In Re: Standard Jury Instructions in Criminal Cases - Report No. 2014-06 , 191 So. 3d 411 ( 2016 )

Supreme Court of Florida
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No. SC14-1909
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2014-06.
[May 5, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing amendments to two existing
standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
The Committee proposes amending instructions 3.6(f) – Justifiable Use of
Deadly Force and 3.6(g) – Justifiable Use of Non-Deadly Force. Before filing its
report with the Court, the Committee published its proposals in The Florida Bar
News. Four comments were received. Upon consideration of the comments, the
Committee modified the language in various parts of its proposals. The Committee
did not republish its proposals.
After the Committee filed its report, the Court published the Committee’s
proposals for comment. A comment was received from the Florida Association of
Criminal Defense Lawyers, and the Committee received a comment from an
individual commentator. The Court thereafter granted the Committee’s request to
amend its proposals. Having considered the Committee’s report and amended
proposals, the comments filed, and the Committee’s response, we hereby authorize
for publication and use instructions 3.6(f) and 3.6(g), with the modification
discussed below.
We decline to authorize for publication and use the Committee’s proposed
note to trial judges in both instructions regarding the applicability of the forcible
felony instruction. The forcible felony instruction is based on section 776.041(1),
Florida Statutes (2015), and instructs jurors that a defendant’s use or threatened use
of force is not justified if he or she attempted to commit, committed, or was in the
process of escaping from the commission of a forcible felony. This Court has
previously held that use of the forcible felony instruction is limited to those cases
in which the defendant is charged with committing an independent forcible felony.
Martinez v. State, 981 So. 2d 449, 457 (Fla. 2008). The note proposed by the
Committee, however, states that the forcible felony instruction should be given if
there is evidence the defendant committed an independent forcible felony. The
proposed note is thus inconsistent with our existing case law on the issue of when
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the forcible felony instruction should be given. Because we are concerned that the
proposed note’s inconsistency with our case law will create unnecessary confusion
and litigation, we decline to authorize it for publication and use.1
We also refer instruction 3.6(f) back to the Committee for consideration of
whether the instruction should be amended to include language addressing a
defendant’s duty to retreat under section 776.013(3), Florida Statutes (2015). The
enactment of chapter 2014-195, § 4, Laws of Florida, significantly revised
language in section 776.013(3), Florida Statutes, pertaining to the circumstances
under which a defendant does not have a duty to retreat before using force. The
proposal submitted by the Committee, while addressing a defendant’s duty to
retreat under sections 776.012(2) and 776.031(2), Florida Statutes, does not
address a defendant’s duty to retreat under section 776.013(3), Florida Statutes.
We are concerned that instruction 3.6(f) as proposed by the Committee does not
fully address the circumstances under which a defendant does not have a duty to
retreat before using force. We therefore refer instruction 3.6(f) back to the
Committee for it to consider whether the instruction should be amended to include
1. We are cognizant of the fact that the Committee’s proposed note also
contains language stating that the forcible felony instruction is normally given in
cases where the defendant is charged with two criminal acts. We do not believe,
however, that the inclusion of this language in the proposed note is sufficient to
mitigate the confusion and litigation that is likely to occur from the proposed
note’s inconsistency with established case law.
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language addressing a defendant’s duty to retreat under section 776.013(3), Florida
Statutes.
Accordingly, the instructions, as set forth in the appendix to this opinion, are
authorized for publication and use.2 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. New language is
indicated by underlining and deleted language is indicated by struck-through type.
The instructions as set forth in the appendix shall be effective when this opinion
becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
Luke Newman of Luke Newman, PA, Tallahassee, Florida, and William Rudolf
Ponall of Snure & Ponall P.A., Winter Park, Florida,
Responding with Comments
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Appendix
3.6(f) JUSTIFIABLE USE OF DEADLY FORCE
Because there are many defensesstatutes applicable to self-defense, give
only those parts of the instructions that are required by the evidence. However,
unless the evidence establishes the force or threat of force was deadly or non-
deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State,
863 So. 2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether
accidental or not, has been deemed to be the use of deadly force as a matter of law.
