In Re: Standard Jury Instructions in Criminal Cases - Report 2019-01 ( 2019 )

Supreme Court of Florida
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No. SC19-419
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2019-01.
December 19, 2019
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to standard jury instructions
3.6(f) and 3.6(g) and asks that the Court authorize the amended standard
instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
In In re Standard Jury Instructions in Criminal Cases—Report 2017-07, 257
So. 3d 908 (Fla. 2018), we authorized for publication and use amendments to
standard criminal jury instructions 3.6(f) (Justifiable Use of Deadly Force) and
3.6(g) (Justifiable Use of Non-Deadly Force). We also referred instruction 3.6(f)
back to the Committee for consideration of whether the common law “castle
doctrine” should be added to the instruction to cover the situation in which the
defendant is in his or her place of business and is engaged in criminal activity, see
Redondo v. State, 380 So. 2d 1107, 1110-11 (Fla. 3d DCA 1980) (adopting the rule
that a defendant is under no duty to retreat prior to using deadly force in self-
defense when attacked in his or her place of employment while lawfully engaged
in his occupation), quashed in part on other grounds, 403 So. 2d 954 (Fla. 1981);
Frazier v. State, 681 So. 2d 824, 825 (Fla. 2nd DCA 1996) (agreeing with the
Third District Court of Appeal that the “castle doctrine” applies to the workplace,
citing Redondo), as suggested by the Florida Public Defender Association in its
comment in that earlier case.
The Committee, after having published its proposals in The Florida Bar
News and having received one comment, filed its report with the Court proposing
amendments to both instructions 3.6(f) and 3.6(g). In its report, the Committee
explains that
[a] question arises as to whether this extension [of the “castle
doctrine”] applies if the person were engaged in criminal activity.
Notably, §§ 776.012(2) and 776.031(2), Fla. Stats., state: “A person
who uses or threatens to use deadly force in accordance with this
subsection does not have a duty to retreat and has the right to stand his
or her ground if the person using or threatening to use deadly force is
not engaged in a criminal activity and is in a place where he or she
has a right to be. (emphasis added). If the courts apply the plain
language of these statutes, then a convicted felon, who unlawfully
possesses a firearm while working in his place of business, has a duty
to retreat before using deadly force because he is engaged in criminal
activity. However, if the Redondo and Frazier case law applies,
despite the employee engaging in criminal activity, the convicted
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felon, who was otherwise working at his job lawfully, would not have
a duty to retreat before using deadly force.
A majority of the Committee did not believe that the case law that extends the
“castle doctrine” into a place of employment survives the Stand Your Ground
statutes if the defendant was engaged in criminal activity. Because this Court has
not addressed this specific point of law, the Committee instead proposes amending
instruction 3.6(f) to bring this issue to the attention of the courts and lawyers.
We agree with the Committee that a standard jury instruction case is not the
proper means in which to resolve a substantive issue of law. Rather, absent
clarification by the legislature, that matter must await this Court’s resolution in an
actual case and controversy. See, e.g., In re Std. Jury Instrs. in Criminal Cases—
Report 2018-04, 257 So. 3d 370, 372 (Fla. 2018); In re Std. Jury Instrs. in
Criminal Cases—Report No. 2015-08, 194 So. 3d 1007 (Fla. 2016); In re Std. Jury
Instrs. in Criminal Cases—Instruction 14.2, 140 So. 3d 992 (Fla. 2014); In re Std.
Jury Instrs. in Criminal Cases—Report No. 2011-03, 95 So. 3d 868, 869 (Fla.
2012); In re Std. Jury Instrs. in Criminal Cases—Report 2011-04, 85 So. 3d 1090,
1091 n.1 (Fla. 2012); In re Std. Jury Instrs. in Criminal Cases—Report No. 2007-5,
982 So. 2d 1160 (Fla. 2008). Accordingly, instruction 3.6(f) is amended to include
two italicized notes alerting courts and litigants of the issue. The first new
paragraph is included in the section under section 776.013(1), and provides as
follows:
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Before the latest Chapter 776 statutes went into effect, case law such
as De La Hoz v. State, 997 So. 2d 1198 (Fla. 3d DCA 2008) extended
the Castle Doctrine to people in their place of employment while
lawfully engaged in their occupations. If this extension of the Castle
Doctrine is still valid, a person in his or her place of employment
while lawfully engaged in his or her occupation has no duty to retreat
before using or threatening to use deadly force, even if he or she was
otherwise engaged in criminal activity. The paragraph below can be
modified to include a person in his or her place of employment while
lawfully engaged in his or her occupation.
The second is added to the italicized note above the paragraph pertaining to
danger, and provides “If the Castle Doctrine for a person in his or her place of
employment still applies, the paragraph below should be modified to include a
person in his or her place of employment while lawfully engaged in his or her
occupation.”
