In Re: Standard Jury Instructions in Criminal Cases – Report No. 2013-02 , 137 So. 3d 995 ( 2014 )

Supreme Court of Florida
____________
No. SC13-456
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2013-02.
[APRIL 24, 2014]
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 proposed changes affect the following criminal jury
instructions: 6.2, Attempted First-Degree Murder; 6.3, Attempted Felony Murder;
6.3(a), Attempted Felony Murder—Injury Caused by Another; 6.4, Attempted
Second-Degree Murder; 7.2, First-Degree Murder; and 7.4, Second-Degree
Murder.
Following publication of its proposals in the Florida Bar News, the
Committee received comments, revised some of the proposals, and filed its report
with this Court. The Court published the Committee’s revised proposals in the
Florida Bar News and received comments. Having considered the Committee’s
report and the comments filed, we authorize the amended standard jury instructions
for publication and use as proposed.
In all six instructions, language is added for determining whether the
homicide or attempted homicide victim was a law enforcement officer, correctional
officer, or correctional probation officer engaged in the lawful performance of a
legal duty as provided by section 782.065, Florida Statutes (2013). The statute
provides for mandatory sentences of life imprisonment in such cases. The new
language sets forth definitions and criteria for the jury to consider in deciding
whether the State has proven the required sentencing factors beyond a reasonable
doubt. The amendments to these instructions also include a comment in which the
Committee discusses the issue of what knowledge is required on the part of the
defendant to apply the mandatory sentencing provision.
In the instructions on first- and second-degree murder (instructions 7.2 and
7.4) and attempted first- and second-degree murder (instructions 6.2 and 6.4),
language is added to instruct the jury on the common law defense of “heat of
passion upon a sudden provocation” when it is applicable. Under Florida law, this
defense can be asserted in certain circumstances, but presently there are no
standard instructions addressing it. The instructions provide that if the jury finds
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the defense of “heat of passion upon sudden provocation” proven, it should acquit
the defendant of the crime charged. Also, since the “heat of passion” defense, if
proven, negates the element of premeditation in the case of first-degree murder and
negates the element of depraved mind in the case of second-degree murder, when
the court finds there is evidence to support the defense, the jury is instructed that
the State has the burden of disproving the “heat of passion” defense beyond a
reasonable doubt.
In instructions 6.2, 6.4, 7.2, and 7.4, the tables of lesser-included offenses
are amended to correct the terminology, add relevant information, and rearrange
the information consistent with current Committee practices.
In instruction 6.3, Attempted Felony Murder, and instruction 6.3(a),
Attempted Felony Murder—Injury Caused by Another, a note is added advising
the judge to read instruction 3.12(d), Legally Interlocking Counts, when a
defendant is charged with both attempted felony murder and the underlying felony
or attempted felony in a separate count. New tables of lesser-included offenses are
added for these instructions.
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
1. The amendments as reflected in the appendix are to the instructions as
they appear on the Court’s website at www.floridasupremecourt.org/jury_
instructions/instructions.shtml. We recognize that there may be minor
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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
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.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Honorable Joseph Anthony Bulone, Chair, Supreme Court Committee on Standard
Jury Instructions in Criminal Cases, Clearwater, Florida, and Bart Schneider,
Senior Attorney, Office of State Court Administrator, Tallahassee, Florida,
for Petitioner
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.
-4-
Norman Adam Tebrugge of Tebrugge Legal, Bradenton, Florida; Karen Marcia
Gottliebb, Coconut Grove, Florida; and Sonya Rudenstine, Gainesville, Florida,
Responding with Comments on behalf of The Florida Association of
Criminal Defense Lawyers
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APPENDIX
6.2 ATTEMPTED MURDER — FIRST DEGREE
(PREMEDITATED)
§§ 782.04(1)(a) and 777.04, Fla. Stat.
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 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.
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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
e. 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 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
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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.
-8-
“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 voluntary 782.07 and 6.6
manslaughter by act 777.04
Aggravated assault 784.021 8.2 8.4
battery 784.045
Aggravated Felony 784.045 8.4 8.5
battery 784.041(1)
Aggravated Assault 784.021 8.2
Assault Battery 784.011 784.03 8.1 8.3
Battery Assault 784.03 784.011 8.3 8.1
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Comment
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.
