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Supreme Court of Florida



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No. SC07-2324


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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES--




REPORT NO. 2007-10.



[December 11, 2008] PER CURIAM.


The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to Standard Jury Instructions in Criminal Cases 7.7 ­ Manslaughter; 8.9 ­ Culpable Negligence; and 6.6 ­ Attempted Voluntary Manslaughter, and requests that the Court authorize the amended standard instructions for publication and use.1 The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. Having considered the Committees report and the comments filed, as well as oral arguments presented to the Court on June 13, 2008, we do not approve the







1. We have jurisdiction. See art. V, § 2(a), Fla. Const.

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Committees proposals as submitted. We do, however, authorize for publication and use instruction 7.7 as modified.


DISCUSSION


The Committee proposed amending instruction 7.7, Manslaughter, by replacing the term "intentionally" with "knowingly or consciously" to remove the requirement of an intentional act that caused or resulted in the victims death. We do not approve the Committees proposal. Rather, we modify instruction 7.7 as follows:


In order to convict of manslaughter by intentional act, it is



not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death . See Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007).


We authorize publication and use of the instruction as modified.


In its proposal amending instruction 8.9, Culpable Negligence, the Committee suggested language that appears to not be in accord with our decision in State v. Greene, 348 So. 2d 3 (Fla. 1977). In Greene, we upheld the constitutionality of the culpable negligence statute, section 784.05, Florida Statutes, stating that "reckless indifference or grossly careless disregard of the safety of others is necessary to prove,,culpable negligence." Id. at 4. Greene relied upon Russ v. State, 191 So. 296 (Fla. 1939), where we defined "culpable negligence" as





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a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.


Greene, 348 So. 2d at 4 (quoting Russ, 191 So. at 298). The Committees proposal would remove from the instructions definition of "culpable negligence" the terms "reckless" and "wanton." For these reasons, we do not approve the proposal.


The Committee also proposed eliminating the intent element from instruction 6.6, Attempted Voluntary Manslaughter, consistent with its proposal to amend the manslaughter instruction. We do not approve the Committees proposal for instruction 6.6 as well. See Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983) ("[A] verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.").


PUBLICATION AND USE


We hereby authorize the publication and use of amended instruction 7.7 ­ Manslaughter, as modified and set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of this instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that any notes and comments associated with





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the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining. The instruction as set forth in the appendix2 shall be effective when this opinion becomes final.


It is so ordered.


QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.


CANADY and POLSTON, JJ., did not participate.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


Original Proceeding ­ Standard Jury Instructions in Criminal Cases Judge Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, Florida, and Judge Bradford L. Thomas, First District Court of Appeal, Tallahassee, Florida, for Petitioner Stephen Krosschell of Goodman and Nekvasil, P.A., Clearwater, Florida, and Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, Florida, as Opponents







2. The amendments as reflected in the appendix are to the Standard Jury Instructions in Criminal cases as they appear on the Courts website at http://www.floridasupremecourt.org/j...ructions.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.





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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) 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.


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 a premeditated intent to cause death, only an intent to commit an act 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
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