          Supreme Court of Florida
                                  ____________

                                  No. SC12-462
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                     INSTRUCTION 6.6.

                                [February 6, 2014]

                             [REVISED OPINION]


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 instruction 6.6 (Attempted

Manslaughter by Act). 1 We have jurisdiction. See art. V, § 2(a), Fla. Const.


       1. Originally, on December 22, 2010, under Case No. SC10-2434, the
Committee filed a petition seeking to amend numerous jury instructions, including
instruction 6.6, Attempted Voluntary Manslaughter. Although previously
published by the Committee, the Court published the Committee’s proposal to
amend instruction 6.6 in the February 15, 2011, edition of The Florida Bar News.
Comments were received by the Court. On May 24, 2011, the attempted voluntary
manslaughter proposal was severed and became the subject of Case No.
SC11-1010. On March 19, 2012, on the Court’s own motion, proposed jury
instruction 6.6 was severed from Case No. SC11-1010 and directed to be
considered in a new case, the instant case, and assigned Case No. SC12-462. On
      In Williams v. State, 123 So. 3d 23 (Fla. 2013) (Case No. SC10-1458), the

Court held that the standard jury instruction for the offense of attempted voluntary

manslaughter, also known as attempted manslaughter by act, which required a

finding that the defendant committed an act intended to cause the death of the

victim, constituted fundamental error because the crime of attempted manslaughter

by act requires only an intentional unlawful act. Id. at 27. The Committee’s

proposal to amend the instruction for attempted voluntary manslaughter is

consistent with the Court’s decision in Williams.

      Accordingly, we hereby authorize the publication and use of instruction 6.6

as amended, set forth in the appendix to this opinion. In doing so, we express no

opinion on the correctness of the instruction and remind all interested parties that

this authorization forecloses neither requesting additional or alternative

instructions, nor contesting the legal correctness of the instruction. We further

caution all interested parties that any comments associated with the instruction

reflect only the opinion of the Committee on Standard Jury Instructions in


that same date, also on the Court’s own motion, proposed jury instruction 6.4,
Attempted Second Degree Murder, filed by the Committee in Case No.
SC11-1313, also previously published and commented upon, was severed and
directed to be considered under Case No. SC12-462. The Committee has since
requested that instruction 6.4 be withdrawn from the instant case; the Court granted
the motion to withdraw on May 9, 2013. In re Standard Jury Instructions in
Criminal Cases—Instruction 6.6, Case No. SC12-462 (Fla. May 9, 2013) (Order).
Proposed amendments to instruction 6.4 will be considered in In re Standard Jury
Instructions in Criminal Cases—Report No. 2013-02, Case No. SC13-456.

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Criminal Cases and are not necessarily indicative of the views of this Court as to

their correctness or applicability. New language is indicated by underlining, and

deleted language is struck-through. The instruction as set forth in the appendix

shall be effective when this opinion becomes final. 2

      It is so ordered.

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


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

Honorable Joseph A. Bulone, Chair, Clearwater, Florida, and Honorable
Jacqueline Hogan Scola, Past Chair, Standard Jury Instructions in Criminal Cases
Committee, Miami, Florida, and Bart Schneider, Senior Attorney, Office of State
Court Administrator, Tallahassee, Florida,

      for Petitioner




       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-
                                   APPENDIX

       6.6 ATTEMPTED VOLUNTARY MANSLAUGHTER BY ACT
                   §§ 782.07 and 777.04, Fla. Stat.

     To prove the crime of Attempted Voluntary Manslaughter by Act, the
State must prove the following element beyond a reasonable doubt:

     (Defendant) intentionally committed an act [or procured the commission
of an act], which was intended to cause the death of (victim) and would have
resulted in the death of (victim) except that someone prevented (defendant)
from killing (victim) or [he] [she] failed to do so.

      However, the defendant cannot be guilty of Attempted Voluntary
Manslaughter by Act by committing a merely negligent act or if the attempted
killing was either excusable or justifiable as I have previously explained those
terms.

    I will now define “negligence” for you. Each of us has a duty to act
reasonably and use ordinary care toward others. If there is a violation of that
duty, without any conscious intention to harm, that violation is negligence.

     It is not an attempt to commit manslaughter if the defendant abandoned
the attempt to commit the offense or otherwise prevented its commission
under circumstances indicating a complete and voluntary renunciation of [his]
[her] criminal purpose.

     Give only if procurement is alleged and proven.
     To “procure” means to persuade, induce, prevail upon, or cause a person
to do something.

      Give if attempted manslaughter is being defined as a lesser included offense
of attempted first degree premeditated murder.
       In order to convict of Attempted Voluntary Manslaughter by Act it is
not necessary for the State to prove that the defendant had an premeditated
intent to cause death, only an intent to commit an act which would have
caused death and was not justifiable or excusable attempted homicide, as I
have previously explained those terms.




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                            Lesser Included Offenses

   ATTEMPTED VOLUNTARY MANSLAUGHTER BY ACT—
                   782.07 and 777.04
CATEGORY ONE   CATEGORY TWO          FLA. STAT. INS. NO.
None
               Aggravated            784.021    8.28.4
               assault battery       784.045
               Aggravated Felony     784.045    8.48.5
               battery               784.041
               AssaultBattery        784.011    8.18.3
                                     784.03
               BatteryAssault        784.03     8.38.1
                                     784.011

                                    Comments

       In the event of any reinstruction on attempted voluntary manslaughter, the
instructions on justifiable and excusable attempted homicide as previously given
should be given at the same time. Hedges v. State, 172 So. 2d 824 (Fla. 1965).

      There is no crime of attempted involuntary manslaughter (i.e., manslaughter
by culpable negligence. See Taylor v. State, 444 So. 2d 931 (Fla. 1983)).

      This instruction was adopted in 1994 and amended in 2014.




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