Hosnedl v. State, 126 So. 3d 400 (Fla. 4th DCA 2013).
Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is
a defense to the offense with which (defendant) is charged if the [death of]
[injury to] (victim) resulted from crime[s] of (name[s] of relevant crime[s]) if
the actions of (defendant) constituted the justifiable use of deadly force.
Definition.
“Deadly force” means force likely to cause death or great bodily harm.
Both Chapter 776 and § 782.02, Fla. Stat., address the justifiable use of
deadly force.
Give if applicable. § 782.02, Fla. Stat.
The use of deadly force is justifiable onlyif the defendant reasonably
believesd that the force iswas necessary to prevent imminent death or great
bodily harm to [himself] [herself] while resisting:
1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling,
residence, or vehicle occupied by [him] [her].
Insert and defineGive the elements of the applicable felony that defendant
alleges victim attempted to commit, but omit any reference to burden of proof. See
Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).
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Give if applicable. §§ 776.012(2), 776.031(2), Fla. Stat.
A person is(Defendant) was justified in [using] [or] [threatening to use]
deadly force if [he] [she] reasonably believesd that such [force] [or] [threat of
force] iswas necessary to prevent [imminent death or great bodily harm to
[himself] [herself] [or] [another] [or] [the imminent commission of (applicable
forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or
another]]. If (defendant) was not otherwise engaged in criminal activity and
was in a place [he] [she] had a right to be, then [he] [she] had no duty to
retreat and had the right to stand [his] [her] ground.
1. imminent death or great bodily harm to [himself] [herself] or
another, or
2. the imminent commission of (applicable forcible felony) against
[himself] [herself] [or another].
Insert and defineGive the elements of the applicable forcible felony that
defendant alleges victim was about to commit, but omit any reference to burden of
proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). Forcible felonies
are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041, Fla. Stat.
However, the use of deadly force is not justifiable if you find:
Give only if the defendant is charged with an independent forcible felony.
See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
1. (Defendant) was attempting to commit, committing, or escaping after the
commission of (applicable forcible felony); or
Define applicable forcible felony. Define after paragraph 2 if both
paragraphs 1and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
2. (Defendant) initially provoked the use of force against [himself] [herself],
unless:
a. The force asserted toward the defendant was so great that [he]
[she] reasonably believed that [he] [she] was in imminent danger
of death or great bodily harm and had exhausted every
reasonable means to escape the danger, other than using deadly
force on (assailant).
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b. In good faith, the defendant withdrew from physical contact with
(assailant) and clearly indicated to (assailant) that [he] [she]
wanted to withdraw and stop the use of deadly force, but
(assailant) continued or resumed the use of force.
Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in [using force] [or] [threatening to use force] to
resist an arrest by a law enforcement officer, or to resist a law enforcement
officer who is engaged in the execution of a legal duty, if the law enforcement
officer was acting in good faith and he or she is known, or reasonably appears,
to be a law enforcement officer.
Give if applicable.
However, if an officer uses excessive force to make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] (or another), but only to the extent [he] [she]
reasonably believes such [force] [or] [threat of force] is necessary. See
§ 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1stst DCA 1981);
Jackson v. State, 463 So. 2d 372 (Fla. 5thth DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or
776.041, Fla. Stat., may need to be given in connection with this instruction.
Read in all cases.
In deciding whether defendant(defendant) was justified in the [use] [or]
[threatened use] of deadly force, you must judge [him] [her] byconsider the
circumstances by which [he] [she] was surrounded at the time the [force] [or]
[threat of force] was used. The danger facing the defendantneed not have been
actual; however, to justify the [use] [or] [threatened use] of deadly force, the
appearance of danger must have been so real that a reasonably cautious and
prudent person under the same circumstances would have believed that the
danger could be avoided only through the use of that [force] [or] [threat of
force]. Based upon appearances, the defendant(defendant) must have actually
believed that the danger was real. However, the defendant had no duty to
retreat if [he] [she] was not otherwise engaged in criminal activity and was in
a place where [he] [she] had a right to be.
