IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS IN CAPITAL CASES. (2017)

This matter is before the Court on our own motion to consider the criminal jury instructions pertaining to the imposition of the death penalty. On an interim basis, we authorize for publication and use amended Standard Jury Instructions in Criminal Cases 7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases) and 7.12 (Dialogue for Polling the Jury (Death Penalty Case)). In addition, we propose, on our own motion, new instructions 3.12(e) (Jury Verdict Form—Death Penalty) and 7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases).¹ We have jurisdiction. See art. V, § 2(a), Fla. Const.

In Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), the United States Supreme Court held a portion of Florida's death penalty sentencing scheme unconstitutional because a jury was not required to find the facts necessary to impose a sentence of death. See id. at 619. On remand from the Supreme Court, in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017), we held that “in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Id. at 54. We further held that a unanimous jury recommendation for death is required before a trial court may impose a sentence of death. Id. In response to Hurst, the Florida Legislature enacted chapter 2017-1, Laws of Florida, effective March 13, 2017. This legislation requires a jury to unanimously determine that a defendant should be sentenced to death before a trial court may impose the death penalty.

In light of chapter 2017-1, Laws of Florida, and our decision in Hurst, we hereby authorize on an interim basis the publication and use of jury instructions 3.12(e), 7.11, 7.11(a), and 7.12, as set forth in the appendix to this opinion. Certain language that previously appeared in jury instruction 7.11, unrelated to the portion of Florida's death penalty law that was deemed constitutionally problematic in Hurst v. Florida and Hurst—for example, the definitions of statutory aggravating factors—has been transferred to new instruction 7.11(a) without any substantive changes. In adopting these interim instructions, we express no opinion on their correctness and further note that this authorization forecloses neither requesting additional or alternative instructions, nor contesting the legal correctness of the instructions. New language is indicated by underlining, and deleted language is struck through. These interim instructions are authorized for use immediately and until further order of the Court.

We seek comments and suggestions on the interim instructions from the Committee, specifically with regard to those changes that are based upon chapter 2017-1, Laws of Florida, and Hurst. We further invite comments from any other interested persons regarding these specific aspects of the interim instructions. All comments shall be filed with the Court no later than forty-five days from the date of this opinion.²

It is so ordered.

I write in response to Justice Polston's dissent, which apparently disagrees with authorizing the proposed jury instructions for publication on an interim basis. Regardless of his views on the merits of Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), Justice Polston ignores that there is now legislation passed by the Legislature and signed into law by the Governor, effective March 13, 2017, which requires a unanimous jury verdict of death. Ch. 2017-1, § 1 Laws of Fla.; see § 921.141(2), Fla. Stat. (2016); see also Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016). Ironically, even while continuing to adhere to his views on Hurst, Justice Polston joined the majority in Evans v. State, 42 Fla. L. Weekly S200 (Fla. Feb. 20, 2017), concluding that chapter 2016-13, Laws of Florida, could be applied to pending prosecutions with jury instructions consistent with Hurst.

Clearly the new capital sentencing law applies to pending prosecutions in Florida, and it is this Court's obligation to provide guidance to the trial courts, lawyers, litigants, and, most importantly, the jury—the finder of fact—as to the proper instructions on the law and verdict form. Thus, I concur in the majority's authorization of the jury instructions and verdict form, which are consistent with the Legislature's most recent revision to Florida's capital sentencing law.

In light of changes to section 921.141, Florida Statutes, made by the Legislature in 2016 and recently in chapter 2017-1, Laws of Florida, I am not opposed to issuing proposed jury instructions for comment. I agree that the jury should be asked to render a verdict as to each aggravating circumstance alleged by the State, since that is expressly required by the statute and since the death penalty cannot be imposed unless at least one aggravating factor is proven beyond a reasonable doubt. § 921.141(2)(b)1, Fla. Stat. (2016).³ The jury's decision as to each aggravator, of course, must be unanimous. § 921.141(2)(b), Fla. Stat. However, I question whether we need special verdicts as to each statutory mitigating circumstance or as to the weighing process.⁴ See ch. 2017-1, § 1, Laws of Fla. (“If a unanimous jury determines that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of death.”). I would invite comment as to whether it would be preferable to ask a jury that unanimously finds an aggravating factor to then simply return a general verdict reflecting its sentencing recommendation, consistent with the statute.

