Standard Inst. in Crim. Cases No. 2007-03

Decision Date06 March 2008
Docket NumberNo. SC07-705.,SC07-705.
PartiesIn re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES — REPORT NO. 2007-03.
CourtFlorida Supreme Court

Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, Florida, for Petitioner.

R. Blaise Trettis, Executive Assistant Public Defender, 18th Judicial Circuit, Viera, Florida, Jay Thomas, Staff Attorney, Second District Court of Appeal, Lakeland, Florida, and Lee G. Cohen, Assistant State Attorney, Eighteen Judicial Circuit, Fort Lauderdale, Florida, Responding with comments.

PER CURIAM.

We have for consideration thirteen proposed amended or new Standard Jury Instructions in Criminal Cases.1 We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) proposes amendments to Standard Jury Instructions 3.6(f) (Justifiable Use of Deadly Force); 3.6(g) (Justifiable Use of Nondeadly Force); 11.10 (Lewd, Lascivious, Indecent Assault or Act Upon or in the Presence of Child); 21.2 (Resisting Arrest Without Violence); 28.6 (Fleeing to Elude a Law Enforcement Officer); 28.7 (Fleeing to Elude a Law Enforcement Officer); and 28.8 (Fleeing to Elude a Law Enforcement Officer). The Committee also offers new Standard Jury Instructions 28.81 (Fleeing to Elude a Law Enforcement Officer); 28.83 (Aggravated Fleeing and Eluding); 28.85 (Aggravated Fleeing and Eluding); 29.13 (Animal Cruelty [Felony]); 29.15 (Disturbing a School, Religious or Lawful Assembly); and 29.16 (Disturbing a Military Funeral).

The proposals were published for comment in the July 1, 2007, edition of The Florida Bar News. Two comments were received. In response to the comments, the Committee revised proposed new instructions 28.83, 28.85, and 29.13.

Having considered the Committee's report and response to the comments, we authorize the publication and use of all of the amended and new instructions, except amended instruction 21.2 (Resisting Arrest Without Violence). We refer instruction 21.2 back to the Committee for further consideration in light of this Court's recent opinion in Polite v. State, 973 So.2d 1107 (Fla.2008) (discussing essential elements of the offense of resisting an officer without violence).

The instructions, as authorized, are set forth in the appendix to this opinion. New language is indicated by underlining, and deleted language is struck-through. In authorizing the instructions for publication and use, 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 notes and 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 appendix2 shall be effective when this opinion becomes final.

It is so ordered.

LEWIS, C.J., and WELLS, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

PARIENTE, J., concurring in part and dissenting in part.

I agree with the majority, except that I would sever instructions 29.15 and 29.16 from this opinion and return those instructions to the Committee for reconsideration in light of this Court's opinion in S.H.B. v. State, 355 So.2d 1176 (Fla.1977). Alternatively, I would incorporate the Official Comments to both of these instructions into the actual text of the instructions themselves.

The statutory provisions on which these instructions are based, sections 871.01(1) and (2), Florida Statutes, criminalize conduct that involves disturbing a school, religious or lawful assembly (instruction 29.15) and disturbing a military funeral (instruction 29.16). As this Court recognized in S.H.B., these statutes can only be constitutional if narrowly construed to avoid the grave danger of criminalizing conduct that is protected under our First Amendment. See 355 So.2d at 1178. Specifically, this Court held that a person must have deliberately acted to create a disturbance in order to commit a criminal offense under section 871.01(1). See id.

While the element of "willfully" in the instruction incorporates the notion of deliberateness, the Court in S.H.B. held that to act deliberately, the defendant

must act with the intention that [the] behavior impede the successful functioning of the assembly in which he [or she] has intervened, or with reckless disregard of the effect of his [or her] behavior. The acts complained of must be such that a reasonable person would expect them to be disruptive. Finally, the acts must, in fact, significantly disturb the assembly.

Id. Although this holding from S.H.B. is included in the official comments to the instructions, the holding is not incorporated into the instructions. Without this explanation, the instructions adopted by the majority in this case will not adequately advise the jury of these "inherent" elements, which are essential to ensure that a defendant is not convicted of constitutionally protected conduct.

I recognize that the constitutionality of these statutes is not before us in a jury instruction case.3 Nevertheless, at a minimum, we should include language in these instructions that a majority of this Court, almost thirty years ago, determined was necessary to avoid criminalizing constitutionally protected rights to free expression and free speech. The Committee was closely divided on this instruction (eight to six vote) and in light of these serious constitutional concerns, we should either amend the instructions or send them back for further deliberation by the Committee and a more thorough explanation of the closely divided vote.

ANSTEAD and QUINCE, JJ., concur.

APPENDIX

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.

Definition.

"Deadly force" means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla. Stat.

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another's attempt to murder [him] [her], or

2. any attempt to commit (applicable felony) upon [him] [her], or

3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

Insert and define applicable felony that defendant alleges victim attempted to commit.

Give if applicable. §§ 776.012, 776.031, Fla. Stat.

A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to [himself] [herself] or another, or

2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

Insert and define applicable forcible felony that defendant alleges victim was about to commit.

Aggressor. § 776.041, Fla. Stat.

However, the use of deadly force is not justifiable if you find:

Give only if the defendant is charged with more than one an independent forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).

b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Force in resisting arrest. § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be a law enforcement officer.

Give if applicable.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.

Read in all cases.

In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was...

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