
    THE FLORIDA BAR re: STANDARD JURY INSTRUCTIONS CRIMINAL CASES.
    No. 67396.
    Supreme Court of Florida.
    Oct. 10, 1985.
    Stephen H. Grimes, Chairman, Lakeland, for the Committee On Florida Standard Jury Instructions In Criminal Cases, Petitioner.
   PER CURIAM.

The Supreme Court Committee on Florida Standard Instructions in Criminal Cases has submitted the following report and recommendations as to amendments to the standard instructions in criminal cases:

1.As presently written, the sentencing charge in capital cases states that the jury’s recommendation must be made by a majority, whereas case law dictates that a tie vote results in a recommendation of life imprisonment. Therefore, pages 81 and 82 should be changed as indicated by the attached pages (exhibit 1). Likewise, the model charge on murder on pages Hi and liii should be changed to reflect this amendment (exhibit 1A).
2. A new manslaughter instruction is submitted to take the place of the one which appears on page 68 (exhibit 2). The new instruction is intended to make clear the residual aspect of manslaughter and to substitute a new definition of culpable negligence more nearly in line with current law. Subsequent to publication, the first “note to judge” was eliminated to make certain that the instruction complied with the rationale of cases such as Delaford, v. State, 449 So.2d 983 (Fla. 2d DCA 1984). The model charge on murder should be changed on pages xliii and xliv to reflect the new manslaughter instruction (exhibit 2A).
3. In chapter 82-164, Laws of Florida, the legislature amended the theft statute, section 812.014, and repealed the statute prohibiting unauthorized temporary use, section 812.041. The existence of this statute did not come to our attention until after The Florida Bar News publication. Therefore, the first line of element 2 of the theft instruction which appears on page 147 should be changed to read: “2. He did so with intent to, either temporarily or permanently,” and the Note to Judges which appears between elements 1 and 2 should be eliminated. The instruction on unauthorized temporary use which appears on page 152 should be eliminated. Finally, the crime of unauthorized temporary use which appears as category (2) offenses under first and second degree grand theft on page 265 of the schedule of lesser included offenses and the accompanying case citation should be eliminated.
4. On page 272 of the schedule of lesser included offenses, an asterisk should be placed after the category (1) offense under sale, manufacture, delivery or possession with intent to sell, manufacture or deliver a controlled substance. This asterisk should read: “Provided that charged offense is a second degree felony under section 893.-13(l)(a)l.” The reason for this is that a conviction under section 893.13(l)(e) is a third degree felony and can only be a lesser included offense if the requisite charge is a second degree felony. Some of the charges under section 893.13(l)(a) are not second degree felonies.
5. In State v. Lowery, 419 So.2d 621 (Fla.1982), the Supreme Court held that the defendant need not be present at the scene of the crime in order to be guilty of second degree felony murder. Therefore, under the instruction for second degree felony murder which appears on page 66, the words “was present and” which appear under element number 3 should be eliminated.
6. A new definition of culpable negligence has been adopted so as to more nearly reflect current law. Therefore, a new instruction on culpable negligence is submitted to take the place of the one which appears on page 91 (exhibit 3).
7. The current instructions do not contain kidnapping and false imprisonment instructions. Appropriate instructions on these subjects are submitted (exhibit 4). The form of the instruction was slightly changed after publication so as to make it consistent with the format of the other instructions.
