IN THE SUPREME COURT OF FLORIDA. To the Chief Justice and Justices of the Supreme Court of Florida:

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1 IN THE SUPREME COURT OF FLORIDA IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT / CASE NO. To the Chief Justice and Justices of the Supreme Court of Florida: This report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases on the Supreme Court s website at is filed pursuant to Article V, section 2(a), Florida Constitution. The committee proposes the following new and amended criminal jury instructions. Proposal 1 3.3(g) Bifurcated Trial Instruction Phase Two Proposal 2 3.6(f) Justifiable Use of Deadly Force Proposal 3 3.6(g) Justifiable Use of Non-deadly Force Proposal 4 3.6(h) Justifiable Use of Force by Law Enforcement Officer Proposal (e) Failure to Register as a Sexual Offender The proposed instructions can be found in legislative format at Appendix A. The applicable chapter laws are attached at Appendix B. The new instruction is underlined. The amended instructions show underlining and strike-throughs. Comments are attached at Appendix C. All of the proposed new and amended instructions were published in The Florida Bar News on December 15, 2008, except for instruction 3.6(h) Justifiable Use of Force by a Law Enforcement Officer. That instruction was published in The Florida Bar News on February 1, Comments were received by the committee from the Florida Public Defender Association regarding Proposal 2 (Justifiable Use of Deadly Force). No comments were received regarding the other proposals.

2 Explanation of Proposals Proposal 1 3.3(g) Bifurcated Trial Instruction Phase Two The committee met on October 31, 2008, to consider creating a new instruction for bifurcated proceedings based on the holding in State v. Harbaugh, 754 So. 2d. 691 (Fla. 2000). In Harbaugh, this Court held that a jury must determine, in the second phase of a bifurcated proceeding, whether the defendant has previously been convicted of alleged driving under the influence offenses. The Court changed the holding in State v. Rodriquez, 575 So. 2d 1262 (Fla. 1991), based on the decision in U. S. v. Gaudin, 515 U.S. 506 (1995). Gaudin held that the right to a jury trial guaranteed by the 6 th and 14 th Amendments entitled a defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. A bifurcated proceeding is necessary when the defendant is convicted of a substantive offense, and a prior conviction or convictions for the same offense create a reclassification of the statutory penalty. The committee believed an instruction would be helpful since there are over thirty-five crimes that are reclassified to a higher degree when the offender has a prior conviction. The committee debated whether to propose a general instruction or draft separate instructions to fit each offense that may be reclassified. The committee opted to provide a general instruction since it would be easier to use by the judges and litigants. The committee voted unanimously to propose an instruction that would apply to any offense that is reclassified as a felony as a result of a second or subsequent conviction for the same type of offense, because the fact of a prior conviction is an element, not a sentencing factor. The italicized sections of the proposed instruction are instructional in nature. The first paragraph provides some examples of the type of offenses that apply. The second paragraph is a caveat to the court to review relevant statutes to determine whether an adjudication of guilt is necessary to constitute a conviction. The proposed instruction makes it clear, both in the one element of the offense, and in the comment section, that the proof of a prior conviction must be established by the jury beyond a reasonable doubt. 2

3 The last italicized section of the instruction which reads: Give a or b as applicable, is straightforward. All that is necessary is for the court to insert the appropriate offense or offenses from the information or indictment, and insert either the date charged in the offense before the court, or the number of prior convictions as alleged in the charging document. The proposal was approved by a unanimous vote of the committee. Proposal 2 3.6(f) Justifiable Use of Deadly Force The committee met on October 31, 2008, to consider amending instruction 3.6(f). The 2008 Florida Legislature amended , Florida Statutes (2007), in order to abrogate the Court s opinion in Tillman v. State, 934 So. 2d 1263 (Fla. 2006). See Chapter , Laws of Florida, attached at Appendix B. The legislature amended the statute to read: (1) A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaging in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she who is known, or reasonably appears, to be a law enforcement officer. The committee voted unanimously to amend the current instruction to track the statutory language in (1), Fla. Stat. The instruction reads: Force in resisting a law enforcement officer arrest (1), Fla. Stat. A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she who is known to be, or reasonably appears, to be a law enforcement officer. This amendment was approved by a unanimous vote. The committee also discussed amending the current instruction to reflect the holding of the 4 th District Court of Appeal in Novak v. State, 974 So. 2d 520 (Fla. 4 th DCA 2008). In Novak, the defendant argued that the standard instruction imposing a duty to retreat on a defendant who employs self-defense while engaged in unlawful activity was confusing under the circumstances because the defendant was not engaged in any unlawful activity other than the crimes for which 3

4 he asserted the justification. The court agreed. The court stated: Like the forcible felony instruction in Giles, which erroneously implied that the very act [the defendant] sought to justify itself precluded a finding of justification, a jury charged with the unlawful activity instruction might confuse the charged crimes with unlawful activity that precludes the justification of self-defense unless the defendant has retreated. In order to address the holding in Novak, the committee amended the current instruction by adding the following language: No duty to retreat (3), Fla. Stat. See Novak v. State, 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. The vote to amend the instruction was not unanimous. Three committee members voted against the inserted language because they did not feel the reference to Novak was particularly helpful to the court or the attorneys. The proposed amended instruction was published in The Florida Bar News for comments. One comment was received by the Florida Public Defender Association. The committee met on February 27, 2009, and considered the comments of the association. The association recommended that the presumption of fear paragraph in the proposal be expanded to include the statutory exceptions found in (2), Florida Statutes (2008). The association felt that whether or not an exception applies is a question for the jury to decide. The committee agreed with the association. The pertinent part of the instruction, as published read: Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. See exceptions in (2), Fla. Stat., which may negate the giving of this instruction. The committee voted unanimously to change the language to read: Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable (2)(a)-(d), Fla. Stat. See exceptions in (2), Fla. Stat., which may negate the giving of this instruction. 4

