          Supreme Court of Florida
                                  ____________

                                  No. SC17-1870
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                     REPORT 2017-08.

                                  [May 24, 2018]

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Criminal

Cases (Committee) has submitted proposed changes to the standard jury

instructions and asks that the Court authorize the amended standard instructions for

publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee proposes that the Court amend standard jury instructions

3.12 (Verdict), 3.12(a) (Single Defendant, Multiple Counts or Informations),

3.12(c) (Multiple Counts or Informations, Multiple Defendants), and 3.12(d)

(Legally Interlocking Counts), and adopt new instruction 3.12(f) (Crime Legally

Interlocking with a Special Finding Within that Same Count). Following

publication in The Florida Bar News, the Committee received comments from the

Florida Public Defender Association (FPDA) and the Florida Association of
Criminal Defense Lawyers (FACDL), both pertaining to the proposal to amend

instruction 3.12. The Court also published the Committee’s proposals, and one

comment was received from James Altman, Assistant State Attorney for the Ninth

Judicial Circuit; the Committee responded to Mr. Altman’s comment. The more

significant amendments to the instructions are discussed below.1

      Criminal jury instruction 3.12 (Verdict) is amended to include a directive to

the trial court to include a provision if the State is proceeding on both theories of

first degree murder, i.e., premeditated and felony murder, on the basis of Mansfield

v. State, 911 So. 2d 1160 (Fla. 2005). That specific provision is added as follows:

             If you return a verdict of guilty to the charge of First Degree
      Murder, it is not necessary that all of you agree the State proved First
      Degree Premeditated Murder and it is not necessary that all of you
      agree the State proved First Degree Felony Murder. Instead, what is
      required is that all of you agree the State proved either First Degree
      Premeditated Murder or First Degree Felony Murder.

Instruction 3.12 also includes “a sample of possible verdict forms for typical

variables in combinations of defendants and charges.” As amended, two special

finding forms pertaining to felony reclassification under section 775.087, Florida




       1. Comments to the instructions are also amended, but are not discussed, as
we caution all interested parties that any comments associated with the instructions
reflect only the opinion of the Committee and are not necessarily indicative of the
views of this Court as to their correctness or applicability.


                                         -2-
Statutes (2017), are added, one under subsection (1) and the other under subsection

(2).

       New standard criminal jury instruction 3.12(f) (Crime Legally Interlocking

with a Special Finding Within that Same Count) is adopted to avoid the occurrence

of “true inconsistent verdicts,” where the elements of a crime may legally interlock

with a special finding within that same crime under the facts of the case. See

Proctor v. State, 205 So. 3d 784 (Fla. 2d DCA 2016); Gerald v. State, 132 So. 3d

891 (Fla. 1st DCA 2014).

       Having considered the Committee’s report and the comments submitted to

the Committee and filed with the Court, and the Committee’s response to the

comments, we authorize instructions 3.12, 3.12(a), 3.12(c), 3.12(d), and 3.12(f) for

publication and use as set forth in the appendix to this opinion.2 New language is

indicated by underlining; deleted language is indicated by struck-through type. In

authorizing the publication and use of these instructions, we express no opinion on

their correctness and remind all interested parties that this authorization forecloses



       2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.


                                         -3-
neither requesting additional or alternative instructions nor contesting the legal

correctness of these instructions. The instructions as set forth in the appendix shall

become effective when this opinion becomes final.

      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON,
JJ., concur.
PARIENTE, J., concurs in result with an opinion.

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

PARIENTE, J., concurring in result.

      I concur in result for two reasons. First, although not inaccurate under our

2005 decision in Mansfield v. State, 911 So. 2d 1160 (Fla. 2005), there is no reason

that instruction 3.12 is now necessary. Second, even with and especially in light of

instruction 3.12, I urge, once again, for the use of special verdict forms as to the

alternate theories of first-degree murder, unless the defense objects.