8. The current instructions include substantial duplication with respect to the various charges on self defense in that they appear separately on pages 40-45 and again under homicide on pages 71-75. To take the place of these instructions the committee has prepared new instructions on self defense which should appear as sections 3.04(d), 3.04(e), and 3.04(f), beginning at page 40 (exhibit 5). The instructions were rearranged and slightly rewritten after publication when it was decided to break them down under the headings of justifiable use of nondeadly force, justifiable use of deadly force, and justifiable use of force by law enforcement officer. There are, however, two changes of a substantive nature. First, under justifiable use of force by a law enforcement officer, a new instruction has been prepared with respect to making an arrest of a suspected felon pursuant to the recent decision of Tennessee v. Garner, [— U.S. -, 105 S.Ct. 1694, 85 L.Ed.2d 1] (1985). The second substantive change is a new instruction under justifiable use of force in resisting arrest under section 776.051(1). This new instruction would take the place of the ones on that subject which no appear on page 43 and page" 75. The reason for this new instruction is to reflect the rulings in Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), and Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985), which hold that in light of section 776.-012 our current instruction is incorrect. Neither of the two substantive changes was included in The Florida Bar News because the need for them was not brought to our attention until after publication.
9. On page 259 of the schedule of lesser included offenses, a double asterisk should appear after culpable negligence — 784.05(2) and culpable negligence —784.05(1) which appear as category (1) lesser included offenses to manslaughter. The double asterisk should read: “But see Smith v. State, 330 So.2d 526 (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976).” The committee believes the schedule to be correct but wishes to call attention to cases which could be construed as holding to the contrary.
10. Element 3 in trafficking in cocaine on page 230 should be changed so as to coincide with element 2. Thus, element 3 should read: “3. The quantity of the substance involved was twenty-eight grams or more.” The wording but not the meaning was changed after publication for purposes of consistency.
11. In view of rule 3.390, Florida Rules of Criminal Procedure, effective January 1, 1985, the present instruction 2.06 should be eliminated. It need not be replaced by a new instruction because item 5 under instruction 2.05 which appears on page 21 advises the jury that it is the judge’s job to determine the proper sentence if the defendant is found guilty.
12. Elements 2 and 3 in trafficking in illegal drugs which appear on page 232 should be changed to allow for a charge on a mixture of an illegal substance as follows: “2. The substance was [ (specific substance alleged)] [a mixture containing (specific substance alleged) ]. 3. The quantity of the substance involved was four grams or more.”
13. The statute on lewd, lascivious or indecent conduct was amended in 1984 to refer to children under the age of sixteen. § 800.04, Fia.Stat. (1984). Therefore, the word “fourteen” which appears under element 1 on page 122 should be changed to read “sixteen.” The need for this change was not brought to our attention until after publication of the proposed amendments.
In our publication in The Florida Bar News we had proposed several additional changes in the schedule of lesser included offenses. However, since that date the Supreme Court issued its opinion in Rotenberry v. State, 468 So.2d 971 (Fla.1985), which appears contrary to the underlying rationale of substantial portions of the schedule of lesser included offenses. Therefore, the committee deemed it advisable not to submit the proposed changes at this time and is considering the necessity of revamping the entire schedule.
Since the last revision of the Florida Standard Jury Instructions in Criminal Cases in 1981, the legislature has changed the numbering of several criminal statutes, thereby making obsolete some of the numbering which now appears in the instruction book. Rather than outlining the numbering changes in this report, the committee requests authorization to make the necessary numbering changes in subsequent Florida Bar publications of the instruction book.

