IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-08. (2018)

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report proposing amendments to standard criminal jury instructions 7.3 (Felony Murder — First Degree), 7.4 (Murder — Second Degree), and 10.7(d) (Throwing, Making, Placing, Projecting, or Discharging Destructive Device). The proposals were published in The Florida Bar News; the Committee did not receive any comments.

The Committee's proposed amendments to instructions 7.3 and 7.4 derive from the Court's referral wherein the Committee was requested “to submit a report proposing amendments to the applicable homicide criminal jury instructions, in accordance with the Court's recent decision in Williams v. State, [242 So.3d 280] SC17-506 (Fla. Feb. 22, 2018)” and specifically to “consider the holding that Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), requires the jury to make the factual finding under section 775.082(1)(b), Florida Statutes (2016), as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim.” The Committee also considered instruction 10.7 in light of Williams, and concluded that that decision did not implicate the instruction, though other proposed changes were made. We authorize the instructions as proposed for publication and use, and discuss the more significant changes as follows.

In Williams, the Court considered the following certified question: “Does Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), require the jury and not the trial court to make the factual finding under section 775.081(1)(b), Florida Statutes (2016), as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim?” Williams, 242 So.3d at 282. We answered the question in the affirmative, but concluded that Alleyne violations are subject to harmless error review. Id. Specifically, the Court stated in pertinent part:

Because a finding of actual killing, intent to kill, or attempt to kill “aggravates the legally prescribed range of allowable sentences,” Alleyne, 570 U.S. at 115, 133 S.Ct. 2151, by increasing the sentencing floor from zero to forty years and lengthening the time before which a juvenile offender is entitled to a sentence review from fifteen to twenty-five years, this finding is an “element” of the offense, which Alleyne requires be submitted to a jury and found beyond a reasonable doubt.

Id. at 288. Based on Williams, the Committee proposes adding the following note to the trial court and instruction to instruction 7.3:

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(1)(b), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). If the jury were to find the defendant guilty of First Degree Premeditated Murder, the question of whether the defendant intended to kill or attempted to kill would inhere in that verdict. Therefore, the finding below should be made only for cases involving First Degree Felony Murder where it is alleged in the charging document that the defendant actually killed, intended to kill, or attempted to kill the victim. A general verdict for First Degree Murder without a specific finding of premeditation would require the paragraph below to be given.

If you find (defendant) guilty of First Degree Felony Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

We agree with this addition to instruction 7.3 because if a juvenile is found guilty of First Degree Felony Murder, it would not necessarily be evident from the verdict whether the defendant actually killed, intended to kill, or attempted to kill the victim, as required to enhance the juvenile defendant's sentence. In addition, we modify the proposed italicized paragraph above, as set forth in the appendix to the opinion, to state that whether the defendant intended to kill or attempted to kill would inhere in a First Degree Premeditated Murder case which did not involve the principals instruction. We also refer to the Committee the issue of whether a similar instruction should be given (and findings made) when the State relies on a principals theory to prove a case of First Degree Premeditated Murder.

With regard to instruction 7.4, the Committee proposes adding the following trial court note and instruction:

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(3), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). The finding below should be made only for cases involving Second Degree Murder where it is alleged in the charging document that the defendant actually killed, intended to kill, or attempted to kill the victim.

If you find (defendant) guilty of Second Degree Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

This change is in accord with Williams because the Florida Legislature created different sentence review dates depending upon whether the juvenile defendant actually killed, intended to kill, or attempted to kill the victim, applicable to the offense of Second Degree Murder if reclassified as a life felony. See § 775.082(3)(a)5, (3)(b)2, Fla. Stat.

Turning to instruction 10.7, the more significant changes include updating the title from “Throwing, Making, Placing, Projecting, or Discharging Destructive Device” to “Possessing, Throwing, Making, Placing, Projecting, or Discharging a Destructive Device Resulting in Death.” Also, the concept of “possession,” as authorized in In re Standard Jury Instructions in Criminal Cases—Report 2017-03, 238 So.3d 182, 183 (Fla. 2018), is added.

Having considered the Committee's report, we authorize the amended instructions as set forth in the appendix to this opinion, for publication and use.¹ New language is indicated by underlining, and 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.

APPENDIX

FOOTNOTES

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.

PER CURIAM.

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