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Usry v. State

Florida Court of Appeals, Second District

November 13, 2019

DAVID BRIAN USRY, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          Appeal from the Circuit Court for Pasco County; Susan G. Barthle, Judge.

          Howard L. Dimmig, II, Public Defender, and Andrea Flynn Mogensen, Special Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa; and Lindsay D. Turner, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.

          BADALAMENTI, JUDGE

         David Brian Usry challenges his conviction and sentence for second-degree murder. The omission of Florida Standard Jury Instruction (Criminal) 3.7, or a related instruction, which charges the jury, among other things, as to the reasonable- doubt standard constitutes fundamental error. We accept the State's concession of fundamental error and reverse and remand for a new trial.

         Following the presentation of evidence and argument of counsel, the court instructed the jury that the State had to prove the elements of second-degree murder beyond a reasonable doubt. However, the jury charge did not include Standard Jury Instruction 3.7. That instruction sets forth, among other things, the reasonable-doubt standard. It provides:

3.7 PLEA OF NOT GUILTY; REASONABLE DOUBT; AND BURDEN OF PROOF
The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.
The defendant is not required to present evidence or prove anything.
Whenever the words "reasonable doubt" are used you must consider the following:
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.
If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should ...

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