The report is accepted and the recommended changes in the instructions are approved. The committee’s requested authorization to make the necessary numbering changes in subsequent Florida Bar publications of the instruction book is granted. The exhibits are set out following this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.

EXHIBIT 1

conduct to the requirements of law was substantially impaired;

7. The age of the defendant at the time of the crime;

3. Any other aspect of the defendant's character or record, and any other circumstance of the offense.

Each aggravating circumstance, must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision.

. If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.

A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.

The sentence that you recommend to the court must be based upon the facts as you find them from the evidence and the law. You should weigh the aggravating circumstances against the mitigating circumstances, and your advisory sentence must be based on these considerations.

In these proceedings it is not necessary that the advisory sentence of the jury be unanimous.

The fact that the determination of whether you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot you should carefully weigh, sift and consider the evidence, and all of it, realising that human life is at stake, and bring to bear your best judgment in reaching your advisory sentence.

If a majority of the jury determine that (defendant) should be sentenced to death, your advisory sentence will be:

81

A majority of the jury, by a vota of , advise and recommend to the court that it impose the death penalty upon (defendant).

On the other hand, if by six or more votes the jury determines that (defendant) should not be sentenced to death, your advisory sentence will be:

The jury advises- and recommends to the court that it impose a sentence of life imprisonment upon (defendant) without possibility of parole for 25 years.

You will now retire to consider your recommendation. When you have reached an advisory sentence in conformity with these instructions, that form of recommendation should be signed by your foreman and returned to the court.

EXHIBIT 1A

2. The crime for which the defendant is to be sentenced was committed while he was under the influence of extreme mental or emotional disturbance.

3. The capacity of the defendant to appreciate the criminality of his conduct or to conform hi3 conduct to the requirements of law was substantially impaired.

4. The age of the defendant at the time of the crime.

5. Any other aspect of the defendant's character or record, and any other circumstance of the offense.

Each aggravating circumstance must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision.

If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence 3uch weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.

A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.

The sentence that you recommend to the court must be based upon the fact3 as you find them from the evidence and the law. You should weigh the. aggravating circumstances against the mitigating circumstances, and your advisory sentence must be based on these considerations.

In these proceedings it is not necessary that the advisory sentence of the jury be unanimous.

The fact that the determination of whether you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot you should carefully weigh, sift and consider the evidence, and all of it, realizing that human life is at stake, and bring to bear your best judgment in reaching your advisory sentence.

If a majority of the jury determine that Mr. Doe should be sentenced to death, your advisory sentence will be:

"A majority of the jury, by a vote of , advise and recommend to the court that it impose the death penalty upon John Doe for the First Degree Murder of Bradley Jones."

lii

On the other hand, if by six or more votes the jury determines that Mr. Doe should not be sentenced to death, your advisory sentence will be:

"The jury advises and recommends to the court that it impose a sentence of life imprisonment upon John Doe without possibility of parole for 25 years."

You will now retire to consider your recommendation. When you have reached an advisory sentence in conformity with these instructions, that form of recommendation should be signed by your foreman and returned to the court.

liii

Elements

Give 2(a), (b) or (c) depending upon allegations and proof.

Note to Judge

Definitions

Give only if 2(b) alleged and proved.

Give only if 2(c) alleged and proved.

EXHIBIT 2

MANSLAUGHTER F.S. 782.07

Before you can find the defendant guilty of manslaughter, the state must prove the following elements beyond a reasonable doubt.

1. (Victim) is dead.

2. The death was caused by the

(a) act of (defendant).

(b) procurement of (defendant).

(c) culpable negligence of (defendant).

However, the defendant cannot be guilty of manslaughter if the hilling was either justifiable or excusable homicide as I have previously explained those terms.

In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable homicide on page 61 should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla. 1963). --

To "procura" means to persuade, induce, prevail upon or cause a person to do something.

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 Í3 a course of conduct showing reckless disregard of human life, of 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 of 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 c.onduct that the defendant must have known, or reasonably should have known, was likely to 'cause death or great bodily injury.

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EXHIBIT 2A

2. Is done from ill will, hatred, spite or an evil intent, and

3. Is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had a premeditated intent to cause death.

THIRD DEGREE MURDER

Before you can find Mr. Doe guilty of Third Degree Murder of Bradley Jones, the State must prove the following three elements beyond a reasonable doubt:

1. Bradley Jones is dead.

2. The death occurred as a consequence of and while Mr. Doe was engaged in the commission of grand theft.

3. Mr. Doe was the person who actually killed Bradley Jones.

The crime of grand theft is knowingly and unlawfully obtaining the property of another having a value of. $100 or more with intent to deprive the other person of a right to the property or a benefit therefrom.

It is not necessary for the State to prove the killing was perpetrated with a design to effect death.

MANSLAUGHTER

Before you can find Mr. Doe guilty of Manslaughter of Bradley Jones, the State must prove the following elements beyond a reasonable doubt:

1. Bradley Jones is dead.

2. The death was caused by the

(a) act of Mr. Doe,

(b) procurement of Mr. Doe,

(c) culpable negligence of Mr. Doe.

However, Mr. Doe cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.

To "procure" means to persuade, induce, prevail upon or cause a person to do something.