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No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520
(Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where
the defendant was not engaged in any unlawful activity other than the crime(s) for
which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was
attacked in any place here [he] [she] had a right to be, [he] [she] had no duty
to retreat and had the right to stand [his] [her] ground and meet force with
force, including deadly force, if [he] [she] reasonably believed that it was
necessary to do so to prevent death or great bodily harm to [himself] [herself]
[another] or to prevent the commission of a forcible felony.
Define applicable forcible felony from list in § 776.08, Fla. Stat.
that defendant alleges victim was about to commit.
Presumption of Fear (dwelling, residence, or occupied vehicle). Give if
applicable. § 776.013(2)(a)-(d), Fla. Stat.
If the defendant was in a(n) [dwelling] [residence] [occupied vehicle]
where [he] [she] had a right to be, [he] [she] is presumed to have had a
reasonable fear of imminent death or great bodily harm to [himself] [herself]
[another] if (victim) had [unlawfully and forcibly entered] [removed or
attempted to remove another person against that person’s will from] that
[dwelling] [residence] [occupied vehicle] and the defendant had reason to
believe that had occurred. The defendant had no duty to retreat under such
circumstances.
Presumption of fear (unlawful and forcible entry into dwelling, residence, or
occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
(Defendant) is presumed to have held a reasonable fear of imminent
peril of death or great bodily harm to [himself] [herself] [another] when
[using] [or] [threatening to use] defensive force that was intended or likely to
cause death or great bodily harm to another if:
a. The person against whom the defensive force was [used] [or]
[threatened to be used] was in the process of unlawfully and
forcefully entering, or had unlawfully and forcibly entered, a
dwelling, residence, or occupied vehicle, or if that person had
removed or was attempting to remove another against that
person’s will from the dwelling, residence, or occupied vehicle;
and
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b. (Defendant) knew or had reason to believe that an unlawful and
forcible entry or unlawful and forcible act was occurring or had
occurred.
Exceptions to Presumption of Fear. § 776.013(2)(a)-(2)(d), Fla. Stat. Give
as applicable.
The presumption of reasonable fear of imminent death or great bodily
harm does not apply if:
a. the person against whom the defensive force is [used] [or]
[threatened to be used] has the right to be in [or is a lawful
resident of the [dwelling] [residence]] [thevehicle], such as an
owner, lessee, or titleholder, and there is not an injunction for
protection from domestic violence or a written pretrial
supervision order of no contact against that person; or
b. the person or persons sought to be removed is a child or
grandchild, or is otherwise in the lawful custody or under the
lawful guardianship of, the person against whom the defensive
force is [used] [or] [threatened to be used]; or
c. the person who [uses] [or] [threatens to use] defensive force is
engaged in an unlawfula criminal activity or is using the
[dwelling] [residence] [occupied vehicle] to further an unlawfula
criminal activity; or
d. the person against whom the defensive force is [used] [or]
[threatened to be used] is a law enforcement officer, who enters or
attempts to enter a [dwelling] [residence] [vehicle] in the
performance of [his] [her] official duties and the officer identified
[himself] [herself] in accordance with any applicable law or the
person [using] [or] [threatening to use] the force knew or
reasonably should have known that the person entering or
attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from
§ 943.10(14), Fla. Stat.
§ 776.013(4), Fla. Stat. § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter
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another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so
with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
As used with regard to self defense:
“Dwelling” means a building or conveyance of any kind, including any
attached porch, whether the building or conveyance is temporary or
permanent or mobile or immobile, which has a roof over it, including a tent,
and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized,
which is designed to transport people or property.
Aggressor. § 776.041(1), Fla. Stat. Give if applicable.
However, the [use] [or] [threatened use] of deadly force is not justified if
you find that (defendant) was attempting to commit, committing, or escaping
after the commission of (applicable forcible felony listed in § 776.08, Fla. Stat.).
Give the elements of the applicable forcible felony but omit any reference to
burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).
Aggressor. § 776.041(2), Fla. Stat. Give if applicable.
Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).
However, the [use] [or] [threatened use] of deadly force is not justified if
you find that (defendant) used [force] [or] [the threat of force] to initially
provoke the [use] [or] [threatened use] of force against [himself] [herself],
unless:
1. The [force] [or] [threat of force] asserted toward the defendant was
so great that [he] [she] reasonably believed that [he] [she] was in imminent
danger of death or great bodily harm and had exhausted every reasonable
means to escape the danger, other than [using] [or] [threatening to use] deadly
force on (victim).
