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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DAVID BRIAN USRY,                  )
                                   )
           Appellant,              )
                                   )
v.                                 )                      Case No. 2D18-4435
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed November 13, 2019.

Appeal from the Circuit Court for Pasco
County; Susan G. Barthle, Judge.

Howard L. Dimmig, II, Public Defender, and
Andrea Flynn Mogensen, Special Assistant
Public Defender, Bartow, for Appellant.

Ashley 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.


BADALAMENTI, Judge

             David 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.

             Following 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
             anything.

             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



                                          -2-
              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 evidence.

              If you have a reasonable doubt, you should find the
              defendant not guilty. If you have no reasonable doubt, you
              should find the defendant guilty.

Fla. Std. Jury Instr. (Crim.) 3.7. Neither defense counsel nor counsel for the State

included the instruction or an alternative charge properly addressing the reasonable-

doubt standard in the compilation for the jury charge. And as the trial court read the

instructions to the jury, neither counsel alerted the court as to the omission of a

reasonable-doubt instruction. Simply stated, the jury was never instructed as to

reasonable doubt.

              Mr. Usry argues, and the State properly concedes, that the failure to

instruct the jury as to the critical concept of reasonable doubt constitutes fundamental

error. We accept the State's concession and accordingly reverse and remand for a new

trial. See Curry v. State, 169 So. 3d 1258, 1259-60 (Fla. 5th DCA 2015) (reversing and

remanding for new trial because the trial court's failure to instruct the jury as to

reasonable doubt constituted fundamental error); Cavagnaro v. State, 117 So. 3d 1111,

1112 (Fla. 3d DCA 2012) ("We reverse the convictions because the failure to give the

jury any reasonable doubt instruction at all, though unpreserved, is fundamental error.");

see also Arizona v. Fulminante, 499 U.S. 279, 291 (1991) ("[I]t is impossible to assess

the effect on the jury of the omission of the more fundamental instruction on reasonable

doubt. . . . [O]mission of a reasonable-doubt instruction, though a 'trial error,' distorts the




                                             -3-
very structure of the trial . . . ."). Given this disposition, we do not address Mr. Usry's

remaining issues on appeal.

              Reversed and remanded with instructions.


CASANUEVA and LUCAS, JJ., Concur.




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