In re Standard Jury Instructions in Criminal Cases—Report Number 2013–03, SC13–1254.

• Decision Date: 28 August 2014
• Docket Number: No. SC13–1254.,SC13–1254.
• Citation: 146 So.3d 1110 (Mem)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–03.
• Court: Florida Supreme Court

146 So.3d 1110 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–03.

No. SC13–1254.

Supreme Court of Florida.

Aug. 28, 2014.

Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL, and Judge Joseph Anthony Bulone, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, and Bart Schneider, Senior Attorney, Office of the States Court Administrator, Tallahassee, FL, for Petitioner.

Julianne M. Holt, President, Florida Public Defender Association, Inc., Tampa, FL, Responding with comment.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing four new standard criminal jury instructions and amendments to ten existing standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes that the Court authorize for publication and use new instructions 11.18—Sexual Misconduct by a Psychotherapist; 12.9—Arson Resulting in Injury; 14.10—Failure to Return Hired/Leased Property; and 29.3—Sale of an Alcoholic Beverage to or by a Person Less Than 21 Years of Age on Licensed Premises. The Committee also proposes amending existing criminal jury instructions 7.3—Felony Murder—First Degree; 7.5—Felony Murder—Second Degree; 7.6—Felony Murder—Third Degree; 7.11—Penalty Proceedings—Capital Cases; 12.1—Arson—First Degree; 12.2—Arson—Second Degree; 28.14—Boating Under the Influence; 28.15—Boating Under the Influence Causing Property Damage or Injury; 28.16—Felony Boating Under the Influence; and 28.17—Boating Under the Influence Causing Serious Bodily Injury.

The Committee's proposed amendments modify the existing instructions in a number of ways. Notable changes include: (1) amendment of instructions 7.3, 7.5, and 7.6 to include language for determining whether the felony murder victim was a law enforcement officer, correctional officer, or correctional probation officer engaged in the lawful performance of a legal duty as provided by section 782.065, Florida Statutes (2013) ; (2) amendment of the aggravating circumstances section of instruction 7.11 to include the aggravating circumstances in section 921.141(5)(c), Florida Statutes (2013), pertaining to domestic violence injunctions and protective orders; (3) amendment of instructions 12.1 and 12.2 to include language instructing the jury that the State does not have to prove the defendant intended to cause damage; and (4) deletion of the phrase “that is subject to a license tax for operation” from

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the definition of the word “vessel” in instructions 28.14, 28.15, 28.16, and 28.17.

Before filing its report with the Court, the Committee published its proposals for comment. Comments were received with respect to new instruction 29.3, and the proposed amendments to instructions 12.1, 12.2, 28.14, 28.15, 28.16, and 28.17. After considering the comments, the Committee declined to modify its proposed amendments to instructions 12.1, 12.2, 28.14, 28.15, 28.16, and 28.17. In response to the comment on new instruction 29.3, the Committee modified its proposal.

After the Committee filed its report, one comment was filed with the Court concerning the Committee's proposed amendments to instructions 12.1 and 12.2. Having considered the Committee's report and the comment filed, we authorize for publication and use new instructions 11.18, 12.9, 14.10, and 29.3, and amended instructions 7.3, 7.5, 7.6, 7.11, 12.1, 12.2, 28.14, 28.15, 28.16, and 28.17 as proposed by the Committee.

The instructions, as set forth in the appendix to this opinion, are authorized for publication and use.¹ 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. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

Appendix

7.3 FELONY MURDER—FIRST DEGREE

§ 782.04(1)(a), Fla. Stat.

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

1. (Victim) is dead.

Give 2a, 2b, or 2c as applicable.

2. a. [The death occurred as a consequence of and while (defendant) was engaged in the commission of (crime alleged).] While engaged in the commission of a[n] (felony alleged), [ (defendant) ] [ (defendant's) accomplice] caused the death of (victim).

b. [The death occurred as a consequence of and while (defendant) was attempting to commit (crime alleged).] While engaged in the attempt to commit a[n] (felony alleged), [ (defendant) ] [ (defendant's)

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accomplice] caused the death of (victim).

c. [The death occurred as a consequence of and while (defendant), or an accomplice, was escaping from the immediate scene of (crime alleged).] While escaping from the immediate scene after [committing] [attempting to commit] a[n] (felony alleged), [ (defendant) ] [ (defendant's) accomplice] caused the death of (victim).

Give 3a if defendant actual perpetrator was the person who actually killed the deceased.

3. a. [ (Defendant) was the person who actually killed (victim).]

Give 3b if defendant wasnot actual perpetrator the person who actually killed the deceased.

b. [ (Victim) was killed by a person other than (defendant); but both (defendant) and the person who killed (victim) were principals in the commission of (crime alleged).]

In order to convict the defendantof First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

1. Define the crime alleged. If Burglary, also define crime that was the object of burglary.

2. If 2b above is given, also define “attempt” (see 5.1).

3. If 3b is given, immediately give principal instruction (3.5(a)).

4. Since the statute does not require its proof, it is not necessary to define “premeditation. ”

5. If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla.2007).

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