In re Standard Jury Instructions in Criminal Cases—Report 2017-06

• Decision Date: 08 February 2018
• Docket Number: No. SC17–1740,SC17–1740
• Citation: 236 So.3d 282 (Mem)
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017–06.
• Court: Florida Supreme Court

236 So.3d 282 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017–06.

No. SC17–1740

Supreme Court of Florida.

[February 8, 2018]

Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee's proposals derive from two referrals by the Court to the Committee. The first referral concerned instructions that pertain to section 782.065, Florida Statutes (2017), and was based upon Ramroop v. State , 214 So.3d 657 (Fla. 2017), in which we held that the State must prove that the defendant knew that the victim was a law enforcement officer (LEO), correctional officer, etc., for the reclassification of a murder or attempted murder charge. New instructions 6.7 (Attempted Murder—Reclassified) and 7.13 (Murder—Reclassified) were proposed in light of Ramroop . The second referral was based upon State v. Spencer , 216 So.3d 481 (Fla. 2017), in which we determined that fundamental error resulted where the instruction for Attempted Manslaughter by Act as read to the jury did not include an instruction on justifiable or excusable attempted homicide. In light of Spencer , the Committee proposed amendments to the following existing attempted homicide and homicide instructions: 6.2 (Attempted First Degree Premeditated Murder); 6.3 (Attempted Felony Murder); 6.3(a) (Attempted Felony Murder—Injury Caused by Another); 6.4 (Attempted Second Degree Murder); 6.6 (Attempted Manslaughter by Act); 7.2 (Murder—First Degree); 7.3 (Felony Murder—First Degree); 7.4 (Murder—Second Degree); 7.5 (Felony Murder—Second Degree); 7.6 (Felony Murder—Third Degree); 7.7 (Manslaughter); and 7.7(a) (Aggravated Manslaughter).

Following publication by the Committee, a comment was received from the Florida Public Defender Association (FPDA). The Court did not publish the proposals after they were filed. The Court authorizes instructions 6.2, 6.3, 6.3(a), 6.4, 6.6, 6.7, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7(a), and 7.13 as proposed, and authorizes instruction 7.7 with modifications. The more significant amendments to the instructions are discussed below.

With regard to the attempted homicide and homicide-related instructions before the Court—6.2, 6.3, 6.3(a), 6.4, 6.6, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, and 7.7(a)—we recognize that in Spencer we held that fundamental error resulted when the defendant's jury was instructed upon attempted manslaughter by act, but the instruction omitted instructions upon justifiable and excusable attempted homicide. Id. , 216 So.3d at 486. To remedy this situation, we amend the above listed instructions to include one of the applicable following italicized sentences at the top of all attempted murder and murder instructions:

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide.

or

In the absence of an express concession that the homicide was not excusable or justified, the trial judge must also read Instruction 7.1, Introduction to Homicide.

In addition, in the context of the attempted manslaughter and manslaughter instructions, the following italicized paragraph is added as a note to the trial judge:

It is fundamental error not to instruct on justifiable attempted homicide and excusable attempted homicide in the absence of an express concession that the attempted homicide was not excusable or justified. See State v. Spencer, 216 So.3d 481 (Fla. 2017).

Turning to the individual instructions, we further amend instruction 6.2 by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), Florida Statutes, as well as the paragraph in the Comments section addressing the enhancement. Instead, a new paragraph is added to the Comments section referencing instruction 6.7 for the section 782.065 reclassification enhancement, in light of Ramroop .

Next, new instruction 6.7 pertains to the reclassification statute, section 782.065, Florida Statutes, and is based upon this Court's decision in Ramroop . In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification:

In Ramroop v. State, 214 So.3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense. Accordingly, the trial judge should add the three elements below to the elements section of the appropriate Attempted Murder crime (See Instruction 6.2, 6.3, 6.3(a), or 6.4.)

Instruction 6.7 then includes the three elements that the jury must find for the reclassification, including that the victim was a law enforcement officer (LEO), etc., that the defendant knew the victim was an LEO, etc., and that the victim was engaged in the lawful performance of a legal duty.

Existing instruction 7.2 is further amended by deleting the paragraph pertaining to "transferred intent" and adding a sentence to the Comments section providing that instruction 3.6(o) be given if the case involves transferred intent. In addition, the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), i.e., the definitions relevant to the enhancement, is deleted, as is the paragraph in the Comments section addressing the enhancement, and a new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification.

Instructions 7.3, 7.4, 7.5, and 7.6 are further amended by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), as is the paragraph in the Comments section addressing the enhancement, and a new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification. The table of lesser included offenses in instruction 7.5 is also amended to delete the asterisk to Manslaughter as a Category One offense, in light of our decision in Dean v. State , 230 So.3d 420 (Fla. 2017), holding that manslaughter is a necessarily lesser included offense of second-degree felony murder. Id. at 424.

With regard to instruction 7.7, while we amend the body of the instruction in light of Spencer , we decline to amend the Comments section to include a sentence providing that "mutual combat resulting in death is Manslaughter" citing to Eiland v. State , 112 So.2d 415 (Fla. 2d DCA 1959).

Finally, new instruction 7.13 covers the reclassification statute, section 782.065, Florida Statutes, and is based upon our decision in Ramroop . In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification:

In Ramroop v. State, 214 So.3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense. Accordingly, the trial judge should add the three elements below to the elements section of the appropriate Murder crime (See Instruction 7.2, 7.3, 7.4, 7.5, or 7.6).

Instruction 7.13 then includes the three elements that the jury must find for the reclassification, including that the victim was an LEO, etc., that the defendant knew the victim was an LEO, etc., and that the victim was engaged in the lawful performance of a legal duty.

Having considered the Committee's report and the comment submitted by FPDA, we authorize for publication and use new and amended instructions 6.2, 6.3, 6.3(a), 6.4, 6.6, 6.7, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7(a), and 7.13, as proposed, and amended instruction 7.7 as modified by the Court, and as set forth in the appendix to this opinion.¹ New language is indicated by underlining, and deleted language is indicated by struck-through type. We caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

6.2 ATTEMPTED MURDER—FIRST DEGREE (PREMEDITATED)

§§ 782.04(1)(a) and 777.04, Fla. Stat.

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide .

To prove the crime of Attempted First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) did some act intended to cause the death of (victim) that went beyond just thinking or talking about it.

2. (Defendant) acted with a premeditated design to kill (victim).

3.The act would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

Definition.

A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be...