IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS IN CAPITAL CASES.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Original Proceeding - Supreme Court Committee on Standard
Jury Instructions in Criminal Cases
Debra Johnes Riva, Twelfth Judicial Circuit, Sarasota,
Florida, and Judge James C. Hankinson on behalf of Handling
Capital Cases Faculty, Tallahassee, Florida; Howard L.
"Rex" Dimmig, II, Public Defender, and Peter Mills,
Assistant Public Defender, Chair, Florida Public Defender
Association Death Penalty Steering Committee, Tenth Judicial
Circuit, Bartow, Florida; Karen M. Gottlieb on behalf of
Florida Center for Capital Representation at FIU College of
Law, Miami, Florida, and Billy H. Nolas, Chief, Capital
Habeas Unit, Federal Public Defender, Northern District,
Tallahassee, Florida, Sonya Rudenstine, Gainesville, Florida,
Luke Newman, Tallahassee, Florida, and William R. Ponall of
Ponall Law on behalf of Florida Association of Criminal
Defense Lawyers, Maitland, Florida; Robert R. Berry,
Tallahassee, Florida; Penny H. Brill, Assistant State
Attorney, Eleventh Judicial Circuit, Miami, Florida, and
Arthur I. Jacobs of Jacobs Scholz & Associates, LLC on
behalf of Florida Prosecuting Attorneys Association,
Fernandina Beach, Florida; Judge F. Rand Wallis, Chair, and
Judge James Colaw, 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, Responding with comments
in this case, the Court authorized for publication and use on
an interim basis, on its own motion, amended existing
instructions 7.11 (Preliminary Instructions in Penalty
Proceedings-Capital Cases) and 7.12 (Dialogue for Polling the
Jury (Death Penalty Case)), and adopted new instructions
3.12(e) (Jury Verdict Form-Death Penalty) and 7.11(a) (Final
Instructions in Penalty Proceedings-Capital Cases). In re
Std. Crim. Jury Instrs. in Capital Cases, 214 So.3d 1236
need for the Court to authorize for publication and use
revised and new capital case jury instructions arose from the
decision in Hurst v. Florida, 136 S.Ct. 616 (2016),
wherein the United States Supreme Court held that a portion
of Florida's death penalty sentencing scheme was
unconstitutional because a jury was not required to find the
facts necessary to impose a sentence of death. See
id. at 619. Following remand from the Supreme Court, we
that in addition to unanimously finding the
existence of any aggravating factor, the jury must
also unanimously find that the aggravating factors are
sufficient for the imposition of death and
unanimously find that the aggravating factors
outweigh the mitigation before a sentence of death
may be considered by the judge.
Hurst v. State, 202 So.3d 40, 54 (Fla. 2016),
cert. denied, 137 S.Ct. 2161 (2017).
further held that a unanimous jury recommendation for death
is required before a trial court may impose a sentence of
death. Id. The changes to the standard criminal jury
instructions were also warranted in light of chapter 2017-1,
Laws of Florida, amending section 921.141, Florida Statutes
(2016), which requires a jury to unanimously determine that a
defendant should be sentenced to death.
the Court authorized the interim instructions on its own
motion, we allowed sixty days in which the Supreme Court
Committee on Standard Jury Instructions in Criminal Cases
(Committee) and other interested persons could file comments.
In re Std. Crim. Jury Instrs. in Capital Cases, 214
So.3d at 1236-37, 1237 n.2. The Court received numerous
comments and a response from the Committee proposing new
amendments to the instructions and a response to the comments
filed with the Court. Based upon the comments, the
Committee's response and proposals, and having heard oral
argument in this case, we now further amend the instructions.
The more significant amendments to the interim instructions
are discussed below.
