                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

RANDY KENT,                             NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-5666

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed April 8, 2015.

An appeal from the Circuit Court for Liberty County.
Jonathan E. Sjostrom, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief-
Criminal Appeals, Tallahassee, for Appellee.




PER CURIAM.

      Appellant Randy Kent appeals his conviction for felony battery arguing the

trial court erred in failing to give a portion of a standard jury instruction. While the

trial court erred, we hold the error was harmless and therefore affirm.
      During the charge conference below, counsel and the trial court discussed

some of the recently revised jury instructions. Among the revisions is the addition

of the following language to standard criminal instruction 3.9:

             Whether the State has met its burden of proof does not
             depend upon the number of witnesses it has called or
             upon the number of exhibits it has offered, but instead
             upon the nature and quality of the evidence presented.

This instruction was adopted by the Florida Supreme Court in September 2013. In

Re Standard Jury Instructions in Criminal Cases, 122 So. 3d 302 (Fla. 2103). The

trial court found this provision to be “redundant both of the burden of proof

instruction . . . as well as of the weighing the evidence [sic].” Thus, the trial court

declined to give it, despite the request of appellant that all of the standard

instructions be given without alteration.

      There is a long line of cases which hold that the standard jury instructions

are presumed correct and are preferred over special instructions.            See e.g.,

Stephens v. State, 787 So. 2d 747 (Fla. 2001); Alvarez v. State, 890 So. 2d 389

(Fla. 1st DCA 2004), et al. As the Florida Supreme Court has explained:

             It is important that trial courts, which retain the critical
             role of determining the appropriate law upon which the
             jury should be instructed, indicate the basis of any
             disagreement with the standard jury instructions. The
             committees that draft standard instructions work hard in
             developing these restatements of Florida law in clear and
             straightforward language to assist the courts in carrying

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             out their responsibility to explain the law to citizen
             jurors. Confidence in the use of these instructions is
             undermined when their use is rejected without
             explanation. On the other hand, trial judges perform an
             important service to the law when they detect some
             problem with a standard instruction or otherwise explain
             why its use is inappropriate in a particular case.

State v. Hamilton, 660 So. 2d 1038, 1046 (Fla. 1995).

      Because the standard instructions are preferred, the Florida Rules of

Criminal Procedure sets forth a procedure which is to be followed when a trial

court opts not to use the standard instructions; rule 3.985 provides:

             The forms of Florida Standard Jury Instructions in
             Criminal Cases appearing on the court's website . . . may
             be used by the trial judges of this state in charging the
             jury in every criminal case to the extent that the forms are
             applicable, unless the trial judge shall determine that an
             applicable form of instruction is erroneous or
             inadequate, in which event the judge shall modify or
             amend the form or give such other instruction as the trial
             judge shall determine to be necessary to instruct the jury
             accurately and sufficiently on the circumstances of the
             case; and, in such event, the trial judge shall state on the
             record or in a separate order the respect in which the
             judge finds the standard form erroneous or inadequate
             and the legal basis of the judge's finding.

(Emphasis added). A trial court’s obligation under this rule is mandatory. Holt v.

State, 987 So. 2d 237 (Fla. 1st DCA 2008)(citing State v. Hamilton, 660 So. 2d at

1045-46).

      In the instant case, the trial court did not find the instruction at issue was

“erroneous or inadequate,” but rather found it duplicative. Such a reason is not
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sufficient, and thus, the trial court erred. However, automatic reversal is not

required when a trial court strays from the standard instructions. Kelley v. State,

486 So. 2d 578 (Fla. 1986); State v. Bryan, 290 So. 2d 482 (Fla. 1974). Instead,

such an error is subject to a harmless error analysis. Hamilton, 660 So. 2d at 1046

n. 13. Here, the failure to instruct the jury that the State’s burden of proof did not

depend on the quantity of evidence presented but on the quality thereof did not

result in a miscarriage of justice, nor is there a “reasonable possibility that the error

contributed to the conviction.” § 59.041, Fla. Stat. (2013); State v. DiGuillio, 491

So. 2d 1129 (Fla. 1986).

      Accordingly, we AFFIRM.

ROBERTS, SWANSON, and BILBREY, JJ., CONCUR.




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