          Supreme Court of Florida
                                  ____________

                                  No. SC19-424
                                  ____________


   IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                       REPORT 2019-02.

                                December 19, 2019

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 amending the following existing standard criminal

jury instructions: 7.3 (Felony Murder—First Degree), 7.5 (Felony Murder—

Second Degree), and 7.6 (Felony Murder—Third Degree). The Committee

published its proposal to amend instruction 7.3 in The Florida Bar News. No

comments were received by the Committee. The Committee’s report follows this

Court’s referral arising from the Court’s decision in In re Standard Jury

Instructions in Criminal Cases—Report 2018-08, 259 So. 3d 754, 756 (Fla. 2018).
      The only change to the instructions which merits discussion pertains to

instruction 7.3. In our earlier case, we modified the italicized note pertaining to

Williams v. State, 242 So. 3d 280 (Fla. 2018). In re Std. Jury Instrs. in Criminal

Cases—Report 2018-08, 259 So. 3d at 756. Upon further consideration, we

reauthorize instruction 7.3 for publication and use without that language previously

added on the Court’s own motion.

      Having considered the Committee’s report, we authorize for publication and

use amended instructions 7.3, 7.5, and 7.6 as proposed, and as set forth in the

appendix to this opinion.1 In light of our authorization of instruction 7.3 as

proposed, we also agree with the Committee that it is unnecessary at this time to

further amend instruction 7.2. New language is indicated by underlining, and

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

neither requesting additional or alternative instructions nor contesting the legal




       1. 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.


                                         -2-
correctness of the instructions. We further 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. The instructions as set forth in the appendix shall be

effective when this opinion becomes final. However, because the amendments to

instructions 7.5 and 7.6 were not published for comment prior to their

authorization, interested persons shall have seventy-five days from the date of this

opinion in which to file comments with the Court.2

      It is so ordered.




        2. All comments must be filed with the Court on or before March 3, 2020,
with a certificate of service verifying that a copy has been served on the
Committee Chair, The Honorable F. Rand Wallis, c/o Bart Schneider, Office of the
General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399–1925,
schneidb@flcourts.org, as well as a separate request for oral argument if the person
filing the comment wishes to participate in oral argument, which may be scheduled
in this case. The Committee Chair has until March 24, 2020, to file a response to
any comments filed with the Court. If filed by an attorney in good standing with
The Florida Bar, the comment must be electronically filed via the Portal in
accordance with In re Electronic Filing in the Supreme Court of Florida via the
Florida Courts E–Filing Portal, Fla. Admin. Order No. AOSC13–7 (Feb. 18,
2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the
comment may be, but is not required to be, filed via the Portal. Comments filed
via the Portal must be submitted in Microsoft Word 97 or higher. See In re
Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-
27 (May 9, 2017). Any person unable to submit a comment electronically must
mail or hand-deliver the originally signed comment to the Florida Supreme Court,
Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399–1927; no
additional copies are required or will be accepted.


                                         -3-
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.

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

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




                                       -4-
                                  APPENDIX

                   7.3 FELONY MURDER — FIRST DEGREE
                           § 782.04(1)(a), Fla. Stat.
       In the absence of an express concession that the homicide was not excusable
or justified, the trial judge must also read Instruction 7.1, Introduction to
Homicide.
       To prove the crime of First Degree Felony Murder, the State must prove
the following three elements beyond a reasonable doubt:

      1.    (Victim) is dead.

            Give 2a, 2b, and/or 2c as applicable.
      2.    a.    While engaged in the commission of a[n] (felony alleged),
                  [(defendant)] [(defendant’s) accomplice] caused the death of
                  (victim).
            b.     While engaged in the attempt to commit a[n] (felony
                   alleged), [(defendant)] [(defendant’s) accomplice]
                   caused the death of (victim).
            c.     While escaping from the immediate scene after
                   [committing] [attempting to commit] a[n] (felony
                   alleged), [(defendant)] [(defendant’s) accomplice]
                   caused the death of (victim).
      Give 3a if defendant was the person who actually killed the deceased.
      3.    a.     (Defendant) was the person who actually killed
                   (victim).
      Give 3b if defendant was not the person who actually killed the deceased.
            b.     (Victim) was killed by a person other than (defendant);
                   but both (defendant) and the person who killed
                   (victim) were principals in the commission of (crime
                   alleged).
      In order to convict the defendant of First Degree Felony Murder, it is
not necessary for the State to prove that the defendant had a premeditated
design or intent to kill.
      1.    Define the felony alleged.