In addition to the above-described amendment to instruction 3.6(f), both
instructions 3.6(f) and 3.6(g) are amended to include the definition for “great
bodily harm,” consistent with prior decisions to provide as follows: “‘Great bodily
harm’ means great as distinguished from slight, trivial, minor, or moderate harm,
and as such does not include mere bruises.” See, e.g., In re Std. Jury Instrs. in
Criminal Cases—Report 2018-14, 267 So. 3d 980 (Fla. 2019) (authorizing
instructions 3.3(d), 8.5(a), 16.5, 21.14, and 29.24 to include the definition); In re
Std. Jury Instrs. in Criminal Cases—Report 2018-09, 262 So. 3d 59, 67, 70 (Fla.
2019) (authorizing instructions 7.9 and 16.12 to include the definition); In re Std.
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Jury Instrs. in Criminal Cases—Report 2018-06, 260 So. 3d 941, 942 (Fla. 2018)
(authorizing instructions 15.1, 15.2, and 15.3 to include the definition); In re Std.
Instrs. in Criminal Cases—Report 2018-05, 257 So. 3d 925 (Fla. 2018)
(authorizing instructions 13.1, 13.3, and 13.4 to include the definition). We reject
the Committee’s abbreviated definition proffered without explanation for the
necessity to deviate from the previously authorized version.
Having considered the Committee’s report, the comment, and the
Committee’s response thereto, we authorize for publication and use amended
instructions 3.6(f) and 3.6(g) as modified and as set forth in the appendix to this
opinion.1 New language is indicated by underlining, and 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
1. 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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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.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.
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 F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
3.6(f) JUSTIFIABLE [USE] [OR] [THREATENED USE] OF DEADLY
FORCE
Because there are many statutes applicable to self-defense, give only those
parts of the instructions that are required by the evidence. However, uUnless 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).
§ 782.02, Fla. Stat., and many statutes within Chapter 776 address the
justifiable use or threatened use of deadly force, however, § 782.02, Fla. Stat.,
does not address the concept of stand-your-ground/no duty to retreat. Additionally,
§ 776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling
and had the right to be there while §§ 776.012(1), and 776.031(2), Fla. Stats.,
cover other situations. Judges should use great caution in deciding which statutes
apply and which parts of the instruction are required to be given.
It is a defense to the crime[s] of (name[s] of relevant crime[s], including
lesser-included offenses) if the actions of (defendant) constituted the justifiable
[use] [or] [threatened use] of deadly force. “Deadly force” means force likely
to cause death or great bodily harm. “Great bodily harm” means great as
distinguished from slight, trivial, minor, or moderate harm, and as such does
not include mere bruises.
Section 782.02, Fla. Stat., and many statutes within Chapter 776 address the
justifiable use of deadly force, however, § 782.02, Fla. Stat., does not address the
concept of stand-your-ground/no duty to retreat. Additionally, § 776.013(1), Fla.
Stat., covers the situation where the defendant was in a dwelling and had the right
to be there while § 776.012(1), and §776.031(2), Fla. Stat., cover other situations.
The Committee advises lawyers and judges to use great caution in deciding which
statute or statutes apply.
Give if applicable. § 782.02, Fla. Stat.
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The use of deadly force is justifiable if (defendant) reasonably believed
that the force was necessary to prevent imminent death or great bodily harm
to [himself] [herself] while resisting:
another’s attempt to murder [him] [her], or
any attempt to commit (applicable felony) upon [him] [her], or
any attempt to commit (applicable felony) upon or in any dwelling house
in which [he] [she] was present.
Give 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).
Give if applicable. §§ 776.012(2), 776.031(2), Fla. Stat. Defendant not in a
dwelling or residence or defendant was in a dwelling or residence but had no right
to be there. Where appropriate, the court should state or define the applicable
criminal activity that the defendant may have been engaged in.
(Defendant) was justified in [using] [or] [threatening to use] deadly force
if [he] [she] reasonably believed that such [force] [or] [threat of force] was
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.
Give 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). The instruction may need to be
modified in the event that the forcible felony at issue is not a crime against a
person.
Give the paragraph below when there is evidence that the defendant was
engaged in criminal activity or was not in a place where he or she had a right to
be, which means there was a duty to retreat. Morgan v. State, 127 So. 3d 708 (Fla.
5th DCA 2013). Where appropriate, the court should state or define the applicable
criminal activity that the defendant may have been engaged in.