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 ham, that violation is negligence. But culpable negligence is mors 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 of 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.

xliii

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.

[2.03] MEANING OP DEFENDANT'S PLEA OP NOT GUILTY; REASONABLE DOUBT; AND BURDEN OP PROOF

The defendant has entered a plea of not guilty. This means you must presume or believe the' defendant i3 innocent. The presumption stays with the defendant as to each material allegation in the indictment through each stage of the trial until it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant's presumption of innocence the State has the burden of proving the following two elements:

1. The crime with which the defendant is charged was committed.

2. The defendant is the person who committed the crime.

The defendant is not required to prove anything.

Whenever the words "reasonable doubt" are used you must consider the following:

A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

EXHIBIT 3

Definition

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 3hows wantonness or recklessness, or a grossly careless disregard of 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.

Elements

Give (a), (b), (c) or (d) as applicable

If (b) given, define applicable felony

Give when 3(b) is alleged. See Carrón v. State, 414 so.2d 288 (Fla. 2d DCA 1982), approved 427 So.52 192 (Pla. 1982)

Read only if confinement is alleged and child is under thirteen years of age.

EXHIBIT 4

KIDNAPPING F.S. 787.01

Before you can find the defendant guilty of kidnapping, the state must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [forcibly] [secretly]

[by threat]

[confined]

[abducted]

[imprisoned]

(victim) against [his] [her] will.

2. (Defendant) had no lawful authority.

3. (Defendant) acted with intent to:

(a) hold for ransom or reward or as a shield or hostage.

(b) commit or facilitate commission of (applicable felony).

(c) inflict bodily harm upon or to terrorize the victim or another person.

(d) interfere with the performance of any governmental or political function.

In order to be kidnapping the [confinement] [abduction] [imprisonment]

(a) must not be 3light, inconsequential or merely incidental to the felony;

(b) must not be of the kind inherent in the nature of the felony; and

(c) must have some significance independent of the felony in that it makes the felony substantially easier of commission or substantially lessens the risk of detection.

Confinement of a child under the age of thirteen (13) is against his will'if such confinement is without the consent of his parent or legal guardian.

Elementa

Give (a), (o) or (d) applicable o* cr u —

Read only if confinement la alleged and child Is under thirteen years of age.

FALSE IMPRISONMENT F.S. 787.02

Before you can find the defendant guilty of false Imprisonment, the state must prove the following three elements beyond a reasonable doubt:

1. (Defendant) (forcibly] [secretly]

[by threat]

[confined]

[abducted]

[imprisoned]

[restrained]

(victim) against [his] [her] will.

2. (Defendant) had no lawful authority.

3. (Defendant) acted for any purpose other them to:

(a) hold for ransom or reward or as a shield or hostage.

(b) commit or facilitate commission of any felony.

(c) inflict bodily harm upon or to terrorize the victim or another person.

(d) interfere with the performance of any governmental or political function.

Confinement of a child under the age of thirteen (13) is against his will if such confinement is without the consent of his parent or legal guardian.

EXHIBIT 5

3.04 (d) JUSTIFIABLE USE OF DEADLY FORCE

Not* to Judge

Read in all cases

Give if applicable F.S. 782.02

Insert and define applicable felony defendant alleges victim attempted to commit

Give if applicable

776Í012, .031

Insert and define applicable forcible felony defendant alleges victim was about to commit

Since there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which (defendant) is charged if the (death of] (injury to] (victim) resulted from the justifiable use of force likely to cause death or great bodily harm.

The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:

1. another's attempt to murder him, or

2. any attempt to commit (applicable felony) upon him, or

3. any attempt to commit (applicable felony) upon any dwelling house occupied by

him, or

4. any attempt to commit (applicable felony) in any dwelling house occupied by him.

A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to himself or another, or

2. the imminent commission of (applicable forcible felony) against himself or another.

Aggressor F.S. 776.041

Give if applicable

Define applicable forcible felony

Force in resisting arrest

F.S. 776.051(1) and F.S. 776.012

Give if applicable

See Ivester v. State, 3W So.2d 925 (Fla. 1st OCA 1931); Jackson v. State, 463 So.2d 372 (Fl¿. Sth DCA 1985).

