history. 3 In 2007, the Florida Legislature fiercely debated the absence of an intent requirement in the bill amending § 316.6135 to include a felony penalty, its application to forgetful caregivers, and whether it should include a volitional scienter standard. See Fla. H.R., recording of proceeding (May 3, 2007) (available at
https://thefloridachannel.org/videos/5307-house-session/). House members were divided on the bill (Senate Bill 2) specifically
Baker v. State, 377 So. 2d 17, 20 (Fla. 1979).
3 When a criminal statute omits a guilty knowledge element,
the United States Supreme Court examines legislative history to determine Congress’s intent before applying the common law scienter presumption. See, e.g., Rehaif v. United States, 588 U.S. 225, 236 (2019) (applying the scienter presumption where the legislative history was “at best inconclusive”); see also id. at 258–59 (Alito, J. dissenting) (noting that it is appropriate for courts to examine both the text and legislative history to determine whether a legislative body intended to omit a scienter requirement (citing Liparota v. United States, 471 U.S. 419, 425 (1985))); United States v. X-Citement Video, Inc., 513 U.S. 64, 73–78 (1994) (evaluating legislative history at length to determine if Congress intended part of an obscenity statute to include a scienter requirement); see also id. at 82-83 (Scalia, J. dissenting) (decrying the majority’s injection of a scienter requirement that departed from the text and the “dominant view” expressed in the legislative history—a statement from the Carter Administration’s Justice Department, which introduced the original bill); Liparota, 471 U.S. at 424-25 (“Absent indication of contrary purpose in the language or legislative history of the statute, we believe that § 2024(b)(1) requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations.” (emphasis added)); United States v. Dotterweich, 320 U.S. 277, 280–85 (1943) (concluding based on the history and regulatory goals of the Food, Drug, and Cosmetic Act of 1938 that a company president could be held liable for misbranded drugs without personal knowledge of the violation).
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because it would make criminals of negligent, forgetful, and mistaken caregivers. And it ended with a pretty close vote. In framing this debate, Representative Simmons, for example, viewed Senate Bill 2 to have a “serious problem” because it “does not contain language . . . that this is in fact done willfully [or] intentionally. [It] places an almost an absolute standard, a strict liability standard on someone if the child is injured. . . . Do you put [offending parents] in jail since it’s a third-degree felony so that now the child has no parent?” Id. at 6:07:13 et seq. Simmons argued that the bill should come back next year with language that is changed “so that we’re not going to have it affecting people who are basically just simply negligent, putting them in jail because . . . they are negligent.” Id. Likewise, Representative Evers agreed that the bill should come back next year because of the serious penalties involved against good parents who have “a bad moment.” Id. at 6:16:23 et seq. And Representative Glorioso opined that “[t]his bill does not look at just saving lives, it looks at punishing people. . . . What I worry about this bill is that we will be punishing someone who [is] forgetful.” Id. at 6:27:34 et seq.
But supporters of Senate Bill 2 argued for passing the strict regime without diluting it. Representative Thompson noted that intentional child abuse was already in law as a third-degree felony but that more was needed to protect children left in cars. Id. at 6:09:27 et seq. Similarly, Representative Richardson acknowledged and embraced the bill’s criminalization of caregiver negligence:
“[t]his bill is about child protection. . . . If you’re concerned
with negligent parents and them being made criminals,
then you’re focusing on the wrong thing. Because
responsible parents are never going to put themselves in
a situation where their children are left in danger. We’re
trying to protect the hundreds of children in this state
who have died because we didn’t get the parents attention
on this issue. . . . We need to get the attention of
Floridians about what’s going on here. . . . When people
start having to account for their actions in a court of law
that will get people’s attention. And children under six
years of age will be protected. Should we wait a year . . .
I don’t think so.”
19
Id. at 6:18:25 et seq.
Other legislators, too, chimed in to support the strict liability bill. This included Representative Taylor, who acknowledged that the “good bill” would “increas[e] the penalty for someone who negligently leaves their child in a car [because] we’ve seen children die from this.” Id. at 6:23:33 et seq. Representative Skidmore stated that “[t]his is the kind of thing that educates parents on what the right thing is to do. Look before you lock! That’s what this is about. It’s about making sure that you haven’t made a mistake. It’s about educating people so that they don’t forget that they’ve left their child in the car.” Id. at 6:23:46 et seq. According to Representative Ford “[i]t doesnt matter if we’re talking about bad, average, or forgetful [parents]. We’re talking about someone who does not take care of a child. . . . I urge you to support this bill.” Id. at 6:25:06 et seq. The House subsequently passed Senate Bill 2 on a relatively close vote—67 Yeas to 46 Neas.
On the Senate side, there was much less scienter-related debate. See Fla. S., recording of proceeding (April 18, 2007) (available at https:// thefloridachannel.org/videos/41807-senatesession/). But Senator Argenziano, did express “real concern with . . . making it a third-degree felony for a parent who might have inadvertently [left a child in the car instead of] . . . something directed at willfully and you could prove that someone left their child in the car . . . that would make it different for me.” Id. at 43:45 et seq. And Senator Bullard followed by expressing a view that intentionality was required and that the judicial system would sort it out. Id. at 45:19 et seq. In the end, the debate evidence showed the Legislature to be fully aware of the mens rea issue raised by the bill’s text and to have made a deliberate choice to omit a knowledge requirement from § 316.6135.