                                   Instruction 3.12

      As the Committee recognizes, this Court has not addressed whether Hurst3

affects the validity of our decision in Mansfield, holding that the jury is not

required to reach a unanimous decision on the theory of first-degree murder. Id. at

1178-79. Therefore, Mansfield remains good law, and instruction 3.12 is accurate


      3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

                                         -4-
under the current law. That being said, it is unclear why this instruction is being

adopted now, thirteen years after Mansfield. Nevertheless, as a result of the

inclusion of instruction 3.12 in the standard jury instructions, as well as the

implications the jury’s findings in the guilt phase have on the penalty phase, it is

more important than ever to use a special verdict form in the guilt phase to

determine the jury’s vote as to each theory of first-degree murder.

                          Guilt Phase Special Verdict Forms

         I join the Florida Public Defender Association in urging the trial courts to

use a special verdict form in the guilt phase of capital prosecutions, especially

when requested by the defendant. A special verdict form indicating each juror’s

determination as to whether the defendant is guilty of premeditated or felony first-

degree murder would promote informed decision-making by the trial court in the

guilt phase and, more importantly, by the jury in the penalty phase, especially after

Hurst.

         For example, if the jury did not unanimously conclude that the murder was

premeditated, it should be clear that the CCP (cold, calculated, and premeditated)

aggravating factor, requiring heightened premeditation, was not proven beyond a

reasonable doubt. Likewise, when this Court previously rejected the Criminal

Court Steering Committee’s recommendation to mandate the use of guilt phase




                                           -5-
special verdict forms, in an opinion joined by Chief Justice Labarga and former

Justice Perry, I explained:

             The use of special verdict forms to specify felony murder and
      premeditated murder has numerous advantages as identified by the
      Steering Committee and those in favor of the forms. I would also
      defer to the expertise of our Steering Committee members, including
      the trial judges who have been utilizing the special verdict forms in
      first-degree murder cases and advocate their mandated use.
             The Committee’s proposal should be adopted because the new
      verdict form would assist both the trial court in making decisions as to
      what penalty to impose and this Court in reviewing the sentence in the
      following ways. First, a special verdict form indicating that a
      defendant was found guilty of first-degree murder based on a
      premeditated murder theory would obviate the need for the trial court
      to perform the requisite felony murder analysis under Enmund v.
      Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137
      (1987). . . . Second, if the State sought to establish either the cold,
      calculated, and premeditated or felony murder aggravators in the
      penalty phase, it would be helpful for the trial court to know how the
      jury viewed the evidence when discussing these aggravating
      circumstances in the sentencing order. Third, the use of a special
      verdict form in the guilt phase would guide the trial court in
      determining the applicable instructions in the penalty phase. Finally,
      the special verdict form would aid this Court in our review of
      evidentiary issues, as well as the sufficiency of the evidence as to
      either premeditated or felony murder.

In re Std. Jury Instrs. in Crim. Cases—Report No. 2005-2, 22 So. 3d 17, 24 (Fla.

2009) (Pariente, J., specially concurring).

      Other courts, including the United States Supreme Court, have also

explained that, although “the Constitution [does] not command” their use,

“separate verdict forms are useful in cases submitted to a jury on alternative

theories of premeditated and felony murder.” Schad v. Arizona, 501 U.S. 624, 645

                                         -6-
(1991) (citing State v. Smith, 774 P.2d 811, 817 (Ariz. 1989)). Likewise, the

Supreme Court of Arizona has stated that “dual forms of verdict are desirable in

reviewing cases on the guilt phase.” Smith, 774 P.2d at 817.

                                   CONCLUSION

      For all these reasons, although Mansfield has not been modified since Hurst,

I would urge the adoption of special verdict forms in first-degree murder cases

where the State seeks a conviction based on alternative theories of felony first-

degree murder or premeditated first-degree murder. Notwithstanding, because the

majority has chosen to not adopt this requirement, I urge defense counsel to

request, the State to agree, and trial courts to grant the use of special verdict forms

in the guilt phase of first-degree murder prosecutions.

Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases

Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,

      for Petitioner

James Altman, Assistant State Attorney, Ninth Judicial Circuit, Orlando, Florida,

      Responding with comments




                                         -7-
                                    APPENDIX

                                  3.12 VERDICT

       You may find the defendant guilty as charged in the [information]
[indictment] or guilty of such lesser included crime[s] as the evidence may
justify or not guilty.

      If you return a verdict of guilty, it should be for the highest offense
whichthat has been proven beyond a reasonable doubt. If you find that no
offense has been proven beyond a reasonable doubt, then, of course, your
verdict must be not guilty.

      The verdict must be unanimous, that is, all of you must agree to the
same verdict. Only one verdict may be returned as to [the crime] [each crime]
charged [, except as to Count (insert numberinsert number), where the
defendant can be found guilty of more than one lesser included crime]. The
verdict must be in writing and for your convenience the necessary verdict
form[s] [has] [have] been prepared for you. [It is] [They are] as follows (read
verdict form(s)):

       Give if State is proceeding on both theories of First Degree Murder
(premeditated and felony murder). Mansfield v. State, 911 So. 2d 1160 (Fla. 2005).
       If you return a verdict of guilty to the charge of First Degree Murder, it
is not necessary that all of you agree the State proved First Degree
Premeditated Murder and it is not necessary that all of you agree the State
proved First Degree Felony Murder. Instead, what is required is that all of
you agree the State proved either First Degree Premeditated Murder or First
Degree Felony Murder.

      In cases of multiple defendants or multiple charges, give 3.12(a), (b), or (c)
as applicable.

      A sample of possible verdict forms for typical variables in combinations of
defendants and charges follows:

1.    Verdict form for single count, single defendant.




                                        -8-
      We, the jury, find as follows, as to the defendant in this case: (check only
      one)
      ___a. The defendant is guilty of (crime charged).
      ___b. The defendant is guilty of (a lesser included offense).
      ___c. The defendant is not guilty.


2.    Verdict form for multiple counts, single defendant.

      We, the jury, find as follows, as to Count I of the charge: (check only
            one as to this count)
      ___a. The defendant is guilty of (crime charged).
      ___b. The defendant is guilty of (a lesser included offense).
      ___c. The defendant is not guilty.
      We, the jury, find as follows, as to Count II of the charge: (check only
            one as to this count)
      ___a. The defendant is guilty of (crime charged).
      ___b. The defendant is guilty of (a lesser included offense).
      ___c. The defendant is not guilty.

3.    Verdict form if a count is a crime where the defendant can be guilty of
more than one lesser included offense.

      We, the jury, find as follows, as to Count (insert number) of the
             charge:
      ___a. The defendant is guilty of (crime charged).
      (If the defendant is not guilty of the main charge, then proceed to the
             lesser included offenses):
      ___b. The defendant is guilty of lesser included offense(s). (check as
             many lesser included offenses as apply)
      ___ The defendant is guilty of (lesser included offense).
      ___ The defendant is guilty of (lesser included offense).
      ___ The defendant is guilty of (lesser included offense).
      ___ The defendant is guilty of (lesser included offense).
      (If the defendant is not guilty of the main charge or any lesser
             included offenses, then proceed to not guilty):
      ___c. The defendant is not guilty.


                                        -9-
      Use separate verdict for each defendant.
4.    Verdict form for multiple counts, multiple defendants.

      We, the jury, find as to the defendant, (name of defendant), as follows:
            As to Count I: (check only one as to this count)
      ___a.    The defendant is guilty of (crime charged).
      ___b.    The defendant is guilty of (a lesser included offense).
      ___c.    The defendant is not guilty.
            As to Count II: (check only one as to this count)
      ___a.    The defendant is guilty of (crime charged).
      ___b.    The defendant is guilty of (a lesser included offense).
      ___c.    The defendant is not guilty.