In some instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction.

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:

1: (Defendant) was attempting to commit, committing or escaping after the commission of (applicable forcible felony); or

2. (Defendant) initially provoked the use of force against himself, unless:

(a) The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had ex-

' hausted every reasonable means to escape the danger, other than using force likely to cause death or great bodily harm to (assailant).

(b) In good faith, the defendant withdrew from physical contact with . (assailant) and indicated clearly to (assailant) that he wanted to withdraw and stop the use of force likely to cause death or great bodily harm, but (assailant) continued or resumed the use of force.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known, or reasonably appears to be a law enforcement officer.

Howaver, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself (or another), but only to the extent he reasonably believes such force is necessary.

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Road In all cases

Necessity to avoid use of deadly force Read in all cases

Retreat

Read in all cases

Defense

of home

Give if applicable

Define

felony

Prior threats

Give if applicable

In deciding whether defendant was justified in the use of force likely to cause death or great bodily harm, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual: however, to justify the use of force likely to cause death or great bodily harm, 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. Based upon appearances, the defendant must have actually believed that the danger was real.

The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.

The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.

If the defendant was attacked in his own home or on his own premises, he had no duty to retreat and had the lawful right to stand his ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm, if it was necessary to prevent:

[death or great bodily harm to [himself] [another].]

[the commission of a forcible felony.]

If you find chat the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that he was in danger of death or great bodily harm at the hands of (victim), Chen the defendant had the right to arm himself. However, Che defendant cannot justify Che use of force likely to cause death or great bodily harm, if after arming himself he renewed his difficulty with (victim) when he could have avoided the difficulty.

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Reputation of victim

Give if applicable

Physical abilities Read in all cases

Read in all cases

If you find chat (victim) had a reputation of being a violent and dangerous person and chat his reputation was known co Che defendant, you may consider chis face in determining whether Che actions of che defendant were Chose of a reasonable person in dealing with an individual of Chat reputation.

In considering che Issue of self-defen3e, you may cake inco account che relacive physical abilities and capacicies of Che defendant and (viccim).

If in your consideration of Che issue of self-defense you have a reasonable doubt on Che

question of whether or noc che defendant was justified in che use of force likely Co cause death or great bodily harm, you should ¿find che . defendant not guilty.

However, if from Che evidence you are convinced chat che defendant was noc justified in che use of force likely co cause death or great bodily harm, you should find him guilcy if all Che elements of Che charge have been proved.

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3.04(e) JDSTIFXABLE USE OF NON-DEADLX FORCE

Nota to Judge

Reed in all cases

In defense of parson F.S. 776.012

Give if applicable

In defense of property F.S. 776.031

Give if applicable

Since there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which (defendant) is charged if the [injury to] (victim) resulted from the justifiable use of force not likely to cause death or great bodily harm.

(Defendant) would be justified in using force not likely to cause death or great bodily harm against (victim) if the following two facts are proved:

1. (Defendant) must have reasonably believed that such conduct was necessary to defend (himself), (another), against (victim's) imminent use of unlawful force against (the defendant) (other person).

2. The use of unlawful force by (victim) must have appeared to (defendant) ready to take place.

(Defendant) would be justified in using force not likely to cause death or great bodily harm against (victim) if the following three facts are proved:

1. (Victim) must have been trespa33ing or otherwise wrongfully interfering with land or personal property.

2. The land or personal property must have lawfully been in (defendant's) possession, or in the possession of a member of his immediate family or household, or in the possession of some person whose property he wa3 under a legal duty to protect.

3. (Defendant) must have reasonably believed that his use of force was necessary to prevent or terminate (victim's) wrongful behavior.

Aggressor F.S. 776.041

Give if applicable

Define applicable forcible felony

Force in resisting arrest

F.S. 776.051(1) and F.S. 776.012

Give if applicable

See Ivester^v, State, 1st DCA 1981); Jackson v. State, 463 So.2d 372""(Fla. 5th DCA 1985) .

