SC10-113 – In Re:A

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SC10-113 – In Re:A

State: Florida

Court: Supreme Court

Docket No: sc10-113

Case Date: 04/08/2010

Plaintiff: SC10-113 – In Re: Amendments

Defendant: Standard Jury Instructions In Criminal Cases – Instruction 7.7

Preview:Supreme Court of Florida
No. SC10-113
IN RE:  AMENDMENTS TO STANDARD JURY INSTRUCTIONS IN
CRIMINAL CASES - INSTRUCTION 7.7.
[April 8, 2010]
PER CURIAM.
As amended on the Court’s own motion, we authorize for publication and
use instruction 7.7 of the Standard Jury Instructions in Criminal Cases, on an
interim basis.  We have jurisdiction.  See art. V, § 2(a), Fla. Const.
In Montgomery v. State, No. SC09-332 (Fla. Apr. 8, 2010), we approved the
decision of the First District Court of Appeal in Montgomery v. State, 34 Fla. L.
Weekly D360 (Fla. 1st DCA 2009), to the extent that it concluded that use of
instruction 7.7, the standard jury instruction on manslaughter, resulted in
fundamental error in Montgomery’s first-degree murder case because the
instruction erroneously required the State to prove that the defendant intended to
kill the victim.

In light of Montgomery, we hereby authorize on an interim basis the
publication and use of instruction 7.7 as amended, set forth in the appendix to this
opinion.  In doing so, we express no opinion on the correctness of the instruction
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 on Standard Jury Instructions in Criminal Cases 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 struck-through.  This
interim instruction is authorized for use immediately and until further order of the
Court.
We specifically seek comments on the Court’s amendment to instruction 7.7
from the Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee), along with any suggested changes that the Committee deems
appropriate.  We also welcome comments from any other interested parties.  All
comments shall be filed with the Court no later than sixty days from the date of
this opinion.1
1.   An original and nine paper copies of all comments must be filed with the
Court on or before June 7, 2010, with a certificate of service verifying that a copy
has been served on the Committee Chair, the Honorable Lisa T. Munyon, 425 N.
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It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding - Standard Jury Instructions in Criminal Cases
Judge Lisa T. Munyon, Chair, Standard Jury Instructions in Criminal Cases
Committee, Ninth Judicial Circuit, Orlando, Florida,
for Petitioner
Orange Ave, Suite 1130, Orlando, Florida 32801-1515, c/o Les Garringer, Office
of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, as
well as 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 Chair has until June 28, 2010, to file a response to any comments filed
by interested persons with the Court.  Electronic copies of all comments and
responses also must be filed in accordance with the Court’s administrative order in
In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin.
Order No. AOSC04-84 (Sept. 13, 2004).
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APPENDIX
7.7 MANSLAUGHTER
§ 782.07, Fla. Stat.
To prove the crime of Manslaughter, the State must prove the following
two elements beyond a reasonable doubt:
1.                                                                             (Victim) is dead.
                                                                                                                                                   Give 2a, 2b, or 2c depending upon allegations and proof.
2.                                                                             a.                                                                  (Defendant’s) act(s) intentionally caused the death of
                                                                               (victim).
                                                                               b.                                                                  (Defendant) intentionally procured the death of (victim).
                                                                               c.                                                                  The death of (victim) was caused by the culpable negligence
of (defendant).
However, the defendant cannot be guilty of manslaughter if the killing
was either justifiable or excusable homicide: as I have previously explained
those terms.
The killing of a human being is justifiable homicide and lawful if
necessarily done while resisting an attempt to murder or commit a felony
upon the defendant, or to commit a felony in any dwelling house in which the
defendant was at the time of the killing.   § 782.02, Fla. Stat.
The killing of a human being is excusable, and therefore lawful, under
any one of the following three circumstances:
1.                                                                             When the killing is committed by accident and misfortune in
doing any lawful act by lawful means with usual ordinary caution
and without any unlawful intent, or
2.                                                                             When the killing occurs by accident and misfortune in the heat of
passion, upon any sudden and sufficient provocation, or
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3.                                                                                  When the killing is committed by accident and misfortune
resulting from a sudden combat, if a dangerous weapon is not
used and the killing is not done in a cruel or unusual manner.
Give only if 2(a) alleged and proved, and manslaughter is being defined as a
lesser included offense of first degree premeditated murder.
In order to convict of manslaughter by intentional act, it is not
necessary for the State to prove that the defendant had an premeditated intent
to cause death, only an intent to commit an act that was not justified or
excusable and which caused death.  See Hall v. State, 951 So. 2d 91 (Fla. 2d
DCA 2007).
Give only if 2b alleged and proved.
To “procure” means to persuade, induce, prevail upon or cause a
person to do something.
Give only if 2c alleged and proved.
I will now define “culpable negligence” for you.  Each of us has a duty
to act reasonably toward others.  If there is a violation of that duty, without
any conscious intention to harm, that violation is negligence.  But culpable
negligence is more than a failure to use ordinary care toward others.  In order
for negligence to be culpable, it must be gross and flagrant.  Culpable
negligence is a course of conduct showing reckless disregard of human life, or
of the safety of persons exposed to its dangerous effects, or such an entire
want of care as to raise a presumption of a conscious indifference to
consequences, or which shows wantonness or recklessness, or a grossly
careless disregard for the safety and welfare of the public, or such an
indifference to the rights of others as is equivalent to an intentional violation
of such rights.
The negligent act or omission must have been committed with an utter
disregard for the safety of others.  Culpable negligence is consciously doing an
act or following a course of conduct that the defendant must have known, or
reasonably should have known, was likely to cause death or great bodily
injury.
§ 782.07(2)-(4), Fla. Stat.  Enhanced penalty if 2c alleged and proved.  Give
a, b, or c, as applicable.