5.    Verdict form when insanity is a defense.

      ___a.     The defendant is guilty of (crime charged).
      ___b.     The defendant is guilty of (a lesser included offense).
      ___c.     The defendant is not guilty.
      ___d.     The defendant is not guilty because legally insane.

       Read if applicable. Special finding forms #6 and #7 below refer to
§ 775.087, Fla. Stat. There are other statutes requiring special findings.
       In addition to the verdict form[s], there [is] [are] [a] Special Finding
form[s] for Count[s] (insert number(s)).

6.     Special finding form regarding § 775.087(1), Fla. Stat.

       If you found the defendant guilty of (name of crime), you must then answer
the following question:

      During the commission of the offense, did the defendant personally [carry]
      [display] [use] [threaten to use] [attempt to use] a [weapon] [firearm]?

              ______________ Yes


              ______________ No



                                       - 10 -
7.       Special finding form regarding § 775.087(2), Fla. Stat.

       If you found the defendant guilty of (name of crime), you must then answer
the following question[s]:

     1. During the commission of the offense, did the defendant actually possess a
        [firearm] [destructive device]?

              ______________ Yes

              ______________ No

     2. During the commission of the offense, did the defendant personally
        discharge a [firearm] [destructive device]?

              ______________ Yes

              ______________ No

     3. During the commission of the offense and as a result of the discharge
        of the [firearm] [destructive device], was death caused to (victim)?

              ______________ Yes

              ______________ No


                                     Comments

      This instruction must be amended if the defendant is relying on an insanity
defense.

       It is highly recommended that trial courts rely solely on the core offense in
determining the order of lesser included offenses on a verdict form. Trial courts
should then provide an interrogatory, separate from the verdict form for the core
offense, for the jury to determine the existence of circumstances that can result in
mandatory minimum sentences, sentence enhancements, or offense
reclassifications. In addition, interrogatories may be used for crimes such as

                                        - 11 -
burglary and robbery, in which the aggravating factor is part of the statute
governing the substantive crime. Sanders v. State, 944 So. 2d 203 (Fla. 2006).

       For compounded offenses, such as Burglary with an Assault, the jury can
convict on two lesser-included offenses. See Gian-Grasso v. State, 899 So. 2d 392
(Fla. 4th DCA 2005).

     This verdict form was adopted in 1981 and was amended in October 1981,
December 1995, and 2016 [199 So. 3d 234], and 2018.



                         3.12(a) SINGLE DEFENDANT,
                     MULTIPLE COUNTS OR INFORMATIONS

      A separate crime is charged in each [count of the information]
[indictment] [information] and, although they have been tried together, each
crime and the evidence applicable to it must be considered separately and a
separate verdict returned as to each. A finding of guilty or not guilty as to one
crime must not affect your verdict as to the other crime(s) charged [, except as
explained in the instruction for legally interlocking counts].

                                     Comments

       See instruction 3.12(d) if legally interlocking crimes are charged, but this
instruction should be read for any non-legally interlocking counts.

      This instruction was adopted in 1981 and was amended in 2008 [996 So. 3d
854] and 2018.



                        3.12(c) MULTIPLE COUNTS OR
                   INFORMATIONS, MULTIPLE DEFENDANTS

      A separate crime is charged against each defendant in each [count of the
information] [information] [indictment]. The defendants have been tried
together; however, the charges against each defendant and the evidence
applicable to [him] [her] must be considered separately. A finding of guilty or
not guilty as to [one] [both] [or] [some] of the defendants must not affect your

                                        - 12 -
verdict as to any other defendant(s) or other crimes charged [, except as
explained in the instruction for legally interlocking counts].


                                     Comments

       See instruction 3.12(d) if legally interlocking crimes are charged, but this
instruction should be read for any non-legally interlocking counts, or multiple
informations or indictments.

      This instruction was adopted in 1981 and was amended in 2008 [996 So. 2d
854] and 2018.