instruction 3.12(e) (Jury Verdict Form-Death Penalty) is
amended under Section C to change the title from
"Statutory Mitigating Circumstances" to
"Mitigating Circumstances." In addition, as
amended, the verdict form under Section C no longer requires
jurors to list the mitigating circumstances found or to
provide the jury vote as to the existence of mitigating
with regard to instruction 7.11 (Preliminary Instructions in
Penalty Proceedings-Capital Cases), we amend the interim
instruction by renumbering it from 7.11 to 7.10; under
"Give this instruction in all cases, " removing
from the provision "(2) whether one or more aggravating
factors exist beyond a reasonable doubt" because it is
duplicative of "(1) whether each aggravating factor is
proven beyond a reasonable doubt"; under
"Aggravating Factors, " deleting the word
"recommending" and replacing it with the phrase
"a verdict of"; and adding "unanimously"
to the sentence "In order to consider the death penalty
as a possible penalty, you must determine that at least one
aggravating factor has been proven beyond a reasonable
amend instruction 7.11(a) (Final Instructions in Penalty
Proceedings-Capital Cases) by renumbering it to 7.11. Within
that instruction, we add the following sentence pertaining to
the weighing process: "The next step in the process is
for each of you to determine whether the aggravating
factor[s] that you have unanimously found to exist
outweigh[s] the mitigating circumstance[s] that you have
individually found to exist." In addition, we delete the
portion of instruction 7.11 that directs the jury to
"weigh all of the following."
we authorize the capital case jury instructions for
publication and use as set forth in the appendix to this
opinion. New language is indicated by underlining;
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 these instructions. The
instructions as set forth in the appendix shall become
effective immediately upon the release of this opinion.
take this opportunity to thank the Supreme Court Committee on
Standard Jury Instructions in Criminal Cases, the Florida
Supreme Court's Criminal Steering Committee, the faculty
of the Handling Capital Cases course, the Honorable James C.
Hankinson, the Honorable James M. Colaw, the Florida
Prosecuting Attorneys Association, the Florida Public
Defender Association, the Florida Association of Criminal
Defense Lawyers, the Florida Center for Capital
Representation at Florida International University College of
Law, and all other commenters, for their thoughtful
consideration, recommendations, and insight in addressing the
complicated issues presented by implementing the death
penalty. This assistance has been invaluable to the
Court's modifications to the interim instructions.
CANADY, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurring in result.
concur with each part of the per curiam opinion except its
decision to "no longer require jurors to list the
mitigating circumstances found or to provide the jury vote as
to the existence of mitigating circumstances" in
instruction 3.12(e), Section C. Per curiam op. at 3. Of
course, the per curiam does not preclude the use of special
verdict forms that include all mitigating circumstances
proposed with a place for the jury vote. See per
curiam op. at 4 (stating that "all interested
parties" may "request additional or alternative
instructions"). Therefore, I would strongly urge the
trial courts, at the request of defendants, to utilize a
verdict form that includes places for the jury's findings
on mitigating circumstances, especially in light of
including mitigating circumstances on the standard verdict
form, this Court would enhance uniformity for jury findings
as to mitigating circumstances. Nevertheless, when requested
by the defendant, trial courts should follow the standard
verdict form previously promulgated by this Court on an
interim basis, which includes a list of mitigating
circumstances proposed by the defendant and a place for the
jury to indicate its vote for each mitigator. In re Std.
Crim. Jury Instrs. in Capital Cases, 214 So.3d 1236,
1239-40 (Fla. 2017). For reference, I include in this opinion
the relevant language from that form.
on oral argument and the supplemental authority filed in this
case, it is clear that at least some federal courts use
special verdict forms that request the jury in capital cases
to list the mitigating circumstances it found and to indicate
the jury's vote as to whether each mitigating
circumstance was proven. Reviewing the supplemental authority in
this case-special verdict forms from federal capital
prosecutions in Florida, one of which may be accessed
here-demonstrates how these findings may be useful. Thus,
requiring the jury to state its findings for each mitigating
circumstance is consistent with the verdict forms employed by
some federal courts.
Law in Light of Hurst
per curiam opinion explains, Florida's capital sentencing
scheme has substantially changed in light of the United
States Supreme Court's opinion in Hurst v.
Florida, 136 S.Ct. 616 (2016), and our opinion on remand
in Hurst. Hurst made clear that each of the
jury's findings, including mitigation, are
constitutionally significant under the Sixth Amendment to the
United States Constitution and article I, section 22, of the
Florida Constitution. See Hurst, 202 So.3d at 44;
see also per curiam op. at 2. Likewise, I have
explained several times since Hurst that the penalty
phase jury's findings on mitigation are critical to the
constitutional imposition of the death penalty, and this
Court cannot speculate as to a jury's findings of
mitigation when reviewing a death sentence. See,
e.g., Hannon v. State, 228 So.3d 505, 514-19
(Fla.) (Pariente, J., dissenting), cert. denied, 138
S.Ct. 441 (2017); Kaczmar v. State, 228 So.3d 1,
16-17 (Fla. 2017) (Pariente, J., concurring in part and
dissenting in part) (joined by Justice Quince), petition
for cert. filed, No. 17-8148 (U.S. Mar. 14, 2018);
see also Hurst, 202 So.3d at 44. As I did even
before Hurst, I now urge the Court, especially in
light of Hurst, to fully correct our standard
capital verdict form to ensure the constitutional imposition
of death sentences in this State.
have explained, including the jury's findings of
aggravating factors and mitigating circumstances
"would both facilitate our proportionality review and
satisfy the constitutional guarantee of trial by jury."