In addition to the debate evidence, the Senate Criminal Justice Committee Staff Report on Senate Bill 2 cited the deaths of hundreds of children injured or killed in and around vehicles and a study attributing most hot car deaths to forgetful parents. Fla. S. Comm. on Crim. Justice., SB 2 (2007), Staff Analysis (March 19, 2007) (available at https://www.flsenate.gov/Session/Bill/2007/2/ Analyses/20070002SCJ_2007s0002.cj.pdf). In particular, the Staff Report cited a 2005 study of 171 child fatalities in the United States
20
which reported over half of unattended deaths occurred “when adults forgot or were unaware of the child. . . . Usually, the children were not found until the parent returned to the vehicle at the end of the day, or the other parent went to retrieve the child from child care.” A. Guard and S.S. Gallagher, Heat Related Deaths to Young Children in Parked Cars: An Analysis of 171 Fatalities in the United States, 1995 – 2002, Injury Prevention (2005) (available at https://pmc.ncbi.nlm.nih.gov/articles/instance/1730172/pdf/v011p0 0033.pdf). That the study identified forgetfulness as the predominant cause of hot-car deaths, and sketched a typical scenario matching the exact facts of this case, further supports the conclusion that the Legislature intended § 316.6135 to apply to cases like this one. Indeed, it would make little sense for the statute to carve out the root cause of most deaths by excluding forgetful caregivers from the statute’s reach. See Balint, 258 U.S. at 251–252 (disregarding the common law scienter rule where the legislative purpose underlying the statute “would be obstructed by such a requirement”).
Nor does affirming count 3 in this case diverge from Florida’s legal tradition. Cf. Statler, 349 So. 3d at 881 (citing a “long commonlaw tradition” as a basis for treating rape as a general intent crime). No identified legal tradition compels the application of a guiltyknowledge standard when a child is placed in a life-threatening situation by a caregiver and then forgotten. In fact, Appellant’s count 3 conviction closely resembles a child neglect case brought under § 827.03, Florida Statutes (2007), the same year as the amendment to § 316.6135. In State v. Brooks, the Second District reinstated a jury verdict where a mother left her nine-month-old and two-year-old children unattended in a bathtub. 17 So. 3d 1261 (Fla. 2d DCA 2009). With the bathwater running, the mother left the bathroom to speak briefly to an aunt in another room with the intent of immediately returning to her kids. But she got caught up in the conversation and forgot to return. “Sometime between fifteen and forty minutes later, [the mother] saw water just outside the bathroom doorway and ran into the bathroom where she found her children in the overflowing tub. Her infant son was blue and face down in the water.” Id. at 1262. On these tragic facts, the Second District found the evidence legally adequate to support the charge of child neglect by culpable negligence, a third-degree felony. Id. With this case in view, the Legislature’s 2007 decision to omit a
21
knowledge requirement from § 316.6135 creates a familiar legal result. In both cases the caregivers were judged criminally liable by juries for placing the children under their care in life-threatening situations and then leaving them, which is exactly what the Legislature aimed to prevent in § 316.6135. See Fla. S., recording of proceedings, at 57:58 (April 18, 2007) (available at https://thefloridachannel.org/videos/41807-senate-session/) (billsponsoring Senator Dawson closed on SB 2 by referencing a newspaper account about infant kids left alone in a bathtub). 4
Finally, I find instructive Justice Canady’s plurality opinion in State v. Adkins addressing due process arguments related to the omission of a guilty-knowledge element from the controlled substances law, § 893.13. 96 So. 3d 412 (Fla. 2012). In a limited set of cases the omission of a scienter element from the definition of a criminal offense has been held to violate due process. Id. at 420– 422. But neither Adkins nor this case involve such issues like criminalizing otherwise entirely innocent and passive conduct, see Lambert v. California, 355 U.S. 225 (1957) & Giorgetti, 868, So. 2d at 519; criminalizing conduct protected by the First Amendment, see Smith v. California, 361 U.S. 147 (1959) & X-Citement Video, 513 U.S. at 78; criminalizing innocuous conduct, see Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991); or criminalizing conduct in a way that impinges on protected property rights, see In re Forfeiture 1969 Piper Navajo, 592 So. 2d 233, 235 n.6 (Fla. 1992).
For all of these reasons, I would affirm the judgment on Count 3.
4 “Long ago, the United States Supreme Court recognized that
strict liability offenses would commonly be ‘found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.’” Statler, 349 So. 3d at 884 (quoting United States v. Balint, 258 U.S. 250, 252 (1922)).
22
Christine Monta, pro hac vice, of Roderick & Solange MacArthur Justice Center, Washington D.C.; Krista Ann Dolan of Southern Poverty Law Center, Tallahassee, for Appellant.
Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Amicus Curiae Kids and Car Safety.
Aliza Hochman Bloom of Northeastern University School of Law, Boston, MA; Caitlin Glass of Antiracism and Community
Lawyering, Boston University School of Law, Boston, MA, for Amici Curiae The Sentencing Project and Seven Individual Law Professors.
James Uthmeier, Attorney General, and Daren Larry Shippy, Assistant Attorney General, Tallahassee, for Appellee.
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