FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Susan G. Barthle,
L. Dimmig, II, Public Defender, and Andrea Flynn Mogensen,
Special Assistant Public Defender, Bartow, for Appellant.
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.
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.
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
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
If you have a reasonable doubt, you should find the defendant
not guilty. If you have no reasonable doubt, you should ...