If (defendant) was otherwise engaged in criminal activity or was not in a
place [he] [she] had a right to be, then the [use] [or] [threatened use] of deadly
force was not justified unless [he] [she] used every reasonable means within
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[his] [her] power and consistent with [his] [her] own safety to avoid the danger
before resorting to the [use] [or] [threatened use] of deadly force. The fact
that the defendant was wrongfully attacked cannot justify [his] [her] [use] [or]
[threatened use] of deadly force, if, by retreating, [he] [she] could have
avoided the need to [use] [or] [threaten to use] deadly force. However, if
(defendant) was placed in a position of imminent danger of death or great
bodily harm and it would have increased [his] [her] own danger to retreat,
then [his] [her] [use] [or] [threatened use] of deadly force was justifiable.
Give if applicable. § 776.013(1), Fla. Stat. Defendant in a dwelling or
residence and had a right to be there.
Before the latest Chapter 776 statutes went into effect, case law such as De
La Hoz v. State, 997 So. 2d 1198 (Fla. 3d DCA 2008) extended the Castle Doctrine
to people in their place of employment while lawfully engaged in their occupations.
If this extension of the Castle Doctrine is still valid, a person in his or her place of
employment while lawfully engaged in his or her occupation has no duty to retreat
before using or threatening to use deadly force, even if he or she was otherwise
engaged in criminal activity. The paragraph below can be modified to include a
person in his or her place of employment while lawfully engaged in his or her
occupation.
If (defendant) was in a [dwelling] [residence] in which [he] [she] had a
right to be, [he] [she] had no duty to retreat and had the right to stand [his]
[her] ground and use [or] [threaten to use] force, including deadly force if [he]
[she] reasonably believed that such conduct was 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].
Give 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). The instruction may need to be
modified in the event that the forcible felony at issue is not a crime against a
person.
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.
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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. 1st DCA 1981);
Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
Read in all cases.
At the end of the last sentence of the paragraph below, there are two sets of
brackets. The words within the first set of brackets should be read if the jury is
instructed on either § 776.012(2), Fla. Stat., or § 776.031(2), Fla. Stat. The words
within the second set of brackets should be read if the jury is instructed on
§ 776.013(1), Fla. Stat. (If the Castle Doctrine for a person in his or her place of
employment still applies, the paragraph below should be modified to include a
person in his or her place of employment while lawfully engaged in his or her
occupation.)
If the evidence is in dispute about whether the defendant was in a dwelling
or residence or whether the defendant had a right to be there or whether the
defendant was engaged in criminal activity, the trial judge must craft a special
instruction for the paragraph below.
In deciding whether (defendant) was justified in the [use] [or]
[threatened use] of deadly force, you must consider the circumstances by
which [he] [she] was surrounded at the time the [force] [or] [threat of force]
was used. The danger need 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,
(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] [was in
a dwelling or residence in which [he] [she] had a right to be].
Presumption of fear (unlawful and forcible entry into dwelling, residence, or
occupied vehicle). Give if applicable. § 776.013(2), 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:
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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(3)(a)-(3)(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 attempts to enter a [dwelling]
[residence] [vehicle] in the performance of [his] [her]
official duties and the officer identified [himself]
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[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
another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so
with the intent to commit an unlawful act involving force or violence.
“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 and only in cases
where the defendant is charged with either: a) an independent forcible felony,
Martinez v. State, 981 So. 2d 449 (Fla. 2008); or b) felony murder, if the
underlying felony is an independent forcible felony, Cook v. State, 192 So. 3d 681
(Fla. 2d DCA 2016).
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). The
instruction may need to be modified in the event that the forcible felony at issue is
not a crime against a person.
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
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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).
[or]
2. in good faith, (defendant) withdrew from physical contact
with (victim) and clearly indicated to (victim) that [he] [she]
wanted to withdraw 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 (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), you may consider this
fact in determining whether the actions of (defendant) were those of a
reasonable person.
Specific act of victim known by defendant. Give if applicable.
If you find that at the time of the alleged (name[s] of relevant crime[s]),
(defendant) knew that (victim) had committed an act [or acts] of violence, you
may consider that fact in determining whether (defendant) reasonably believed
it was necessary for [him] [her] to [use] [or] [threaten to use] deadly 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 (defendant),
you may consider this fact in determining whether the actions of (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.
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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] [defense of another], you may
take into account the relative physical abilities and capacities of (defendant)
and (victim).
Read in all cases.
If in your consideration of the issue of [self-defense] [defense of another]
you have a reasonable doubt on the question of whether (defendant) was
justified in the [use] [or] [threatened use] of deadly force, you should find
[him] [her] not guilty.
However, if from the evidence you are convinced beyond a reasonable
doubt that (defendant) was not justified in the [use] [or] [threatened use] of
deadly force, you 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 July 1,
2017.
A defendant may have knowledge of a victim’s prior specific acts of
violence because he or she was present during the occurrence of the specific acts or
because the defendant heard of the specific acts prior to the date of the alleged act
of self-defense. See Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992).
