          Supreme Court of Florida
                                  ____________

                                  No. SC18-1666
                                  ____________

  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                     REPORT 2018-08.

                                December 13, 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 for publication and use the amended

standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee filed a report proposing amendments to standard criminal

jury instructions 7.3 (Felony Murder — First Degree), 7.4 (Murder — Second

Degree), and 10.7(d) (Throwing, Making, Placing, Projecting, or Discharging

Destructive Device). The proposals were published in The Florida Bar News; the

Committee did not receive any comments.

      The Committee’s proposed amendments to instructions 7.3 and 7.4 derive

from the Court’s referral wherein the Committee was requested “to submit a report

proposing amendments to the applicable homicide criminal jury instructions, in
accordance with the Court’s recent decision in Williams v. State, [242 So. 3d 280]

SC17-506 (Fla. Feb. 22, 2018)” and specifically to “consider the holding that

Alleyne v. United States, 570 U.S. 99 (2013), requires the jury to make the factual

finding under section 775.082(1)(b), Florida Statutes (2016), as to whether a

juvenile offender actually killed, intended to kill, or attempted to kill the victim.”

The Committee also considered instruction 10.7 in light of Williams, and

concluded that that decision did not implicate the instruction, though other

proposed changes were made. We authorize the instructions as proposed for

publication and use, and discuss the more significant changes as follows.

      In Williams, the Court considered the following certiﬁed question: “Does

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013),

require the jury and not the trial court to make the factual ﬁnding under section

775.081(1)(b), Florida Statutes (2016), as to whether a juvenile oﬀender actually

killed, intended to kill, or attempted to kill the victim?” Williams, 242 So. 3d at

282. We answered the question in the aﬃrmative, but concluded that Alleyne

violations are subject to harmless error review. Id. Speciﬁcally, the Court stated in

pertinent part:

      Because a finding of actual killing, intent to kill, or attempt to kill
      “aggravates the legally prescribed range of allowable sentences,”
      Alleyne, 570 U.S. at 115, 133 S.Ct. 2151, by increasing the sentencing
      floor from zero to forty years and lengthening the time before which a
      juvenile offender is entitled to a sentence review from fifteen to
      twenty-five years, this finding is an “element” of the offense, which

                                          -2-
      Alleyne requires be submitted to a jury and found beyond a reasonable
      doubt.

Id. at 288. Based on Williams, the Committee proposes adding the following note

to the trial court and instruction to instruction 7.3:

             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, 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).

We agree with this addition to instruction 7.3 because if a juvenile is found guilty

of First Degree Felony Murder, it would not necessarily be evident from the

verdict whether the defendant actually killed, intended to kill, or attempted to kill

the victim, as required to enhance the juvenile defendant’s sentence. In addition,

we modify the proposed italicized paragraph above, as set forth in the appendix to

the opinion, to state that whether the defendant intended to kill or attempted to kill

would inhere in a First Degree Premeditated Murder case which did not involve the

principals instruction. We also refer to the Committee the issue of whether a




                                          -3-
similar instruction should be given (and findings made) when the State relies on a

principals theory to prove a case of First Degree Premeditated Murder.

      With regard to instruction 7.4, the Committee proposes adding the following

trial court note and instruction:

             Give if the defendant was a juvenile at the time of the crime
      alleged. § 775.082(3), Fla. Stat. Williams v. State, 242 So. 3d 280
      (Fla. 2018). The ﬁnding below should be made only for cases
      involving Second Degree Murder where it is alleged in the charging
      document that the defendant actually killed, intended to kill, or
      attempted to kill the victim.
             If you find (defendant) guilty of Second Degree 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).

This change is in accord with Williams because the Florida Legislature created

different sentence review dates depending upon whether the juvenile defendant

actually killed, intended to kill, or attempted to kill the victim, applicable to the

offense of Second Degree Murder if reclassified as a life felony. See

§ 775.082(3)(a)5, (3)(b)2, Fla. Stat.

      Turning to instruction 10.7, the more significant changes include updating

the title from “Throwing, Making, Placing, Projecting, or Discharging Destructive

Device” to “Possessing, Throwing, Making, Placing, Projecting, or Discharging a

Destructive Device Resulting in Death.” Also, the concept of “possession,” as

authorized in In re Standard Jury Instructions in Criminal Cases—Report 2017-03,

238 So. 3d 182, 183 (Fla. 2018), is added.

                                          -4-
      Having considered the Committee’s report, we authorize the amended

instructions as set forth in the appendix to this opinion, for publication and use. 1

New language is indicated by underlining, and deleted language is indicated by

struck-through type. 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. 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 correctness of the instructions. The instructions as set forth in

the appendix shall become effective when this opinion becomes final.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR
REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD

       1. �e 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.

                                          -5-
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.

Original Proceedings – 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




                                       -6-
                                  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).




                                       -7-
      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 crimefelony alleged. If Burglary, also define crime
             that was the object of burglary.

      2.     If 2b above is given, alsoimmediately definegive the “attempt”
             instruction (see 5.1).

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

      4.     Since the statute does not require its proof, it is not necessary to
             define “premeditation.”

      54.    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).




                                         -8-
                             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)
                  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

       SeeSee 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


                                        -9-
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], and 2018 [236 So.
3d 282], and 2018.