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If you find the defendant guilty of manslaughter, you must then
determine whether the State has further proved beyond a reasonable doubt
that:
a.                                                                                  (Victim) was at the time [an elderly person] [a disabled adult]
whose death was caused by the neglect of (defendant), a caregiver.
b.                                                                                  (Victim) was a child whose death was caused by the neglect of
(defendant), a caregiver.
c.                                                                                  (Victim) was at the time [an officer] [a firefighter] [an emergency
medical technician] [a paramedic] who was at the time
performing duties that were within the course of [his] [her]
employment.  The court now instructs you that (official title of
victim) is [an officer] [a firefighter] [an emergency medical
technician] [a paramedic].
Definitions.  Give if applicable.
“Child” means any person under the age of 18 years.
§782.03, Fla. Stat.
“Dangerous weapon” is any weapon that, taking into account the
manner in which it was used, is likely to produce death or great bodily harm.
“Elderly person” means a person 60 years of age or older who is
suffering from the infirmities of aging as manifested by advanced age, organic
brain damage, or physical, mental, or emotional dysfunctioning, to the extent
that the ability of the person to provide adequately for the person=s own care
or protection is impaired.
“Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person=s ability to perform the
normal activities of daily living.
“Facility” means any location providing day or residential care or
treatment for elderly persons or disabled adults.  The term “facility” may
include, but is not limited to, any hospital, training center, state institution,
nursing home, assisted living facility, adult family-care home, adult day care
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center, group home, mental health treatment center, or continuing care
community.
As applied to an Elderly Person or a Disabled Adult.
“Caregiver” means a person who has been entrusted with or has
assumed responsibility for the care or the property of an elderly person or a
disabled adult.   “Caregiver” includes, but is not limited to, relatives, court-
appointed or voluntary guardians, adult household members, neighbors,
health care providers, and employees and volunteers of facilities.
As applied to a Child.
“Caregiver” means a parent, adult household member, or other person
responsible for a child=s welfare.
§ 825.102(3)(a) or § 827.03(3)(a), Fla. Stat.  Give 1 or 2 as applicable.
“Neglect of [a child”] [an elderly person”] [a disabled adult”] means:
1.                                                                                 A caregiver=s failure or omission to provide [a child] [an elderly
person] [a disabled adult] with the care, supervision, and services
necessary to maintain [a child’s] [an elderly person’s] [a disabled
adult’s] physical and mental health, including, but not limited to,
food, nutrition, clothing, shelter, supervision, medicine, and
medical services that a prudent person would consider essential
for the well-being of the [child] [elderly person] [disabled adult];
or
2.                                                                                 A caregiver’s failure to make reasonable effort to protect [a child]
[an elderly person] [a disabled adult] from abuse, neglect or
exploitation by another person.
Repeated conduct or a single incident or omission by a caregiver that
results in, or could reasonably be expected to result in, a substantial risk of
death of [a child] [an elderly person] [a disabled adult]                          may be considered in
determining neglect.
Definitions.  As applied to Designated Personnel.
§ 112.191 and § 633.35, Fla. Stat.
“Firefighter” means any full-time duly employed uniformed firefighter
employed by an employer, whose primary duty is the prevention and
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extinguishing of fires, the protection of life and property therefrom, the
enforcement of municipal, county, and state fire prevention codes, as well as
the enforcement of any law pertaining to the prevention and control of fires,
who is certified by the Division of State Fire Marshal of the Department of
Financial Services, who is a member of a duly constituted fire department of
such employer or who is a volunteer firefighter.
§ 943.10(14), Fla. Stat.
“Officer” means any person employed or appointed as a full-time, part-
time, or auxiliary law enforcement officer, correctional officer, or correctional
probation officer.
§ 401.23, Fla. Stat.
“Emergency Medical Technician” means a person who is certified by
the Department of Health to perform basic life support.
§ 401.23, Fla. Stat.
“Paramedic” means a person who is certified by the Department of
Health to perform basic and advanced life support.
Lesser Included Offenses
MANSLAUGHTER - 782.07
CATEGORY ONE                                                                         CATEGORY TWO            FLA. STAT.   INS. NO.
None
                                                                                     Vehicular homicide      782.071      7.9
                                                                                     Vessel homicide         782.072      7.9
                                                                                     (Nonhomicide lessers)   777.04(1)    5.1
                                                                                     Attempt
                                                                                     Aggravated assault      784.021      8.2
                                                                                     Battery                 784.03       8.3
                                                                                     Assault                 784.011      8.1
                                                                                     Culpable negligence     784.05       8.9
Comment
In the event of any reinstruction on manslaughter, the instructions on
justifiable and excusable homicide as previously given should be given at the same
time.  Hedges v. State, 172 So.2d 824 (Fla. 1965).
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In appropriate cases, an instruction on transferred intent should be given.
Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla.
1999), in any manslaughter case in which causation is an issue to determine if a
special jury instruction on causation is needed.
To be found guilty of Aggravated Manslaughter, there is no statutory
requirement that the defendant have knowledge of the classification of the victim;
therefore, the schedule of lesser included offenses does not include Aggravated
Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement
Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement
Officer.  Those offenses have a different definition of officer.  Additionally, the
excluded lesser included offenses require proof of knowing that the commission of
the offense was on an officer who was engaged in the lawful performance of a
legal duty.
This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985],
1992 [603 So.2d 1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], 2006 [946
So.2d 1061], and 2008 [997 So. 2d 403], and 2010.
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