                   3.12(d) LEGALLY INTERLOCKING COUNTS

      Counts [A and B] (substitute appropriate count numbers) are linked in that
the crime charged in count [A] (identify predicate charged crime) is an essential
element of the crime charged in count [B] (identify compound charged crime).
You should first consider the evidence applicable to count [A]. If you find the
crime in count [A] has not been proven beyond a reasonable doubt, you must
find the defendant not guilty on both counts [A] and [B].

      If, on the other hand, you find that the crime charged in count [A] has
been proven beyond a reasonable doubt, you must then consider the evidence
applicable to count [B]. A guilty verdict on count [A] does not require a guilty
verdict on count [B]. You should find the Defendant guilty on count [B] only if
you find all the elements of that crime, including the essential elements
contained in count [A], were proven beyond a reasonable doubt.

                                     Comments

      Do not read instruction 3.12(a) or instruction 3.12(c) if the jury is instructed
only on legally interlocking counts.

      Legally interlocking crimes are charged when the crime charged in one
count of the information or indictment is an essential element of the crime charged
in another count. As a general rule, inconsistent verdicts are permitted because
they may be the result of jury lenity. There is only one recognized exception to this
general rule, namely, the “true inconsistent verdict” exception. True inconsistent


                                        - 13 -
verdicts are “those in which an acquittal on one count negates a necessary element
for conviction on another count.” Read cases such as Brown v. State, 959 So. 2d
218 (Fla. 2007) and Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983).

      This instruction was adopted in 2008 [996 So. 2d 854] and amended in 2018.


         3.12(f) CRIME LEGALLY INTERLOCKING WITH A SPECIAL
                  FINDING WITHIN THAT SAME COUNT

       The charge of (insert appropriate charge) and the special finding
associated with that charge are interrelated because a special finding that the
defendant (insert the element of the special finding) is an essential element of
(insert appropriate charge).

      Accordingly, you should not return a verdict finding the defendant
guilty of (insert appropriate charge) unless you also find, in the special finding,
that the State proved the allegation that the defendant (insert the element of the
special finding).

       On the other hand, if you decide that the allegation that the defendant
(insert the element of the special finding) in the special finding [for Count (insert
the appropriate number of the relevant count)] has not been proven beyond a
reasonable doubt, then you should not return a verdict finding the defendant
guilty of (insert appropriate charge).

                                     Comments

       In appropriate cases, this instruction may be used in order to avoid a true
inconsistent verdict. As a general rule, inconsistent verdicts are permitted because
they may be the result of jury lenity. Florida case law recognizes an exception to
the general rule in cases of a “true inconsistent verdict.” True inconsistent verdicts
are those in which an acquittal on one count negates a necessary element for
conviction on another count. See Brown v. State, 959 So. 2d 218 (Fla. 2007).

      A true inconsistent verdict may occur because a) a crime and b) the special
finding associated with that same crime, are legally interlocking. For example, if a
defendant was charged with Aggravated Battery (Deadly Weapon) along with the
10-year minimum mandatory for actual possession of a firearm; if there was no


                                        - 14 -
evidence that the defendant was acting as an aider or abettor; and if the only
weapon the defendant is alleged to have used was undisputedly a firearm, it would
be inconsistent for the jury to find the defendant guilty of Aggravated Battery
(Deadly Weapon) but not guilty of the special finding that the defendant actually
possessed a firearm. See, for example, Proctor v. State, 205 So. 3d 784 (Fla. 2d
DCA 2016) and Gerald v. State, 132 So. 3d 891, 893-94 (Fla. 1st DCA 2014). On
the other hand, if there was a dispute about the nature of the deadly weapon used or
if there was a dispute about whether the defendant was acting as an aider or
abettor, then a guilty verdict on an Aggravated Battery (Deadly Weapon) charge
along with a not guilty verdict pertaining to actual possession of a firearm, may not
be “truly inconsistent.” See State v. McGhee, 174 So. 3d 470 (Fla. 1st DCA 2015).

      This instruction was adopted in 2018.




                                       - 15 -