                                         -5-
      2.     If 2b above is givenapplicable, immediately give the attempt
             instruction (5.1).

      3.     If 3b above is givenapplicable, immediately give the principal
             instruction (3.5(a)).

      4.     If the underlying felony is charged as a separate count, read, at
             an appropriate time, instruction 3.12(d)(Legally Interlocking
             Counts). Failure to do so may result in an impermissible
             inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218
             (Fla. 2007).

       Give if the defendant was a juvenile at the time of the crime alleged. §
775.082(1)(b), Fla. Stat. Williams v. State, 242 So. 3d 280 (Fla. 2018). If the jury
were to find the defendant guilty of First Degree Premeditated Murder in a case
where no principals instruction is given, the question of whether the defendant
intended to kill or attempted to kill would inhere in that verdict. Therefore, the
finding below should be made only for cases involving First Degree Felony
Murder where it is alleged in the charging document that the defendant actually
killed, intended to kill, or attempted to kill the victim. A general verdict for First
Degree Murder without a specific finding of premeditation would require the
paragraph below to be given.
       If you find (defendant) guilty of First Degree Felony Murder, you must
also determine whether the State proved beyond a reasonable doubt, that [he]
[she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).
                             Lesser Included Offenses
       FIRST DEGREE (FELONY) MURDER — 782.04(1)(a)
 CATEGORY ONE     CATEGORY TWO FLA. STAT. INS.
                                                 NO.
                  Second degree        782.04(2) 7.4
                  (depraved mind)
                  murder
 Manslaughter                          782.07    7.7
                  Aggravated           782.07(3) 7.7(a)
                  Manslaughter (Child)
                  Second degree        782.04(3) 7.5
                  (felony) murder
                  Aggravated           782.07(2) 7.7(a)


                                         -6-
                          Manslaughter
                          (Elderly
                          Person/Disabled
                          Adult)
                          Aggravated               782.07(4)       7.7(a)
                          Manslaughter
                          (Officer/Firefighter/
                          EMT/Paramedic)
                          Third degree (felony)    782.04(4)       7.6
                          murder*
                          Aggravated battery       784.045         8.4
                          Felony battery           784.041(1)      8.5
                          Aggravated assault       784.021         8.2
                          Battery                  784.03          8.3
                          Assault                  784.011         8.1


                                     Comments
      See Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when the
victim is a law enforcement officer, correctional officer, etc.
       *In some cases, Third Degree Felony Murder may be a necessary lesser-
included offense of First Degree Felony Murder. For example, Third Degree
Felony Murder with Child Abuse as the underlying felony may be a necessarily
lesser-included offense of First Degree Felony Murder if Aggravated Child Abuse
is the underlying felony.
       This instruction was adopted in 1981 and was amended in 1985, 1992 [603
So. 2d 1175], 2011 [53 So. 3d 1017], 2014 [146 So. 3d 1110], 2018 [236 So. 3d
282], and 2018 [259 So. 3d 754], and 2019.


                   7.5 FELONY MURDER — SECOND DEGREE
                            § 782.04(3), Fla. Stat.

       In the absence of an express concession that the homicide was not excusable
or justified, the trial judge must also read Instruction 7.1, Introduction to
Homicide.



                                        -7-
     To prove the crime of Second Degree Felony Murder, the State must
prove the following four elements beyond a reasonable doubt:

     1.    (Victim) is dead.

     2.    (Defendant) was not the person who actually killed (victim),
           but (defendant) did commit or did knowingly aid, abet,
           counsel, hire, or otherwise procure the commission of a[n]
           (felony alleged).

     Give 3a, 3b, and/or 3c as applicable.
     3.    a.     (Victim’s) death was caused during and was a
                  consequence of the commission of the (felony alleged).

           b.    (Victim’s) death was caused during and was a
                 consequence of the attempted commission of the
                 (felony alleged).

           c.    (Victim’s) death was caused during and was a
                 consequence of the escape from the immediate scene
                 of the [(felony alleged)] [attempt to commit the (felony
                 alleged)].

