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

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1 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 a proposed amendment 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, and a directive from the Court dated March 28, The committee proposes the following amended criminal jury instruction. Proposal Resisting Officer without Violence The proposed amended instruction can be found in legislative format at Appendix A. Words to be removed are shown by strike-through marks, and words to be added are shown by underlining. The proposed amended instruction was published in The Florida Bar News on April 1, Comments were received from Mr. Jon H. Gutmacher, Esquire, on April 24, His comments are attached at Appendix B. Explanation of Proposal Proposal Resisting Officer without Violence On March 6, 2008, this Court issued an opinion in Case No. SC (Report No ). The committee had proposed to amend instruction 21.2 by adding a fourth element to the instruction. It read as follows. 4. At the time, (defendant) knew or should have known (victim) was an officer.

2 In addition to this additional element, the committee added the word lawful to the italicized note to the trial judge. It read: In giving this instruction, refer only to the type of duty or legal process that was being performed, e.g., making an lawful arrest, serving a subpoena, serving a domestic violence order. See Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992). In the opinion, the Court did not approve the submitted proposal, but returned proposed amended instruction 21.2 to the committee in light of the Court s holding in Polite v. State, 973 So. 2d 1107 (Fla. 2007). In Polite, this Court held that the State had the burden of proving beyond a reasonable doubt the defendant s knowledge of the officer s status. The Court wrote to the committee on March 28, 2008, and asked the committee to file a report addressing whether standard jury instruction 21.2 should be amended. The committee was given until September 29, 2008, to file a report, along with any proposed amendments to the instruction. On April 1, 2008, the committee published in The Florida Bar News a revised proposal for instruction Since the Court had rejected the knew or should have known language in the original submission, the committee read the holding in Polite to mean that the State must prove that the defendant knew the victim was an officer. Therefore, the should have known portion of element 4 was removed. Element 4, as published, read as follows. 4. At the time, (defendant) knew (victim) was an officer. The committee did not change the original proposed language in the italicized portion of the instruction. The italicized words are not read to the jury, but instead serve as a note to the trial court. It read as follows. In giving this instruction, refer only to the type of duty or legal process that was being performed, e.g., making an lawful arrest, serving a subpoena, serving a domestic violence order. See Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992). The committee met on July 18, 2008, in Tampa, Florida, to discuss both instruction 21.2, and instruction 21.1 (Resisting Officer with Violence). The committee also considered the comments of Mr. Jon Gutmacher. Mr. 2

3 Gutmacher suggested that the words other legally authorized person be added to elements 2 and 3. The committee voted unanimously to not amend element 2. However, the committee believes the italicized note appearing just below element 4 covers Mr. Gutmacher s suggested change, since it instructs the trial judge to instruct the jury as to the class of officers covered by s The committee also unanimously agreed not to include two additional elements listed by Mr. Gutmacher in his letter to the committee. There is no statutory language to support his suggested element 5 and element 6. His concerns regarding the knowledge and conduct of the defendant are more appropriately addressed by filing a motion to dismiss. The committee voted unanimously to amend elements 3 and 4 of instruction 21.2, to match the proposals approved by the committee in instruction The words a person legally authorized to execute process have been added to Element 3 because this class of individuals is listed in s , Florida Statutes (2007). The amendment to element 3 reads as follows. 3. At the time, (victim) was [an officer] [a person legally authorized to execute process]. A fourth element has been added to the instruction to meet the requirements of Polite v. State, 973 So. 2d 1107 (Fla. 2007). In Polite, this Court held that the State had the burden of proving beyond a reasonable doubt the defendant s knowledge of the officer s status. Element 4 reads: 4. At the time, (Defendant) knew (victim) was [an officer] [a person legally authorized to execute process]. The committee, by a unanimous vote, has rewritten the italicized portions of the instruction that are used as a guide for the trial judge. One current italicized note to the court is found below the following text: The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law. 3

4 In giving this instruction, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991). The committee has amended this section of the instruction to read: In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991). See Fla. Stat. for the type of officer covered by this statute. The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law. The current instruction places the italicized note to the court below the sentence it refers to. The committee believes it is a better practice to place the note above the sentence that is to be read to the jury to avoid any confusion. This placement is consistent with other standard jury instructions. The committee has deleted the caveat to the trial judge to not refer to the victim by name. This is unnecessary since the italicized note to the judge clearly directs the court to insert the class of officers to which the victim belongs. The following language currently appears in the standard instruction. The court further instructs you that (read duty being performed from charge) constitutes [execution of legal process] [lawful execution of a legal duty]. In giving this instruction, refer only to the type of duty or legal process that was being performed, e.g., making an arrest, serving a subpoena, serving a domestic violence order. See Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992). The committee voted unanimously to delete these two paragraphs from the standard instruction. The committee has concluded that effectuating an arrest is not necessarily the lawful execution of a legal duty. Mr. Gutmacher reached the same conclusion in his letter to the committee. The majority of cases for a violation of s , Florida Statutes, arise out of arrest or detention situations. Jurors do not need to be instructed that making an arrest or detaining a person is 4

5 the lawful execution of a legal duty. This statement is only true if the arrest or detention itself is lawful. The committee noted that there have been many cases where the trial court has been reversed when instructing the jury that arresting a defendant was the lawful execution of a legal duty. The committee was also concerned that the language in the current instruction creates a situation where the trial judge, not the jury, makes a determination that the actions of the officer were lawful. This invades the province of the jury to make that type of determination. Respectfully submitted this day of August, The Honorable Terry David Terrell First Judicial Circuit Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases M. C. Blanchard Judicial Center 190 W. Government Street Pensacola, Florida Florida Bar Number

6 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 Terry David Terrell Chair, Committee on Standard Jury Instructions in Criminal Cases Florida Bar Number