Lebron v. State, 982 So.2d 649, 671 (Fla. 2008)
(Pariente, J., concurring); see Coday v. State, 946
So.2d 988, 1023-25 (Fla. 2006) (Pariente, J., concurring in
part and dissenting in part). Likewise, specially concurring
in Aguirre-Jarquin v. State, 9 So.3d 593 (Fla.
2009), joined by now-Chief Justice Labarga, I explained that
some of the most experienced trial judges in our State use
special verdict forms to avoid "the constitutional
concerns with the inability to receive explicit jury
findings, " id. at 611 (Pariente, J., specially
concurring), and that "special verdict forms would
assist in this Court's review of death sentences."
Id. at 613.
I explained in my specially concurring opinion in In re
Standard Jury Instructions in Criminal Cases-Report No.
2005-2, 22 So.3d 17 (Fla. 2009), joined by now-Chief
Justice Labarga and former Justice Perry:
I also believe that this Court has missed an opportunity to
further enhance the process of imposition of the death
penalty by requiring the use of special verdict forms in the
penalty phase so that the jury could have had the opportunity
to record its findings on aggravators and mitigators-the
essential ingredients in the ultimate decision of whether to
impose the death penalty. As the Committee explained in its
initial report, "the trial judge [presently] does not
know how the jury considered the various aggravating and
mitigating circumstances, " and it would be
"most helpful to the trial judge [in preparing the
sentencing order] to know how the jury viewed the evidence
presented in the penalty phase, " for this would
"provide valuable assistance in deciding the weight to
be given to each circumstance." (Emphasis added). .
. . . .
I continue to believe that this Court has the authority to
require special interrogatories and since the Court does not
believe that it has that authority, I urge, as did Justice
Cantero before me, that there be changes to the death penalty
statute to allow for the use of special verdict forms.
Id. at 24-27 (Pariente, J., specially concurring).
even though the majority of this Court does not adopt a
standard verdict form requiring trial courts to list
mitigating circumstances and asking the jury to indicate its
findings as to mitigating circumstances, it also does not
prevent these findings. Accordingly, when requested by the
defendant, I urge the trial courts to use verdict forms that
include those findings. See majority op. at 3. In
the interest of uniformity, I urge trial courts to use the
following language, which this Court promulgated after
We the jury find that (mitigating circumstance) was
established by the greater weight of the evidence.
answered YES above, please provide the jury vote as to the
existence of (mitigating circumstance).
VOTE OF ___ TO___ .
for each mitigating circumstance proposed by the
defendant. See In re Std. Crim. Jury Instrs. in
Capital Cases, 214 So.3d at 1239-40.
of these reasons, I would include mitigating circumstances in
the standard verdict form for the penalty phase of capital
cases, including the jury's vote as to each mitigating
circumstance. Nevertheless, because the majority deletes
these findings in the instructions approved today, I
encourage defense counsel to request and the trial courts to
approve, respectively, the inclusion of these findings on the
verdict form. See per curiam op. at 4 (stating that
"all interested parties" may "request
additional or alternative instructions").
LABARGA, C.J., and QUINCE, J., concur.
JURY VERDICT FORM-DEATH PENALTY
jury find as follows as to (Defendant) in this case:
Aggravating Factors as to Count:
We the jury unanimously find that the State has established
beyond a reasonable doubt the existence of (aggravating
this step for each statutory aggravating factor submitted to
answer YES to at least one of the aggravating factors listed,
please proceed to Section B. If you answered NO to every
aggravating factor listed, do not proceed to Section B;
(Defendant) is not eligible for the death sentence and will
be sentenced to life in prison without the possibility of
Sufficiency of the Aggravating Factors as to Count:
Reviewing the aggravating factors that we unanimously found
to be established beyond a reasonable doubt (Section A), we
the jury unanimously find the aggravating factors are
sufficient to warrant a possible sentence of death.
answer YES to Section B, please proceed to Section C. If you
answer NO to Section B, do not proceed to Section C;
(Defendant) will be sentenced to life in prison without the
possibility of parole.