The proposed jury instructions are based in part on this Court's decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017). Accordingly, because I continue to believe that the United States Constitution and the United States Supreme Court's decision in Hurst v. Florida, 136 S. Ct. 616 (2016), do not support this Court's erroneous holding in Hurst v. State, I dissent. As Justice Canady cogently explained,

[c]ontrary to the majority's view, “each fact necessary to impose a sentence of death” that must be found by a jury is not equivalent to each determination necessary to impose a death sentence. The case law makes clear beyond any doubt that when the [United States Supreme] Court refers to “facts” in this context it denotes “elements” or their functional equivalent. And the case law also makes clear beyond any doubt that in the process for imposing a sentence of death, once the jury has found the element of an aggravator, no additional “facts” need be proved by the government to the jury. After an aggravator has been found, all the determinations necessary for the imposition of a death sentence fall outside the category of such “facts.”

Hurst v. State, 202 So. 3d at 77 (Canady, J., dissenting).

Contrary to Justice Pariente's assertion in her concurring opinion, I have not forgotten that the Florida Legislature was forced to address the majority's erroneous ruling. And although I agreed in an earlier decision that chapter 2016-13, Laws of Florida, could be applied to pending prosecutions with jury instructions, there is nothing ironic about that. I agree that the Court should approve relevant instructions but through our normal committee process to address chapter 2017-1, Laws of Florida. Until that happens, I do not believe our trial courts are frozen and unable to function without hearing how to instruct a jury from this Court. They are better than that.

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FOOTNOTES

1.   The amendments and the new jury instructions are based upon proposals that, while not previously filed with the Court, were published by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee). We take this opportunity to thank the Committee for its dedication to this significant undertaking.

2.   All comments must be filed with the Court on or before May 29, 2017, with a certificate of service verifying that a copy has been served on the Criminal Jury Instructions Committee Chair, The Honorable F. Rand Wallis, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, schneidb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee has until June 28, 2017, to file a response to any comments filed with the Court, as well as to propose any suggested modifications deemed appropriate and necessary. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court ofFlorida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

3.   Section 921.141 requires the jury to “return findings identifying each aggravating factor found to exist.” § 921.141(2)(b), Fla. Stat. (2016). The statute also provides that the “defendant is eligible for a sentence of death” only if the jury “[u]nanimously finds at least one aggravating factor.” § 921.141(2)(b)2.

4.   Section 921.141(2)(b) directs that the jury must base its recommendation on whether sufficient aggravating factors exist and whether the aggravating factors outweigh the mitigating circumstances. A properly instructed jury could simply be instructed to answer yes or no to the following question: “Do you unanimously recommend a sentence of death?” It makes no sense to me to have the jury make findings on mitigating circumstances because that is not required by the statute and because the jury's verdict is only a recommendation to the judge, who must then make independent findings as to mitigating circumstances and make an independent sentencing decision. The majority's proposed interrogatory-style verdicts would imply that the judge should be bound by a jury's assessment of mitigating circumstances, which is contrary to the statute and makes no sense. Are we really suggesting that the sentencing judge cannot find a circumstance to be mitigating unless found by the jury? If detailed jury findings as to mitigating circumstances are not intended to be binding on the sentencing judge, I question why they are needed at all.

PER CURIAM.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. PARIENTE, J., concurs with an opinion. LAWSON, J., concurs specially with an opinion. POLSTON, J., dissents with an opinion, in which CANADY, J., concurs. CANADY, J., concurs.