2. In good faith, (defendant) withdrew from physical contact with
(victim) and clearly indicated to (victim) that [he] [she] wanted to withdraw
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and stop the [use] [or] [threatened use] of deadly force, but (victim) continued
or resumed the [use] [or] [threatened use] of force.
Prior threats. Give if applicable.
If you find that the defendant, who because of threats or prior
difficulties with (victim), had reasonable grounds to believe that [he] [she] was
in danger of death or great bodily harm at the hands of (victim), then the
defendant had the right to arm [himself] [herself],you may consider this fact
in determining whether the actions of the defendant were those of a
reasonable person. However, the defendant cannot justify the use of deadly
force, if after arming [himself] [herself] [he] [she] renewed [his] [her]
difficulty with (victim) when [he] [she] could have avoided the difficulty,
although as previously explained if the defendant was not engaged in an
unlawful activity and was attacked in any place where [he] [she] had a right to
be, [he] [she] had no duty to retreat.
Reputation of victim known by defendant. Give if applicable.
If you find that (victim) had a reputation of being a violent and
dangerous person and that [his] [her] reputation was known to the defendant,
you may consider this fact in determining whether the actions of the
defendant were those of a reasonable person in dealing with an individual of
that reputation.
Reputation of victim not necessarily known by defendant (to show victim
acted in conformity with victim’s character). Give if applicable.
If you find that (victim) had a reputation of being a violent and
dangerous person, you may consider this fact in determining whether [he]
[she] was the initial aggressor.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the
relative physical abilities and capacities of the defendant and (victim).
Read in all cases.
If in your consideration of the issue of self-defense you have a
reasonable doubt on the question of whether the defendant was justified in the
use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced beyond a reasonable
doubt that the defendant was not justified in the use of deadly force, you
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should find [him] [her] guilty if all the elements of the charge have been
proved.
Comments
This instruction should be used for crimes committed on or after June 20,
2014. See Chapter 2014-195, Laws of Florida.
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d
985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 9854], 2006 [930 So. 2d 612],
2008 [976 So. 2d 1081], and 2010 [27 So. 3d 640], and 2016.
3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE
Because there are many defensesstatutes applicable to self-defense, give
only those parts of the instructions that are required by the evidence. However,
unless the evidence establishes the force used was deadly or non-deadly as a
matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464
(Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not,
has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State,
120 So. 3d 400 (Fla. 4th DCA 2013).
Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is
a defense to the offense with which (defendant) is charged if the [death of]
[injury to] (victim) resulted fromcrime[s] of (name[s] of relevant crime[s]) if the
actions of (defendant) constituted the justifiable use of non-deadly force.
Definition.
“Non-deadly” force means force not likely to cause death or great bodily
harm.
In defense of person. § 776.012(1), Fla. Stat. Give if applicable.
(Defendant) would bewas justified in [using] [or] [threatening to use]
non-deadly force against (victim) and had no duty to retreat if the following
two facts are proved: [he] [she] reasonably believed that such conduct was
necessary to defend [himself] [herself] [another] against (victim’s) imminent
use of unlawful force.
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1. (Defendant) must have reasonably believed that such conduct was
necessary to defend [himself] [herself] [another] against (victim’s)
imminent use of unlawful force against the [defendant] [another
person].
2. The use of unlawful force by (victim) must have appeared to (defendant)
to be ready to take place.
In defense of property. § 776.031(1), Fla. Stat. Give if applicable.
(Defendant) would bewas justified in [using] [or] [threatening to use]
non-deadly force against (victim) and had no duty to retreat if the following
three facts are proved:
1. (Victim) must have been[was about to trespass] [or] [was trespassing] or
[was about to wrongfully interfere] [or] [wasotherwisewrongfully
interfering] with land or personal property.; and
2. The land or personal property must havewas lawfully beenin
(defendant’s) possession, or in the possession of a member of [his] [her]
immediate family or household, or in the possession of some person
whose property [he] [she] was under a legal duty to protect.; and
3. (Defendant) must havereasonably believed that [his] [her] [use] [or]
[threatened use] of force was necessary to prevent or terminate
(victim’s)
wrongful behavior.