Statutory Mitigating Circumstances:
We the jury One or more
individual jurors find that (statutory one or more mitigating
established by the greater weight of the evidence.
you answered YES above, please provide the jury vote as to
the existence of (statutory mitigating circumstance).
VOTE OF ___ TO ___.
for each statutory mitigating circumstance.
proceed to Section D, regardless of your findings in Section
Eligibility for the Death Penalty for Count.
jury unanimously find that the aggravating factors that were
proven beyond a reasonable doubt (Section A) outweigh the
mitigating circumstances established (Section C above) as to
answered YES to Section D, please proceed to Section E. If
you answered NO to Section D, do not proceed; (Defendant)
will be sentenced to life in prison without the possibility
Verdict as to Death Penalty
unanimously found that at least one aggravating factor has
been established beyond a reasonable doubt (Section A), that
the aggravating [factor] [factors] [is]
[are] sufficient to warrant a sentence of death (Section B),
and the aggravating [factor] [factors] outweigh the
mitigating circumstances (Section D), we the jury unanimously
find that (Defendant) should be sentenced to death.
If NO, our vote to impose a sentence of life is ___ to ___.
vote to impose death is less than unanimous, the trial court
shall impose a sentence of life without the possibility of
instruction was adopted in 2017 [214 So.3d 1236] and amended
PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS - CAPITAL
CASES § 921.141, Fla. Stat.
instruction is designed for first degree murders committed
after May 24, 1994, when the Legislature omitted the
possibility of parole for anyone convicted of First Degree
Murder. For first degree murders committed before May 25,
1994, this instruction will have to be modified.
instruction is to be given immediately before the opening
statements in the penalty phase of a death penalty case.
1a at the beginning of penalty proceedings before a jury that
did not try the issue of guilt. Give
bracketed language if the case has been remanded for a new
penalty proceeding. See Hitchcock v. State, 673 So.2d 859
(Fla. 1996). In addition, give the jury other
appropriate general instructions.
1. a. Members of the jury, the defendant has been found
guilty of ___ count[s] of Murder in the First Degree in a
previous proceeding. The only issue before you is to
determine the appropriate sentence. The punishment for
this crime is either life imprisonment without the
possibility of parole or death.
1b at the beginning of penalty proceedings before the jury
that found the defendant guilty.
b. Members of the jury, you have found the defendant guilty
of ___ count[s] of Murder in the First Degree. The
punishment for this crime is either life
imprisonment without the possibility of parole or death.
murders committed before May 25, 1994, the following
paragraph should be modified to comply with the statute in
effect at the time the crime was committed. If the jury
inquires whether the defendant will receive credit for time
served against a sentence of life without possibility of
parole for 25 years, the court should instruct that the
defendant will receive credit for all time served but that
there is no guarantee the defendant will be granted parole
either upon serving 25 years or subsequently. See Green v.
State, 907 So.2d 489, 496 (Fla. 2005).
The punishment for this crime is either life imprisonment
without the possibility of parole or death.
this instruction in all cases.
attorneys will now have an opportunity, if they wish, to make
an opening statement. The opening statement gives the
attorneys a chance to tell you what evidence they believe
will be presented during the penalty phase of this trial.
What the lawyers say during opening statements is not
evidence, and you are not to consider it as such. After the
attorneys have had the opportunity to present their opening
statements, the State and the defendant may present evidence
relative to the nature of the crime and the defendant's
character, background, or life. You are instructed that this
evidence [, along with the evidence that you heard during
the guilt phase of this trial, ] is presented in order
for you to determine, as you will be instructed, (1) whether
each aggravating factor is proven beyond a reasonable doubt;
(2) whether one or more aggravating factors
exist beyond a reasonable doubt; (3) whether the
aggravating factors found to exist beyond a reasonable doubt
are sufficient to justify the imposition of the death
penalty; (43) whether
mitigating circumstances are proven by the greater weight of
the evidence; (54) whether
the aggravating factors outweigh the mitigating
circumstances; and (65)
whether the defendant should be sentenced to life
imprisonment without the possibility of parole or death. At
the conclusion of the evidence and after argument of counsel,
you will be instructed on the law that will guide your