                   7.4 MURDER — SECOND DEGREE
                           § 782.04(2), 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 Second Degree Murder, the State must prove the
following three elements beyond a reasonable doubt:

      1.    (Victim) is dead.

      2.    The death was caused by the criminal act of (defendant).

      3.    There was an unlawful killing of (victim) by an act
            imminently dangerous to another and demonstrating a
            depraved mind without regard for human life.

     Definitions.
     An “act” includes a series of related actions arising from and performed
pursuant to a single design or purpose.

     An act is “imminently dangerous to another and demonstrating a
depraved mind” if it is an act or series of acts that:

      1.    a person of ordinary judgment would know is reasonably
            certain to kill or do serious bodily injury to another, and

      2.    is done from ill will, hatred, spite, or an evil intent, and

      3.    is of such a nature that the act itself indicates an

                                      - 10 -
             indifference to human life.

      In order to convict of Second Degree Murder, it is not necessary for the
State to prove the defendant had an intent to cause death.

       Give only if there is evidence that the defendant acted in the heat of passion
on legally adequate provocation.
       An issue in this case is whether (defendant) did not have a depraved
mind without regard for human life because [he] [she] acted in the heat of
passion based on adequate provocation. In order to find that the defendant
did not have a depraved mind without regard for human life because [he]
[she] acted in the heat of passion based on adequate provocation:

             a.    there must have been a sudden event that would have
                   suspended the exercise of judgment in an ordinary
                   reasonable person; and

             b.    a reasonable person would have lost normal self-
                   control and would have been driven by a blind and
                   unreasoning fury; and

             c.    there was not a reasonable amount of time for a
                   reasonable person to cool off; and

             d.    a reasonable person would not have cooled off before
                   committing the act that caused death; and

             e.    (defendant) was, in fact, so provoked and did not cool
                   off before [he] [she] committed the act that caused the
                   death of (victim).

      If you have a reasonable doubt about whether the defendant had a
depraved mind without regard for human life because [he] [she] acted in the
heat of passion based on adequate provocation, you should not find [him]
[her] guilty of Second Degree Murder.




                                        - 11 -
        Give if the defendant was a juvenile at the time of the crime alleged.
§ 775.082(3), Fla. Stat. Williams v. State, 242 So. 3d 280 (Fla. 2018). The finding
below should be made only for cases involving Second Degree Murder where it is
alleged in the charging document that the defendant actually killed, intended to
kill, or attempted to kill the victim.
        If you find (defendant) guilty of Second Degree 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

   SECOND DEGREE (DEPRAVED MIND) MURDER — 782.04(2)
 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
                 Vehicular homicide    782.071    7.9
                 (Nonhomicide lessers) 777.04(1)  6.4
                 Attempted Second
                 Degree Murder
                 Aggravated Battery    784.045    8.4
                 Attempted             782.07 and 6.6
                 Manslaughter by Act   777.04
                 Felony battery        784.041(1) 8.5
                 Aggravated Assault    784.021    8.2
                 Battery               784.03     8.3
                 Culpable negligence   784.05(2)  8.9
                 Culpable negligence   784.05(1)  8.9
                 Assault               784.011    8.1


                                       - 12 -
                                     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 1997 [697 So. 2d 84],
2008 [994 So. 2d 1038], 2014 [137 So. 3d 995], and 2018 [236 So. 3d 282], and
2018.



10.7(d) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN DEATH
                       § 790.161(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 (crime charged), the State must prove the
following two elements beyond a reasonable doubt:

      1.     (Defendant) willfully and unlawfully

                   [made]
                   [possessed]
                   [threw]
                   [placed]
                   [projected]
                   [discharged]
                   [attempted to [make] [possess] [throw] [place] [project]
                   [discharge]]

             a destructive device.

      2.     The act resulted in the death of another person.

      Definition


                                        - 13 -
      A “"destructive device"” is defined as (adapt from § 790.001(4),
Fla._Stat., as required by the allegations).

      “Willfully” means intentionally, knowingly, and purposely.
      Possession. Give if applicable.
      To prove (defendant) “possessed a destructive device,” the State must
prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the
destructive device and b) intentionally exercised control over that destructive
device.
      Give if applicable.
      Control can be exercised over a destructive device whether the
destructive device is carried on a person, near a person, or in a completely
separate location. Mere proximity to a destructive device does not establish
that the person intentionally exercised control over the destructive device in
the absence of additional evidence. Control can be established by proof that
(defendant) had direct personal power to control the destructive device or the
present ability to direct its control by another.
     Joint possession. Give if applicable.
     Possession of a destructive device may be sole or joint, that is, two or
more persons may possess a destructive device.




                                     - 14 -
                        Lesser Included Offenses

 POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
     OR DISCHARGING DESTRUCTIVE DEVICE — 790.161(4)
CATEGORY ONE            CATEGORY TWO            FLA. STAT. INS. NO.
Possessing, throwing,                           790.161(13) 10.7(ac)
making, placing,
projecting, or
discharging destructive
device resulting in
bodily harm
Possessing, throwing,                           790.161(31) 10.7(ca)
making, placing,
projecting, or
discharging destructive
device
                        Possessing, throwing, 790.161(2)    10.7(b)
                        making, placing,
                        projecting, or
                        discharging destructive
                        device, etc.
                        Aggravated assault      784.021     8.2
                        Assault                 784.011     8.1

                                Comment

    This instruction was adopted in 1992 and amended in 2018.




                                   - 15 -
