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

Supreme Court of Florida

February 8, 2018

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

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

         Original Proceeding - Supreme Court Committee on Standard Jury Instructions in Criminal Cases

          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 ...


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