final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Gadsden County. Barbara K.
Thomas, Public Defender, and David A. Henson, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.
Williams appeals his conviction and life sentence for robbing
a Dollar General store at gunpoint. He raises two issues on
appeal. First, Mr. Williams argues for a new trial on the
basis that the trial court erred by instructing the jury with
a prior version of the standard jury instruction for
eyewitness identification. Second, he seeks a corrected costs
order because the trial court failed to cite any statutory
authority in imposing a $3.00 teen court cost. We affirm his
judgment and sentence, except as to the costs.
20, 2016, a man robbed a Dollar General store in Gretna at
gunpoint and fled. Two Dollar General employees working at
the time thought they recognized the robber as the boyfriend
of an off-duty co-worker who frequently came to the store.
Mr. Williams fled when law enforcement approached him later
that day, but he was caught. That night, law enforcement put
together a six-person photo lineup for the two Dollar General
employees and both employees identified Mr. Williams as the
two years passed before Mr. Williams's case went to
trial. During this time, Florida passed a new eyewitness
identification statute in 2017 addressing the use of photo
lineups by law enforcement. See § 92.70, Fla.
Stat. Among other things, the new law required law
enforcement to conduct photo lineups in a blind manner to
avoid officers from inadvertently communicating cues about
specific photos to witnesses. See id. Where law
enforcement failed to comply with the law's new
procedures, the statute provided for courts and juries to
take adverse inferences as to the reliability of eyewitness
identification evidence. See id. The new law led to
the revision of the standard jury instruction applicable to
eyewitness identification in March 2018. See In re:
Standard Jury Instructions in Criminal Cases- Report
2017-09, 238 So.3d 192 (Fla. 2018). The new instruction
tracked the requirements of the new law.
brings us back to Mr. Williams's trial in May 2018. At
the charge conference, the State and the defense could not
agree on which version of the eyewitness identification
standard jury instruction should be used, whether the old
version or the new one. The trial judge decided to go with
the prior instruction applicable when the offense and photo
lineup took place because the new instruction addressed
different legal standards that didn't yet exist when the
lineup occurred. Mr. Williams was subsequently convicted and
sentenced. He now appeals the jury instruction issue seeking
a new trial. He also appeals an unrelated costs issue.
review trial court decisions to give or withhold requested
jury instructions for abuse of discretion. James v.
State, 695 So.2d 1229, 1236 (Fla. 1997) ("[A] trial
court has wide discretion in instructing the jury, and the
court's decision regarding the charge to the jury is
reviewed with a presumption of correctness on appeal.").
"[A] trial judge in a criminal case is not constrained
to give only those instructions that are contained in the
Florida Standard Jury Instructions." Id.
Williams argues the trial court erred by denying his request
to give the most current standard jury instruction related to
eyewitness identification instead of the 2016 version of the
instruction Mr Williams denied being the gunman at the store
and argued that use of the old instruction kept the jury from
considering whether law enforcement had complied with the
procedures contained in the new instruction However, we see
no merit in this argument because the current standard jury
instruction tracks legal requirements for eyewitness
identification that only became effective in 2017, which was
after the robbery and photo lineup occurred in this case
Again, law enforcement arrested Mr Williams for the robbery
and completed the photo lineup in his case in 2016 At that
time § 9270 did not exist And Florida law did not
prescribe the same photo lineup procedures and remedies that
§ 9270 does now Because the photo lineup performed in Mr
Williams's case occurred before the current statute and
instruction existed, the trial court did not abuse its
discretion by using the prior version of the standard jury
instruction instead of the current § 9270-derived
instruction Cf Smiley v State, 966 So.2d 330 (Fla
2007) (holding that a defendant was not entitled to a jury
instruction based on a statute enacted after the date of the
offense); Carinda v State, 734 So.2d 514 (Fla 4th
DCA 1999) (reversing where the trial court gave a new
standard jury instruction which post-dated the date of the
offense); Hicks v State, 277 So.3d 153, 172 (Fla 1st
DCA 2019) (Winokur, J, concurring) (distinguishing cases in
which a Stand-Your-Ground immunity decision was made
before a law changed the burden of proof, from cases
in which the immunity hearing occurred after the law
changed the burden of proof).
we accept the State's concession and reverse the $3.00
teen court cost assessed by the trial court. "[I]t is
improper to impose additional court costs without reference
to statutory authority, or an explanation in the record as to
what the additional costs represent." Bradshaw v.
State, 638 So.2d 1024, 1025 (Fla. 1st DCA ...