In re Standard Jury Instructions in Criminal Cases—Report 2019-01

• Decision Date: 19 December 2019
• Docket Number: No. SC19-419,SC19-419
• Citation: 285 So. 3d 1248
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-01.
• Court: Florida Supreme Court

285 So.3d 1248 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-01.

No. SC19-419

Supreme Court of Florida.

December 19, 2019

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 standard jury instructions 3.6(f) and 3.6(g) and asks that the Court authorize the amended standard instructions for publication and use.We have jurisdiction.Seeart. V, § 2(a), Fla. Const.

In In re Standard Jury Instructions in Criminal Cases—Report 2017-07 , 257 So. 3d 908(Fla.2018), we authorized for publication and use amendments to standard criminal jury instructions 3.6(f)(Justifiable Use of Deadly Force)and 3.6(g)(Justifiable Use of Non-Deadly Force).We also referred instruction 3.6(f) back to the Committee for consideration of whether the common law "castle doctrine" should be added to the instruction to cover the situation in which the defendant is in his or her place of business and is engaged in criminal activity, seeRedondo v. State , 380 So. 2d 1107, 1110-11(Fla. 3d DCA1980)(adopting the rule that a defendant is under no duty to retreat prior to using deadly force in self-defense when attacked in his or her place of employment while lawfully engaged in his occupation), quashed in part on other grounds , 403 So. 2d 954(Fla.1981);Frazier v. State , 681 So. 2d 824, 825(Fla. 2nd DCA1996)(agreeing with the Third District Court of Appeal that the "castle doctrine" applies to the workplace, citing Redondo), as suggested by the Florida Public Defender Association in its comment in that earlier case.

The Committee, after having published its proposals in The Florida Bar News and having received one comment, filed its report with the Court proposing amendments to both instructions 3.6(f) and 3.6(g).In its report, the Committee explains that

[a] question arises as to whether this extension [of the "castle doctrine"] applies if the person were engaged in criminal activity.Notably, §§ 776.012(2)and776.031(2), Fla. Stats., state: "A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.(emphasis added).If the courts apply the plain language of these statutes, then a convicted felon, who unlawfully possesses a firearm while working in his place of business, has a duty to retreat before using deadly force because he is engaged in criminal activity.However, if the Redondo and Frazier case law applies, despite the employee engaging in criminal activity, the convicted felon, who was otherwise working at his job lawfully, would not have a duty to retreat before using deadly force.

A majority of the Committee did not believe that the case law that extends the "castle doctrine" into a place of employment survives the Stand Your Ground statutes if the defendant was engaged in criminal activity.Because this Court has not addressed this specific point of law, the Committee instead proposes amending instruction 3.6(f) to bring this issue to the attention of the courts and lawyers.

We agree with the Committee that a standard jury instruction case is not the proper means in which to resolve a substantive issue of law.Rather, absent clarification by the legislature, that matter must await this Court's resolution in an actual case and controversy.See, e.g. , In re Std. Jury Instrs. in Criminal Cases—Report 2018-04 , 257 So. 3d 370, 372(Fla.2018);In re Std. Jury Instrs. in Criminal Cases—ReportNo. 2015-08 , 194 So. 3d 1007(Fla.2016);In re Std. Jury Instrs. in Criminal Cases—Instruction 14.2 , 140 So. 3d 992(Fla.2014);In re Std. Jury Instrs. in Criminal Cases—ReportNo. 2011-03 , 95 So. 3d 868, 869(Fla.2012);In re Std. Jury Instrs. in Criminal Cases—Report 2011-04 , 85 So. 3d 1090, 1091 n.1(Fla.2012);In re Std. Jury Instrs. in Criminal Cases—ReportNo. 2007-5 , 982 So. 2d 1160(Fla.2008).Accordingly, instruction 3.6(f) is amended to include two italicized notes alerting courts and litigants of the issue.The first new paragraph is included in the section under section 776.013(1), and provides as follows:

Before the latest Chapter 776statutes went into effect, case law such as De La Hoz v. State, 997 So. 2d 1198(Fla. 3d DCA2008) extended the Castle Doctrine to people in their place of employment while lawfully engaged in their occupations.If this extension of the Castle Doctrine is still valid, a person in his or her place of employment while lawfully engaged in his or her occupation has no duty to retreat before using or threatening to use deadly force, even if he or she was otherwise engaged in criminal activity.The paragraph below can be modified to include a person in his or her place of employment while lawfully engaged in his or her occupation.

The second is added to the italicized note above the paragraph pertaining to danger, and provides "If the Castle Doctrine for a person in his or her place of employment still applies, the paragraph below should be modified to include a person in his or her place of employment while lawfully engaged in his or her occupation ."

In addition to the above-described amendment to instruction 3.6(f), both instructions 3.6(f) and 3.6(g) are amended to include the definition for "great bodily harm," consistent with prior decisions to provide as follows: " ‘Great bodily harm’ means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises."See, e.g. , In re Std. Jury Instrs. in Criminal Cases—Report 2018-14 , 267 So. 3d 980(Fla.2019)(authorizing instructions 3.3(d), 8.5(a), 16.5, 21.14, and 29.24 to include the definition);In re Std. Jury Instrs. in Criminal Cases—Report 2018-09 , 262 So. 3d 59, 67, 70(Fla.2019)(authorizing instructions 7.9 and 16.12 to include the definition);In re Std. Jury Instrs. in Criminal Cases—Report 2018-06 , 260 So.3d 941, 942(Fla.2018)(authorizing instructions 15.1, 15.2, and 15.3 to include the definition);In re Std. Instrs. in Criminal Cases—Report 2018-05 , 257 So. 3d 925(Fla.2018)(authorizing instructions 13.1, 13.3, and 13.4 to include the definition).We reject the Committee's abbreviated definition proffered without explanation for the necessity to deviate from the previously authorized version.

Having considered the Committee's report, the comment, and the Committee's response thereto, we authorize for publication and use amended instructions 3.6(f) and 3.6(g)as modified and as set forth in the appendix to this opinion.¹New language is indicated by underlining, and deleted language is indicated by struck-through type.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.We further 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.The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

APPENDIX

3.6(f) JUSTIFIABLE[USE][OR][THREATENED USE] OF DEADLY FORCE

Because there are many statutes applicable to self-defense, give only those parts of the instructions that are required by the evidence.However, uUnless the evidence establishes the force or threat of force was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given.Mathis v. State, 863 So.2d 464(Fla. 1st DCA2004).Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law.Hosnedl v. State, 126 So.3d 400(Fla. 4th DCA2013).

§ 782.02, Fla. Stat., and many statutes within Chapter 776 address the justifiable use or threatened use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand-your-ground/no duty to retreat.Additionally, § 776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling and had the right to be there while §§ 776.012(1), and776.031(2), Fla. Stats., cover other situations.Judges should use great caution in deciding which statutes apply and which parts of the instruction are required to be given.

It is a defense to the crime[s] of(name[s] of relevant crime[s], including lesser-included offenses)if the actions of(defendant)constituted the justifiable [use][or][threatened use] of deadly force."Deadly force" means force likely to cause death or great bodily harm."Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Section 782.02, Fla. Stat., and many statutes within Chapter 776 address the justifiable use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand your ground/no duty to retreat.Additionally, § 776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling and had the right to be there while § 776.012(1), and§ 776.031(2), Fla. Stat., cover other situations.The Committee advises lawyers and judges to use great caution in deciding which statute or statutes apply.

Give if applicable.§ 782.02, Fla. Stat.

The use of deadly force is justifiable if(defendant)reasonably believed that the force was...