5 The committee, based on the comments of the association, and by a unanimous vote, added the following language regarding the presumption of fear to the proposal: Exceptions to Presumption of Fear (2)(a)-(d), Fla. Stat. Give as applicable. The presumption of reasonable fear of imminent death or great bodily harm does not apply if: a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. If requested, give definition of law enforcement officer from (14), Fla. Stat. At the February 27, 2009 meeting, the committee decided to further amend the proposed instruction by making the changes stated below. None of the changes were substantive in nature, and the committee felt it was not necessary to republish the proposed instruction for comments. All of the amendments were approved by a unanimous vote of the committee. 5

6 A person is justified in using deadly force if the force is necessary to prevent the imminent commission of a forcible felony against the person. In the deadly force section of the current instruction, the following language appears: Insert and define applicable forcible felony that defendant alleges victim was about to commit. This language was changed to read: Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in , Fla. Stat. A defendant who is charged with an independent forcible felony does not have the right to use deadly force if he or she is committing, attempting to commit, or is escaping from the commission of a forcible felony. The following language appears in the current instruction: Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. The committee amended this paragraph to read: Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in , Fla. Stat. A person has no duty to retreat if he or she was not engaged in unlawful activity and may meet force with force, including deadly force, in order to prevent death or great bodily harm, or to prevent the commission of a forcible felony. To maintain consistency throughout the instruction, the committee moved the following language from the definition section of the instruction and placed it below the no duty to retreat portion of the instruction. Define applicable forcible felony that defendant alleges victim was about to commit. The sentence was modified to read: Define applicable forcible felony from the list in , Fla. Stat., that defendant alleges victim was about to commit. 6

7 The committee added the following statutory reference to the proposed instruction (4), Fla. Stat A person who unlawfully and by force enters or attempts to enter another s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. The committee added the following statutory reference to the proposed instruction. Definitions. Give if applicable (5), Fla. Stat. Proposal 3 3.6(g) Justifiable Use of Non-deadly Force The committee met on October 31, 2008, to consider amending instruction 3.6(g). The rationale for amending instruction 3.6(f), based on Chapter , Laws of Florida, and the Novak opinion, also applies to instruction 3.6(g). Therefore, 3.6(g) was amended to match instruction 3.6(f). The following language appears in the proposal: Force in resisting a law enforcement officer arrest (1), Fla. Stat. A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she who is known to be, or reasonably appears, to be a law enforcement officer. The amendment was approved by a unanimous vote. The second amendment addressed the holding in Novak. No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable. See Novak v. State, 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. 7

8 The vote to amend this section of the instruction was not unanimous. Three committee members who voted against this language in 3.6(f), also voted against the inserted language in this proposal, for the same reasons. Proposal 4 3.6(h) Justifiable Use of Force by Law Enforcement Officer The committee met on October 31, 2008, to consider amending instruction 3.6(h). The 2008 Florida Legislature amended (2), Florida Statutes. See Chapter , Laws of Florida, attached at Appendix B. The legislature amended the statute to read: (2) A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to unlawful. The committee voted unanimously to amend the current instruction to reflect the statutory change. The proposal reads: Force in making unlawful arrest or unlawful execution of a legal duty prohibited (2), Fla. Stat. Give if applicable. 1. the [arrest] [execution of a legal duty] is unlawful and 2. it is known by the officer or the person assisting [him] [her] to be unlawful. Proposal (e) Failure to Register as a Sexual Offender The committee met on October 31, 2008, to consider amending instruction 11.14(e). This instruction was approved by the Court in The committee received a communication from Assistant State Attorney Rob Sale from the 14 th Judicial Circuit on September 7, 2008, regarding instruction 11.14(e) and (7), Florida Statutes (2008). The statute reads as follows: A sexual offender who intends to establish residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to 8

9 leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence. The sheriff shall promptly provide to the department the information received from the sexual offender. The department shall notify the statewide law enforcement agency, or a comparable agency, in the intended state or jurisdiction of residence of the sexual offender s intended residence. The failure of a sexual offender to provide his or her intended place of residence is punishable as provided in subsection (9). Mr. Sale noted that the current instruction lists five distinct elements of proof. In element 4, the state must prove that the offender failed to report in person to the office of the sheriff within 48 hours before the date he or she intends to leave the State of Florida. The state is also required to prove element 5. In element 5, the state must prove that at the time of reporting, the defendant failed to provide to the sheriff the intended address where he or she intended to reside. Mr. Sale believed that in every instance the state was not required to prove both element 4 and element 5. The offense in (7), is the failure to provide to the sheriff in the county where the offender currently resides, the offender s intended place of residence outside of the state. This can be accomplished one of two ways. The offender can report to the sheriff, but fail to provide an address. In the alternative, the offender can fail to report at all and leave the jurisdiction of the State of Florida. In either scenario, the offender has failed to provide an intended place of residence. The committee agreed that the instruction needed to be amended to cover both possibilities. The instruction has been amended to include either four or five elements, or both, depending on the allegations in the charging instrument. This amendment to the instruction was approved by a unanimous vote. 9

10 Respectfully submitted this day of March, The Honorable Lisa T. Munyon Ninth Judicial Circuit Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases 425 North Orange Avenue, Room 1130 Orlando, Florida Florida Bar Number

11 CERTIFICATE OF FONT SIZE I hereby certify that this report has been prepared using Times New Roman 14 point font in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). The Honorable Lisa T. Munyon Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases Florida Bar Number