In re Standard Jury Instructions in Criminal Cases-Report 2017-06 (236 So. 3d 282, 2018)

Citations

236 So. 3d 282

Full opinion text

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's proposals derive from two referrals by the Court to the Committee. The first referral concerned instructions that pertain to section 782.065, Florida Statutes (2017), and was based upon Ramroop v. State , 214 So.3d 657 (Fla. 2017), in which we held that the State must prove that the defendant knew that the victim was a law enforcement officer (LEO), correctional officer, etc., for the reclassification of a murder or attempted murder charge. New instructions 6.7 (Attempted Murder-Reclassified) and 7.13 (Murder-Reclassified) were proposed in light of Ramroop . The second referral was based upon State v. Spencer , 216 So.3d 481 (Fla. 2017), in which we determined that fundamental error resulted where the instruction for Attempted Manslaughter by Act as read to the jury did not include an instruction on justifiable or excusable attempted homicide. In light of Spencer , the Committee proposed amendments to the following existing attempted homicide and homicide instructions: 6.2 (Attempted First Degree Premeditated Murder); 6.3 (Attempted Felony Murder); 6.3(a) (Attempted Felony Murder-Injury Caused by Another); 6.4 (Attempted Second Degree Murder); 6.6 (Attempted Manslaughter by Act); 7.2 (Murder-First Degree); 7.3 (Felony Murder-First Degree); 7.4 (Murder-Second Degree); 7.5 (Felony Murder-Second Degree); 7.6 (Felony Murder-Third Degree); 7.7 (Manslaughter); and 7.7(a) (Aggravated Manslaughter).

Following publication by the Committee, a comment was received from the Florida Public Defender Association (FPDA). The Court did not publish the proposals after they were filed. The Court authorizes instructions 6.2, 6.3, 6.3(a), 6.4, 6.6, 6.7, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7(a), and 7.13 as proposed, and authorizes instruction 7.7 with modifications. The more significant amendments to the instructions are discussed below.

With regard to the attempted homicide and homicide-related instructions before the Court-6.2, 6.3, 6.3(a), 6.4, 6.6, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, and 7.7(a)-we recognize that in Spencer we held that fundamental error resulted when the defendant's jury was instructed upon attempted manslaughter by act, but the instruction omitted instructions upon justifiable and excusable attempted homicide. Id. , 216 So.3d at 486. To remedy this situation, we amend the above listed instructions to include one of the applicable following italicized sentences at the top of all attempted murder and murder instructions:

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide.

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.

In addition, in the context of the attempted manslaughter and manslaughter instructions, the following italicized paragraph is added as a note to the trial judge:

It is fundamental error not to instruct on justifiable attempted homicide and excusable attempted homicide in the absence of an express concession that the attempted homicide was not excusable or justified. See State v. Spencer, 216 So.3d 481 (Fla. 2017).

Turning to the individual instructions, we further amend instruction 6.2 by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), Florida Statutes, as well as the paragraph in the Comments section addressing the enhancement. Instead, a new paragraph is added to the Comments section referencing instruction 6.7 for the section 782.065 reclassification enhancement, in light of Ramroop .

Next, new instruction 6.7 pertains to the reclassification statute, section 782.065, Florida Statutes, and is based upon this Court's decision in Ramroop . In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification:

In Ramroop v. State, 214 So.3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense. Accordingly, the trial judge should add the three elements below to the elements section of the appropriate Attempted Murder crime (See Instruction 6.2, 6.3, 6.3(a), or 6.4.)

Instruction 6.7 then includes the three elements that the jury must find for the reclassification, including that the victim was a law enforcement officer (LEO), etc., that the defendant knew the victim was an LEO, etc., and that the victim was engaged in the lawful performance of a legal duty.

Existing instruction 7.2 is further amended by deleting the paragraph pertaining to "transferred intent" and adding a sentence to the Comments section providing that instruction 3.6(o) be given if the case involves transferred intent. In addition, the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), i.e., the definitions relevant to the enhancement, is deleted, as is the paragraph in the Comments section addressing the enhancement, and a new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification.

