IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-07. (2018)

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to standard criminal jury instructions 3.6(f) (Justifiable Use of Deadly Force) and 3.6(g) (Justifiable Use of Non-Deadly Force), 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 filed its report proposing amendments to standard criminal jury instructions 3.6(f) and 3.6(g). The proposals were published in The Florida Bar News. One comment was received by the Committee from the Florida Public Defender Association (FPDA). The Committee disagreed with the comment and declined to modify its proposals as suggested by the FPDA.

Following the filing of the Committee's report, the Court published the proposals for comment. One comment was filed with the Court from the FPDA. In its comment, the FPDA raised two issues pertaining to both instructions 3.6(f) and 3.6(g), and one issue limited to the instruction on deadly force. First, the FPDA disagreed with the Committee's proposal to limit the forcible felony language of section 776.013(1), Florida Statutes (2018), by adding the language “against [himself] [herself] [or] [another].” The FPDA pointed out that such language is not included in the statute, and the instruction would not make sense because some forcible felonies are not committed against another person. Second, the FPDA argued that the common law “castle doctrine” ¹ should be added to cover those situations in which the defendant is in his place of business and was engaged in criminal activity. Last, the FPDA opposed the Committee's proposal to add the word “unnecessarily” to the instruction pertaining to section 776.041(2)(a), Florida Statutes (2018). We agree with the FPDA on this latter point and delete “unnecessarily” from the Committee's proposal. However, we request that the Committee further consider the FPDA's comment as it pertains to the castle doctrine, and, if appropriate, submit a report proposing additional amendments to instruction 3.6(f).

We authorize the publication and use of instructions 3.6(f) and 3.6(g) as modified by the Court. Significant changes to the instructions are discussed below.

First, both instructions 3.6(f) and 3.6(g) are modified to be consistent with statutory changes to section 776.013(1), Florida Statutes (2018), as enacted in chapter 2017-77, section 1, Laws of Florida. In addition, with regard to those portions of each instruction pertaining to the situation where the defendant acted in response to the imminent commission of a forcible felony, as listed in section 776.08, Florida Statutes (2018), the Court has added an italicized note to trial judges clarifying that the instruction may need to be modified if the forcible felony at issue is not a crime against a person. Whether a person may justifiably use force in response to a forcible felony that is not directed at a person is an issue that is not properly before this Court. Also, the italicized note to trial judges citing section 776.041(1) is expanded to explain that the forcible felony instruction should only be given in cases where the defendant is charged with either an independent forcible felony or felony murder if the underlying felony is an independent forcible felony. See In re Standard Jury Instructions in Criminal Cases-Report 2014-06, 191 So.3d 411, 412 (Fla. 2016).

Next, instruction 3.6(f) is further modified as follows: (1) the paragraph beginning “It is a defense to the crime[s] of” at the beginning of the instruction now includes the phrase “including lesser-included offenses”; (2) an explanatory note to trial judges is added addressing the fact that there are a number of statutes that pertain to the justifiable use of force; and (3) a new section is added to “inform the jury how to evaluate cases in which there is evidence that the defendant was engaged in criminal activity or was in a place that he or she had no right to be” because in those cases there is a duty to retreat before using deadly force.

Lastly, with regard to instruction 3.6(g), the following additional modifications are made: (1) the language “[or] the imminent commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or] [another]” is added to the sentence pertaining to justification of nondeadly force in defense of a person against the imminent use or threat of imminent use of unlawful force; (2) an explanatory note is added to the instruction for “aggressor” under section 776.041(1), Florida Statutes, that it should only be given in cases where the defendant is charged with either an independent forcible felony or felony murder, if the underlying felony is an independent forcible felony; and (3) two new provisions are to be given if applicable, pertaining to “prior threats” and “specific act of victim known by defendant.”

Having considered the Committee's report, we authorize the amended instructions with our modifications, as set forth in the appendix to this opinion, for publication and use.² New language is indicated by underlining, and deleted language is indicated by struck-through type. We caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

FOOTNOTES

1.   Florida has long recognized the common law “castle doctrine,” “which stands for the proposition that a person's dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed.” Falco v. State, 407 So.2d 203, 208 (Fla. 1981). Although the common law “castle doctrine” was originally limited to the privilege of nonretreat from the home, Weiand v. State, 732 So.2d 1044, 1049 (Fla. 1999), it has also been extended to business premises. Redondo v. State, 380 So.2d 1107, 1110-11 (Fla. 3d DCA 1980) (“In our view, business or employment premises should enjoy the same sanctity as a home for self defense purposes as in each instance the person attacked has a proprietary or near proprietary interest in the place where he is assaulted which is cloaked with a certain privacy protection ․”), quashed in part on other grounds, 403 So.2d 954 (Fla. 1981); see Frazier v. State, 681 So.2d 824, 825 (Fla. 2nd DCA 1996) (agreeing with the Third District Court of Appeal that the “castle doctrine” “extends to protect persons in their place of employment while they are lawfully engaged in their occupation”).

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.

PER CURIAM.

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