This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2014.
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6.3 ATTEMPTED FELONY MURDER
[ENUMERATED FELONY] [NON-ENUMERATED FELONY]
§ 782.051(1) and (2), Fla. Stat.
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 (defendant) 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 as 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.
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Definitions for enhanced penalty. § 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.
- 12 -
“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
No lesser included offenses have been identified for this offense.
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
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Aggravated Assault 784.021 8.2
Battery 784.03 8.3
Assault 784.011 8.1
Comment
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).
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.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014.
See Battle v. State, 911 So. 2d 85 (Fla. 2005).
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6.3(a) ATTEMPTED FELONY MURDER — INJURY CAUSED BY
ANOTHER
§ 782.051(3) Fla. Stat.
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]
[attempting 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 attempted felony murder, it is not
necessary for the state to prove that the defendant 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 as 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.
“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
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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.
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“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
No lesser included offenses have been identified for this offense.
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
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).
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.
- 17 -
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.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014.
- 18 -
6.4 ATTEMPTED SECOND DEGREE MURDER
§§ 782.04(2) and 777.04, Fla._Stat.
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.
- 19 -
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
e. 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.
“Law enforcement officer” means any person who is elected, appointed,
or employed full time by any municipality or the state or any political
- 20 -
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
- 21 -
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 SECOND DEGREE MURDER — 782.04(2) and 777.04
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Attempted 782.07 and 6.6
manslaughter by act 777.04
Aggravated assault 784.021 8.2 8.4
battery 784.045
Aggravated Felony 784.045 8.4 8.5
battery 784.041(1)
Aggravated Assault 784.011 8.1 8.2
784.021
Battery 784.03 8.3
Assault 784.011 8.1
- 22 -
Comment
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.
This instruction was adopted in 1994 and amended in 1997 [697 So. 2d 84]
and 2014.
- 23 -
7.2 MURDER — FIRST DEGREE
§ 782.04(1)(a), Fla. Stat.
When there will be instructions on both premeditated and felony murder, the
following explanatory paragraph should be read to the jury.
There are two ways in which a person may be convicted of first degree
murder. One is known as premeditated murder and the other is known as
felony 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.
- 24 -
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 caused death; and
e. the (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 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 First
Degree Premeditated Murder.
§ 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.
- 25 -
Definitions for enhanced penalty. § 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.
- 26 -
“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.
- 27 -
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
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
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 assault 784.021 8.2
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
Assault 784.011 8.1
Battery 784.03 8.3
Felony battery 784.041 8.5
Culpable negligence 784.05(2) 8.9
Culpable negligence 784.05(1) 8.9
Assault 784.011 8.1
Attempted second 782.04(2) & 6.4
degree murder 777.04
- 28 -
Attempted voluntary 782.07 & 6.6
manslaughter 777.04
Comment
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.
This instruction was adopted in 1981 and was amended in October 1981, and
July 1997, and 2008 [994 So. 2d 1038], and 2014.
- 29 -
7.4 MURDER — SECOND DEGREE
§ 782.04(2), Fla._Stat.
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 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:
- 30 -
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. the (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.
§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.
If you find the defendant guilty of 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. § 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
- 31 -
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
- 32 -
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.
- 33 -
Lesser Included Offenses
SECOND DEGREE (DEPRAVED MIND) MURDER — 782.04(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Manslaughter 782.07 7.7
Third degree (felony) 782.04(4) 7.6
murder
Vehicular homicide 782.071 7.9
(Nonhomicide lessers) 777.04(1) 5.16.4
Attempted Second
Degree Murder
Culpable negligence 784.05(2) 8.9 8.4
Aggravated Battery 784.045
Attempted 782.07 and 6.6
Manslaughter by Act 777.04
Culpable negligence 784.05(1) 8.9 8.5
Felony battery 784.041(1)
Felony battery 784.041 8.5 8.2
Aggravated Assault 784.021
Aggravated battery 784.045 8.4 8.3
Battery 784.03
Aggravated assault 784.021 8.2 8.9
Culpable negligence 784.05(2)
Battery Culpable 784.03 8.3 8.9
negligence 784.05(1)
Assault 784.011 8.1
Comment
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.
- 34 -
This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84],
and 2008 [994 So. 2d 1038], and 2014.
- 35 -