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d
985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 954], 2006 [930 So. 2d 612], 2008
[976 So. 2d 1081], 2010 [27 So. 3d 640], 2016 [191 So. 3d 411], and 2018 [257
So. 3d 908], and 2019.
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3.6(g) JUSTIFIABLE [USE] [OR] [THREATENED USE] OF NON-
DEADLY FORCE
Because there are many statutes applicable to self-defensethe justifiable use
or threatened use of force, 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).
It is a defense to the crime[s] of (name[s] of relevant crime[s], including
lesser-included offenses) if the actions of (defendant) constituted the justifiable
[use] [or] [threatened] of non-deadly force. “Non-deadly” force means force
not likely to cause death or great bodily harm. “Great bodily harm” means
great as distinguished from slight, trivial, minor, or moderate harm, and as
such does not include mere bruises.
In defense of person. §§ 776.012(1), 776.013(1), Fla. Stats. Give if
applicable.
(Defendant) was justified in [using] [or] [threatening to use] non-deadly
force against (victim) and had no duty to retreat if [he] [she] reasonably
believed that such conduct was necessary to defend [himself] [herself]
[another] against [(victim’s) imminent use of unlawful force] [or] the
imminent commission of (applicable forcible felony listed in § 776.08, Fla. Stat.)
against [himself] [herself] [or] [another].
Give 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). The instruction may need to be
modified in the event that the forcible felony at issue is not a crime against a
person.
In defense of property. § 776.031(1), Fla. Stat. Give if applicable.
(Defendant) was justified in [using] [or] [threatening to use] non-deadly
force against (victim) and had no duty to retreat if:
1. (Victim) [was about to trespass] [or] [was trespassing] or
[was about to wrongfully interfere] [or] [was wrongfully
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interfering] with landreal property other than a dwelling or
personal property; and
2. The landreal property other than a dwelling or personal
property was lawfully in (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) reasonably believed that [his] [her] [use] [or]
[threatened use] of force was necessary to prevent or
terminate (victim’s) wrongful behavior.
Presumption of fear (unlawful and forcible entry into dwelling, residence, or
occupied vehicle). Give if applicable. § 776.013(2), 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 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(3)(a)-(3)(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]]
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[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 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.
“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.
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“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.
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.
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).
Read in all cases.
In deciding whether (defendant) was justified in the [use] [or]
[threatened use] of non-deadly force, you must consider the circumstances by
which [he] [she] was surrounded at the time the [force] [or] [threat of force]
was used. The danger need 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, (defendant) must have actually believed that the danger was real.
Aggressor. § 776.041(1), Fla. Stat. Give if applicable and only in cases
where the defendant is charged with either: a) an independent forcible felony,
Martinez v. State, 981 So. 2d 449 (Fla. 2008); or b) felony murder, if the
underlying felony is an independent forcible felony, Cook v. State, 192 So. 3d 681
(Fla. 2d DCA 2016).
However, the [use] [or] [threatened use] of non-deadly force is not
justified if you find that (defendant) was attempting to commit, committing, or
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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). The
instruction may need to be modified in the event that the forcible felony at issue is
not a crime against a person.
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:
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).
[or]
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.
Prior threats. Give if applicable.
If you find that (defendant), who because of threats or prior difficulties
with (victim), had reasonable grounds to believe that [he] [she] was in danger
of imminent use of unlawful force at the hands of (victim), you may consider
this fact in determining whether the actions of (defendant) were those of a
reasonable person.
Specific act of victim known by defendant. Give if applicable.
If you find that at the time of the alleged (name[s] of relevant crime[s]),
(defendant) knew that (victim) had committed an act [or acts] of violence, you
may consider that fact in determining whether (defendant) reasonably believed
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it was necessary for [him] [her] to [use] [or] [threaten to use] non-deadly
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 (defendant),
you may consider this fact in determining whether the actions of (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] [defense of another] [defense of
property], you may take into account the relative physical abilities and
capacities of (defendant) and (victim).
Read in all cases.
If in your consideration of the issue of [self-defense] [defense of another]
[defense of property] you have a reasonable doubt on the question of whether
(defendant) was justified in the [use] [or] [threatened use] of non-deadly force,
you should find [him] [her] not guilty.
However, if from the evidence you are convinced beyond a reasonable
doubt that (defendant) was not justified in the [use] [or] [threatened use] of
non-deadly force, then you 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 July 1,
2017.
A defendant may have knowledge of a victim’s prior specific acts of
violence because he or she was present during the occurrence of the specific acts or
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because the defendant heard of the specific acts prior to the date of the alleged act
of self-defense. See Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992).
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], 2010 [27 So. 3d 640], 2016 [191 So. 3d 411], and 2018
[257 So. 3d 908], and 2019.
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