No duty to retreat (dwelling, residence, or occupied vehicle). Give if
applicable.
If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle]
[he] [she] is presumed to have held a reasonable fear of imminent peril of
death or bodily injury to [himself] [herself] [another] if (victim) has
[unlawfully and forcibly entered] [has removed or attempted to remove
another person against that person’s will from] that [dwelling] [residence]
[occupied vehicle] and the defendant had reason to believe that had occurred.
The defendant had no duty to retreat under such circumstances.
Presumption of fear (unlawful and forcible entry into dwelling, residence, or
occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
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(Defendant) is presumed to have held a reasonable fear of imminent
peril of death or great bodily harm to [himself] [herself] [another] when
[using] [or] [threatening to use] defensive force if:
a. The person against whom the defensive force was [used] [or]
[threatened to be used] was in the process of unlawfully and
forcefully entering, or had unlawfully and forcibly entered, a
dwelling, residence, or occupied vehicle, or if that person had
removed or was attempting to remove another against that
person’s will from the dwelling, residence, or occupied vehicle;
and
b. (Defendant) knew or had reason to believe that an unlawful and
forcible entry or unlawful and forcible act was occurring or had
occurred.
Exceptions to Presumption of Fear. §§ 776.013(2)(a)-(2)(d), Fla. Stat. Give
as applicable.
The presumption of reasonable fear of imminent death or great bodily
harm does not apply if:
a. the person against whom the defensive force is [used] [or]
[threatened to be used] has the right to be in [or is a lawful
resident of the [dwelling] [residence]] [vehicle], such as an owner,
lessee, or titleholder, and there is not an injunction for protection
from domestic violence or a written pretrial supervision order of
no contact against that person; or
b. the person or persons sought to be removed is a child or
grandchild, or is otherwise in the lawful custody or under the
lawful guardianship of, the person against whom the defensive
force is [used] [or] [threatened to be used]; or
c. the person who [uses] [or] [threatens to use] defensive force is
engaged in a criminal activity or is using the [dwelling] [residence]
[occupied vehicle] to further a criminal activity; or
d. the person against whom the defensive force is [used] [or]
[threatened to be used] is a law enforcement officer, who enters or
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attempts to enter a [dwelling] [residence] [vehicle] in the
performance of [his] [her] official duties and the officer identified
[himself] [herself] in accordance with any applicable law or the
person [using] [or] [threatening to use] the force knew or
reasonably should have known that the person entering or
attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from
§ 943.10(14), Fla. Stat.
§ 776.013(4), § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter
another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so
with the intent to commit an unlawful act involving force or violence.
No duty to retreat (location other than dwelling, residence, or occupied
vehicle). Give if applicable. See Novak v. State 974 So. 2d 520 (Fla. 4 th DCA 2008)
regarding unlawful activity. There is no duty to retreat where the defendant was not
engaged in any unlawful activity other than the crime(s) for which the defendant
asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was
attacked in any place where [he] [she] had a right to be, [he] [she] had no duty
to retreat and had the right to stand [his] [her] ground and meet force with
force, including deadly force, if [he] [she] reasonably believed that it was
necessary to do so to prevent death or great bodily harm to [himself] [herself]
[another] or to prevent the commission of a forcible felony.
Definitions.
As used with regard to self defense,
“Dwelling” means a building or conveyance of any kind, including any
attached porch, whether the building or conveyance is temporary or
permanent or mobile or immobile, which has a roof over it, including a tent,
and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized,
which is designed to transport people or property.
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Define applicable forcible felony that defendant alleges victim was about to
commit.
Give in all cases.
A person does not have a duty to retreat if the person is in a place where
[he] [she] has a right to be.
Aggressor. § 776.041, Fla. Stat.
The use of non-deadly force is not justified if you find:
Give only if the defendant is charged with an independent forcible felony.
See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
1. (Defendant) was attempting to commit, committing, or escaping after
the commission of a (applicable forcible felony).
Define applicable forcible felony.