Instructions 7.3, 7.4, 7.5, and 7.6 are further amended by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), as is the paragraph in the Comments section addressing the enhancement, and a new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification. The table of lesser included offenses in instruction 7.5 is also amended to delete the asterisk to Manslaughter as a Category One offense, in light of our decision in Dean v. State , 230 So.3d 420 (Fla. 2017), holding that manslaughter is a necessarily lesser included offense of second-degree felony murder. Id. at 424.

With regard to instruction 7.7, while we amend the body of the instruction in light of Spencer , we decline to amend the Comments section to include a sentence providing that "mutual combat resulting in death is Manslaughter" citing to Eiland v. State , 112 So.2d 415 (Fla. 2d DCA 1959).

Finally, new instruction 7.13 covers the reclassification statute, section 782.065, Florida Statutes, and is based upon our decision in Ramroop . In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification:

In Ramroop v. State, 214 So.3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense. Accordingly, the trial judge should add the three elements below to the elements section of the appropriate Murder crime (See Instruction 7.2, 7.3, 7.4, 7.5, or 7.6).

Instruction 7.13 then includes the three elements that the jury must find for the reclassification, including that the victim was an LEO, etc., that the defendant knew the victim was an LEO, etc., and that the victim was engaged in the lawful performance of a legal duty.

Having considered the Committee's report and the comment submitted by FPDA, we authorize for publication and use new and amended instructions 6.2, 6.3, 6.3(a), 6.4, 6.6, 6.7, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7(a), and 7.13, as proposed, and amended instruction 7.7 as modified by the Court, and as set forth in the appendix to this opinion. 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.

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

APPENDIX

6.2 ATTEMPTED MURDER-FIRST DEGREE (PREMEDITATED)

§§ 782.04(1)(a) and 777.04, Fla. Stat.

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide .

To prove the crime of Attempted First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) did some act intended to cause the death of (victim) that went beyond just thinking or talking about it.

2. (Defendant) acted with a premeditated design to kill (victim).

3. The act would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

Definition.

A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.

It is not an attempt to commit first degree premeditated murder if the defendant abandoned [his] [her] 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 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 act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill 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 constituted the attempt to cause death; and

the

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

If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted First Degree Premeditated Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of Attempted First Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions. § 943.10, Fla. Stat.

"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

"Employing agency" means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof,

which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

"Correctional officer" means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term "correctional officer" does not include any secretarial, clerical, or professionally trained personnel.

"Correctional probation officer" means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

"Part-time law enforcement officer" means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

"Part-time correctional officer" means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

"Auxiliary law enforcement officer" means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

"Auxiliary correctional officer" means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

ATTEMPTED FIRST DEGREE (PREMEDITATED) MURDER - 782.04(1) and 777.04 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Attempted second 782.04(2) and 6.4 degree (depraved 777.04 mind) murder Attempted 782.07 and 6.6 manslaughter by act 777.04 Attempted aggravated 784.045(1)(a)1 8.4 and battery (intentionally and 777.04 5.1 cause great bodily harm) Attempted battery 784.03(1)(a)2 8.3 and (intentionally cause and 777.04 5.1 bodily harm) Attempted felony 782.051(1) 6.3 murder Attempted felony 782.051(2) 6.3 murder Attempted felony 782.051(3) 6.3(a) 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

Comment s

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State , 695 So.2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim's status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim's status is an element under Fla. Stat. § 782.065.

See Instruction 5.1 for the affirmative defense of renunciation.

See Instruction 6.7 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

A charging document that tracks the language of the Attempted First-Degree Premeditated Murder statute does not charge Attempted Felony Murder. See Weatherspoon v. State , 214 So.3d 578 (Fla. 2017).

This instruction was adopted in 1994 [636 So.2d 502] and amended in 2014[ 137 So.3d 995 ] and 2018.

6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY]

§ 782.051(1) and (2), Fla. Stat.

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide.

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

1. (Defendant) [committed] [attempted to commit] a (crime alleged).

2. While engaged in the [commission] [attempted commission] [escape from the immediate scene] of (crime alleged), the defendant [committed] [aided or abetted] an intentional act that is not an essential element of (crime alleged).

3. This intentional act could have but did not cause the death of (victim).

(Crime alleged) is defined by Florida law as (define the crime).

In order to convict the defendant of Attempted Felony Murder, it is not necessary for the State to prove that [he] [she] had a premeditated design or intent to kill.

If the underlying felony or attempted 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).

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable .

If you find the defendant guilty of Attempted Felony Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 943.10, Fla. Stat .

"Employing agency" means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

Lesser Included Offenses

6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] - § 782.051(1) and (2)

, Fla. Stat.

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Attempted 782.07 & 6.6 Manslaughter By Act 777.04 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

Comment s

Section

§782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in

section

§782.04(3), Fla. Stat.

Section

§ 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in

section

§ 782.04(3), Fla. Stat.

Regarding the enhanced penalty under Fla. Stat. § 782.065 the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State , 695 So.2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim's status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim's status is an element under Fla. Stat. § 782.065.

A charging document that tracks the language of the Attempted First-Degree Premeditated Murder statute does not charge Attempted Felony Murder. See Weatherspoon v. State , 214 So.3d 578 (Fla. 2017).

See Instruction 5.1 for the affirmative defense of renunciation.

See Instruction 6.7 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

This instruction was adopted in 2007 [ 962 So.2d 310 ] and amended in 2014 [ 137 So.3d 995 ] and 2018.

See Battle v. State , 911 So.2d 85 (Fla. 2005).

6.3(a) ATTEMPTED FELONY MURDER-INJURY CAUSED BY ANOTHER

§ 782.051(3) Fla. Stat.

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide.

To prove the crime of Attempted Felony Murder, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [committed] [attempted to commit] a (crime alleged).

2. (Victim) was injured during the [commission] [attempted commission] of an escape from the immediate scene of the (crime alleged) by an individual other than the person(s) [committing] [attempt ing to commit] [escaping from the immediate scene of] the (crime alleged).

(Crime alleged) is defined by Florida law as (define the crime).

In order to convict the defendant of

A ttempted

F elony

M urder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

Definitions. § 943.10, Fla. Stat.

correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

Lesser Included Offenses

6.3(a) ATTEMPTED FELONY MURDER - INJURY CAUSED BY ANOTHER - § 782.051(3)

Fla. Stat.

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempted Manslaughter 782.07 & 6.6 by Act 777.04

Comment s

Section

§ 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in

section

§ 782.04(3), Fla. Stat .

A charging document that tracks the language of the Attempted First-Degree Premeditated Murder statute does not charge Attempted Felony Murder. See Weatherspoon v. State , 214 So.3d 578 (Fla. 2017).

See Instruction 5.1 for the affirmative defense of renunciation.

See Instruction 6.7 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

This instruction was adopted in 2007 [ 962 So.2d 310 ] and amended in 2014[ 137 So.3d 995 ] and 2018.

6.4 ATTEMPTED SECOND DEGREE MURDER

§§ 782.04(2) and 777.04, Fla. Stat.

In the absence of an express concession that the attempted homicide was not excusable or justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide.

To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:

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

2. The act was 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 indifference to human life.

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

It is not an attempt to commit second degree murder 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 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 would have resulted in death; and

the

(defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that would have resulted in 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 Attempted Second Degree Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of Attempted Second Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 943.10, Fla. Stat.

correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

Lesser Included Offenses

ATTEMPTED SECOND DEGREE MURDER - 782.04(2) and 777.04 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Attempted 782.07 and 6.6 manslaughter by act 777.04 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

Comment s

See Instruction 5.1 for the affirmative defense of renunciation.

See Instruction 6.7 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

This instruction was adopted in 1994 and amended in 1997 [ 697 So.2d 84 ],

and

2014 [ 137 So.3d 995 ] and 2018.

6.6 ATTEMPTED MANSLAUGHTER BY ACT

§§ 782.07 and 777.04, Fla. Stat.

To prove the crime of Attempted 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 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 Manslaughter by Act by committing a merely negligent act.

Each of us

Every person 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.

Give only

if procurement is alleged and proven

if applicable.

To "procure" means to persuade, induce, prevail upon, or cause a person to do something.

In order to convict of Attempted Manslaughter by Act it is not necessary for the State to prove that the defendant had an 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 instructed you.(The explanations of justifiable attempted homicide and excusable attempted homicide are in Instruction 6.1, Introduction to Attempted Homicide.)