In seme instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction.

Read in all cases

The use of force not likely to cause death or great bodily harm is not justifiable if you find:

1. (Defendant) was attempting to commit, committing or escaping after the commission of a (applicable forcible felony).

2. (Defendant) initially provoked the use of force against himself, unless:

(a) The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger or death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using force not likely to cause death or great bodily harm to (assailant).

(b) In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that he wanted to withdraw and stop the use of force not likely to cause death or great bodily harm, but (assailant continued or resumed the use of force.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known, or reasonably appears to be a .law enforcement officer.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself (or another), but only to the extent he reasonably believes such force is necessary.

In deciding whether defendant was justified in the use of force not likely to cause death or great bodily harm, you- must judge him by the circumstances by whict} he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of force not likely to cause death or great bodily harm, 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. Based upon appearances, the defendant must have actually believed that the danger wa3 real.

Necessity to avoid us* of deadly force Read in all casas

Reputation of victim

Give if applicable

Physical abilities Read in all cases

Read in all cases

The defendant cannot justify his use of force not likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.

If you find that (victim) had a reputation of being a violent and dangerous person and that his reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether or not the defendant was justified in the use of force not likely to cause death or great bodily harm, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of force not likely to cause death or great bodily harm then you should find him guilty if all the elements of the charge have been proved.

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3.04(f) JUSTIFIABLE USE OF FORCE BY LAW ENFORCEMENT OFFICER

la making an arrest of a faloa F.S. 776.OS

Siva if ■ applicable

Force in making unlawful arrest prohibited 77s!q51(2)

Give if applicable

In making an arrest of a suspected felon Tennessee v. Garner UJ.S. Sup. Ct. 1985), S3 LW 4410

Give 1(a), (b) or (c) as applicable

Define felon

A law enforcement officer, or any person he has summoned or directed to assist him, nead not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer i3 justified in the use of any force that he reasonably believes necessary to defend himself or another from bodily harm while making the arrest. That force is also justified when necessarily used:

1. in retaking a person who has been convicted of a felony and who has escaped.

2. in arresting a person who has been convicted of a felony and who is fleeing from justice.

Use of any force by a law enforcement officer or any person summoned or directed to assist the law enforcement officer is not justified if:

1. The arrest i3 unlawful.

2. It is known by the officer or the person assisting him to be unlawful.

1. In arresting a suspected felon a law enforcement officer can use force likely to cause death or great bodily harm if

(a) the law enforcement officer has probable cause to believe that the suspected felon poses a threat of serious physical harm, either to the officer or to others.

(b) the suspected felon has threatened the law enforcement officer with a weapon.

(c) the law enforcement officer has probable cause to believe the suspected felon has committed a crime involving the infliction or threatened infliction of serious physical harm.

Mad if 1(a)(b) or (c) given

To prevent eseape front custody F.S. 776.07(1) Give if applicable

To prevent escape from penal institution F.S. 776.07(2) Give if applicable

Give if applicable

F.S. 776.06(1)

F.S. 776.06(2)

Definition Give if applicable

If the law enforcement officer has am opportunity to do so he must give the suspected felon warning that he is atbout to use force likely to cause death or great bodily harm.

A law enforcement officer or other person who has an arrested person in his custody is justified in the use of any force that he reasonably believes to be necessary to prevent the escape of the arrested person from custody.

.A guard or other law enforcement officer is justified in the use of any force that he reasonably believes to be necessary to prevent an escape from a penal institution of a person the officer reasonably believes is lawfully detained.

"Deadly force" includes, but is not limited to:

1. Firing a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and

2. The firing of a firearm at a vehicle in which the person to be arrested is riding.

A "firearm" is legally defined as (adapt from F.S. 790.001(6) as required by allegations) 
      
       We note that the Court has recently rendered numerous decisions concerning the appropriateness of multiple convictions for one criminal episode. These decisions may affect the schedule of lesser included offenses. We request the committee to review this schedule in light of these opinions.
     