     4.    The person who actually killed (victim) was not involved in
           the commission or the attempt to commit the (crime alleged).

     1.    Define the crimefelony alleged. If Burglary, also define crime
           that was object of burglary.

     2.    If 3b above is givenapplicable, also define “immediately give
           the attempt” instruction (see 5.1).

     3.    If the underlying felony is charged as a separate count, read
           instruction 3.12(d)(Legally Interlocking Counts). Failure to do
           so may result in an impermissible inconsistent verdict. See, e.g.,
           Brown v. State, 959 So. 2d 218 (Fla. 2007).




                                      -8-
                             Lesser Included Offenses

        SECOND DEGREE (FELONY) MURDER — 782.04(3)
 CATEGORY ONE     CATEGORY TWO          FLA.STAT. INS. NO.
 Manslaughter                           782.07    7.7
                  Aggravated            782.07(3) 7.7(a)
                  Manslaughter (Child)
                  Aggravated            782.07(2) 7.7(a)
                  Manslaughter (Elderly
                  Person/Disabled
                  Adult)
                  Aggravated            782.07(4) 7.7(a)
                  Manslaughter
                  (Officer/Firefighter/
                  EMT/Paramedic)
                  Third degree (felony) 782.04(4) 7.6
                  murder

                                     Comments

       SeeSee Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when
the victim is a law enforcement officer, correctional officer, etc.

      This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
2014 [146 So. 3d 1110], and 2018 [236 So. 3d 282], and 2019.


                     7.6 FELONY MURDER — THIRD DEGREE
                             § 782.04(4), Fla. Stat.

       In the absence of an express concession that the homicide was not excusable
or justified, the trial judge must also read Instruction 7.1, Introduction to
Homicide.

     To prove the crime of Third Degree Felony Murder, the State must
prove the following three elements beyond a reasonable doubt:

      1.     (Victim) is dead.


                                        -9-
      Give 2a, 2b, and/or 2c as applicable.
      2.    a.     While engaged in the commission of a[n] (felony
                   alleged), [(defendant)] [(defendant’s) accomplice]
                   caused the death of (victim).

            b.    While engaged in the attempt to commit a[n] (felony
                  alleged), [(defendant)] [(defendant’s) accomplice)]
                  caused the death of (victim).

            c.    While escaping from the immediate scene after
                  [committing] [attempting to commit] a[n] (felony
                  alleged), [(defendant)] [(defendant’s) accomplice]
                  caused the death of (victim).

      Give 3a if defendant was the person who actually killed the deceased.
      3.    a.      (Defendant) was the person who actually killed (victim).

      Give 3b if defendant was not the person who actually killed the deceased.
            b.     (Victim) was killed by a person other than (defendant);
                   but both (defendant) and the person who killed
                   (victim) were principals in the commission of (crime
                   alleged).

      It is not necessary for the State to prove the killing was perpetrated with
a design to effect death.
      1.     Define the crimefelony alleged.

      2.    If 2b above is givenapplicable, also defineimmediately give the
            “attempt” instruction (see 5.1).

      3.    If 3b is givenapplicable, immediately give principal instruction
           (3.5(a)).

      4.    If the underlying felony is charged as a separate count, read
            instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may



                                      - 10 -
             result in an impermissible inconsistent verdict. See, e.g., Brown v.
             State, 959 So. 2d 218 (Fla. 2007).

                             Lesser Included Offenses

         THIRD DEGREE (FELONY) MURDER — 782.04(4)
 CATEGORY ONE      CATEGORY TWO       FLA. STAT. INS. NO.
 Manslaughter                         782.07     7.7
                   Felony Battery     784.041(1) 8.5
                   Aggravated assault 784.021    8.2
                   Battery            784.03     8.3
                   Assault            784.011    8.1

                                     Comments

       SeeSee Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when
the victim is a law enforcement officer, correctional officer, etc.

      This instruction was adopted in 1981 and amended in 1992 [603 So. 2d
1775], 1994 [639 So. 2d 602], 2014 [146 So. 3d 1110], and 2018 [236 So. 3d 282],
and 2019.




                                        - 11 -