Lesser Included Offenses

ATTEMPTED MANSLAUGHTER BY ACT - 782.07 and 777.04 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempted 784.045(1)(a) 8.4 and aggravated battery 1 and 777.04 5.1 (intentionally cause great bodily harm) Attempted battery 784.03(1)(a)2 8.3 and (intentionally cause and 777.04 5.1 bodily harm) Aggravated 784.045 8.4 Battery Felony Battery 784.041 8.5 Battery 784.03 8.3 Assault 784.011 8.1

Comments

In the event of any reinstruction on attempted manslaughter by act, 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 manslaughter by culpable negligence. See Taylor v. State , 444 So.2d 931 (Fla. 1983).

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 1994 [ 636 So.2d 502 ] and amended in 2014 [ 132 So.3d 1124 ],

and

2017 [ 213 So.3d 680 ], and 2018.

6.7 ATTEMPTED MURDER-RECLASSIFIED (BY VICTIM'S EMPLOYMENT AS LAW ENFORCEMENT OFFICER, CORRECTIONAL OFFICER, ETC.)

§ 782.065, Fla. Stat.

(Victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer].

(Defendant) knew that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer].

(Victim) was engaged in the lawful performance of a legal duty.

Definitions. § 943.10, Fla. Stat. Give as applicable.

"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the State or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the State. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

"Employing agency" means any agency or unit of government or any municipality or the State or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the State or county for the operation and maintenance of a nonjuvenile detention facility.

"Correctional officer" means any person who is appointed or employed full time by the State or any political subdivision thereof, or by any private entity which has contracted with the State or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term "correctional officer" does not include any secretarial, clerical, or professionally trained personnel.

"Correctional probation officer" means a person who is employed full time by the State whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

Lesser Included Offenses

ATTEMPTED FIRST DEGREE PREMEDITATED MURDER RECLASSIFIED - 782.04(1), 777.04, and 782.065 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Attempted First 782.04(1) and 6.2 Degree Premeditated 777.04 Murder Attempted Second 782.04, 777.04, 6.4 and Degree Murder - and 782.065 6.7 Reclassified Attempted Second 782.04(2) and 6.4 Degree Murder 777.04 Attempted 782.07 and 6.6 Manslaughter by Act 777.04 Attempted aggravated 784.045(1)(a)1 8.4 and battery (intentionally and 777.04 5.1 cause great bodily harm) Attempted battery 784.03(1)(a)2 8.3 and (intentionally cause and 777.04 5.1 bodily harm) Attempted felony 782.051(1) and 6.3 and murder-reclassified 782.065 6.7 Attempted felony 782.051(1) 6.3 murder Attempted felony 782.051(2) and 6.3 and murder-reclassified 782.065 6.7 Attempted felony 782.051(2) 6.3 murder Attempted felony 782.051(3) and 6.3(a) murder-reclassified 782.065 and 6.7 Attempted felony 782.051(3) 6.3(a) 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

The reclassification in § 782.065, Fla. Stat., does not apply to the lesser-included offense of Attempted Manslaughter by Act.

This instruction was adopted in 2018.

7.2 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.

When there will be instructions on both premeditated and first-degree felony mur der, the following explanatory paragraph should be read to the jury.

There are two ways

in which

a person may

be convicted of

commit

F irst

D egree

M urder. One is known as First Degree

P remeditated

M urder and the other is known as First Degree

F elony

M urder.

If jury is to be instructed only on premeditated murder:

To prove the crime of First Degree Premeditated 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 a premeditated killing of (victim).

Definitions.

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

"Killing with premeditation" is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

Transferred intent. Give if applicable

If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

Give only if there is evidence that the defendant acted in the heat of passion on legally 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

the

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

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of First Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 943.10, Fla. Stat.

"Part-time correctional officer" means any person who is employed or appointed less than full time, as defined

by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

Lesser Included Offenses

FIRST DEGREE (PREMEDITATED) 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 Attempted felony 782.051(1) 6.3 murder Attempted 782.04(1) 6.2 premeditated 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) Attempted second 782.04(2) & 6.4 degree murder 777.04 Attempted felony 782.051(2) 6.3 murder Third degree (felony) 782.04(4) 7.6 murder Vehicular homicide 782.071 7.9 Attempted felony 782.051(3) 6.3(a) murder Aggravated battery 784.045 8.4 Attempted 782.07 & 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

Comment s

Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim's status is an element under Fla. Stat. § 782.065.

If the case involves transferred intent, insert Instruction 3.6(o).

See 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 was am