2. (Defendant) initially provoke the use of force against [himself]
[herself], unless:
a. The force asserted toward the defendant was so great
that [he] [she] reasonably believed that [he] [she] was in
imminent danger of death or great bodily harm and had
exhausted every reasonable means to escape the danger,
other than using non-deadly force on (assailant).
b. In good faith, the defendant withdrew from physical
contact with (assailant) and indicated clearly to
(assailant) that [he] [she] wanted to withdraw and
stop the use of non-deadly force, but (assailant)
continued or resumed the use of force.
Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in [using] [or] [threatening to use] force to resist
an arrest by a law enforcement officer, or to resist a law enforcement officer
who is engaged in the execution of a legal duty, if the law enforcement officer
was acting in good faith and he or she is known, or reasonably appears, to be a
law enforcement officer.
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Give the following instruction if applicable.
However, if an officer uses excessive force to make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] [another], but only to the extent [he] [she]
reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v.
State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla.
5th DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or
776.041, Fla. Stat., may need to be given in connection with this instruction.
Read in all cases.
In deciding whether defendant(defendant) was justified in the [use] [or]
[threatened use] of non-deadly force, you must judge [him] [her] byconsider
the circumstances by which [he] [she] was surrounded at the time the [force]
[or] [threat of force] was used. The danger facing the defendantneed not have
been actual; however, to justify the [use] [or] [threatened use] of non-deadly
force, the appearance of danger must have been so real that a reasonably
cautious and prudent person under the same circumstances would have
believed that the danger could be avoided only through the use of that [force]
[or] [threat of force], although as I have previously explained, the defendant
had no duty to retreat. Based upon appearances, the defendant(defendant)
must have actually believed that the danger was real.
Aggressor. § 776.041(1), Fla. Stat. Give if applicable.
However, the [use] [or] [threatened use] of non-deadly force is not
justified if you find that (defendant) was attempting to commit, committing, or
escaping after the commission of a[n] (applicable forcible felony listed in
§ 776.08, Fla. Stat.).
Give the elements of the applicable forcible felony but omit any reference to
burden of proof. Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).
Aggressor. § 776.041(2), Fla. Stat. Give if applicable.
Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).
However, the [use] [or] [threatened use] of non-deadly force is not
justified if you find that (defendant) used [force] [or] [the threat of force] to
initially provoke the [use] [or] [threatened use] of force against [himself]
[herself], unless:
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1. The [force] [or] [threatened force] asserted toward
(defendant) was so great that [he] [she] reasonably believed that
[he] [she] was in imminent danger of death or great bodily harm
and had exhausted every reasonable means to escape the danger,
other than using non-deadly force on (victim).
2. In good faith, (defendant) withdrew from physical
contact with (victim) and indicated clearly to (victim) that [he]
[she] wanted to withdraw and stop the [use] [or] [threatened use]
of non-deadly force, but (victim) continued or resumed the [use]
[or] [threatened use] of force.
Reputation of victim known by defendant. Give if applicable.
If you find that (victim) had a reputation of being a violent and
dangerous person and that [his] [her] reputation was known to the defendant,
you may consider this fact in determining whether the actions of the
defendant were those of a reasonable person in dealing with an individual of
that reputation.
Reputation of victim not necessarily known by defendant (to show victim
acted in conformity with victim’s character). Give if applicable.
If you find that (victim) had a reputation of being a violent and
dangerous person, you may consider this fact in determining whether [he]
[she] was the initial aggressor.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the
relative physical abilities and capacities of the defendant and (victim).
Read in all cases.
If, in your consideration of the issue of self-defense you have a
reasonable doubt on the question of whether the defendant was justified in the
use of non-deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced beyond a reasonable
doubt that the defendant was not justified in the use of non-deadly force, then
you should find [him] [her] guilty if all the elements of the charge have been
proved.
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Comments
This instruction should be used for crimes committed on or after June 20,
2014. See Chapter 2014-195, Laws of Florida.
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d
985], 1992 [603 So. 2d 1175], 2006 [930 So. 2d 612], 2007 [947 So. 2d 1159],
2008 [976 So. 2d 1081], and 2010 [27 So. 3d 640], and 2016.
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