author: WELCH, Judge.

text:
    STATE of Alabama v. Alvin Leroy WRIGHT, Jr.
    CR-05-2243.
    Court of Criminal Appeals of Alabama.
    June 29, 2007.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellant.
    Richard E. Keith, Montgomery, for ap-pellee.
   WELCH, Judge.

The State of Alabama appeals from the trial court’s order dismissing the indictment against Alvin Leroy Wright, Jr. The indictment charged Wright with first-degree escape, a violation of § 13A-10-31, Ala.Code 1975.

Wright previously had been convicted of unlawful possession of a controlled substance, a felony. As a result of that conviction, Wright was sentenced to take part in the Montgomery County Community Corrections Program and was ordered to comply with all terms and conditions established by that program. Wright reported to the program as required, and a program official asked Wright to wait to speak with him. Despite the request, Wright left the program’s offices without notifying anyone. He told the trial court that he left because he had to go to work; however, afterward, Wright also failed to “maintain communications” with the case manager assigned to him. (C. 30.)

On November 4, 2005, the Montgomery County grand jury indicted Wright for first-degree escape for escaping or attempting to escape custody imposed as a result of his felony conviction. On August 21, 2006, Wright appeared before the Montgomery Circuit Court to enter a guilty plea to the escape charge. In responding to questions from the court, Wright said that he “ain’t had no intention of escaping.” (R. 4.) Wright explained to the court that he initially reported to the community corrections program.

“I came in, I paid my money and I went down and paid my money to Mr. Tate. And he took me in the back and gave me a drug test and I passed it. And came out and he asked me to sit down for a minute. I sat down, and he had me out there for a minute or two. So I told my baby’s mom I like I got to get on back to work. Because I was already late. He was supposed to be about 6:30 and it was about 8:30. So I said you just stay right here and get my next court date. I mean my next date to report. And he charged me with escape.”

(R. 6.) Wright acknowledged that he did not wait as he had been instructed.

Wright’s attorney then reminded the court that he had filed a motion to dismiss the indictment on the ground that the terms “escape,” “custody” and “detention” were vague and ambiguous. The court said that it was clear that, even though Wright was participating in the community corrections program, he was still in the custody of the Department of Corrections. The court denied the motion to dismiss the indictment. The court also determined that, based upon Wright’s responses and his demeanor, Wright did not want to plead guilty and refused to accept the guilty plea. The case was set for trial.

Three days after the plea hearing, Wright again appeared before the Montgomery Circuit Court. At that time, the court noted that § 15-18-170 et seq., Ala. Code 1975, the statute authorizing the community corrections program, provided:

“The willful failure of an inmate to remain within the extended limits of his or her confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly.”

§ 15-18-175(d)(3)e., Ala.Code 1975. Based upon the language of that provision, the court dismissed the indictment. In an attempt to clarify its rationale for ordering the dismissal, the court stated that “[b]e-cause the statute says, ‘shall be an escape from a penal institution’ is the charge that under the known section is in violation of the statute.” (R. 7.) The court again stressed that § 15-18-175(d)(3)e. provides that an inmate’s failure to remain within the limits of his confinement “shall be” deemed an escape from a penal institution.

The State appealed from the trial court’s judgment dismissing the indictment. Other than the notation in the case-action summary indicating that the indictment was dismissed, there is no written judgment of dismissal in the record. From the statements the court made in dismissing the indictment against Wright, however, it appears that the basis for the dismissal was the court’s belief that Wright should have been indicted for second-degree escape rather than first-degree escape.

As mentioned, Wright was charged with escape in the first degree because, the State alleged, he had “escaped or attempted to escape from custody imposed pursuant to that conviction,” and the conviction for which he was in custody was a felony. § 13A-10-31(a)(2). Second-degree escape does not include the element of being in custody for a felony conviction. “A person commits the crime of escape in the second degree if he escapes or attempts to escape from a penal facility.” § 13A-10-32(a). Apparently, the trial court was of the opinion that because the statute authorizing the community corrections program provides that a state inmate’s failure to remain within the limits of his confinement shall be deemed an escape from a state penal institution, then escape in the second-degree is the only appropriate charge for someone who improperly leaves the program.

In an analogous circumstance, the Alabama Supreme Court has previously held that an inmate who improperly leaves the custody of the Supervised Intensive Restitution (“SIR”) program, which is similar to the community corrections program, can properly be charged with and convicted of first-degree escape. Ex parte Jones, 530 So.2d 877 (Ala.1988). Like the statute authorizing the community corrections program, the statute authorizing the SIR program provides that an inmate’s failure to remain within his confines is deemed an escape from a “penal facility.” Specifically, the SIR statute provides as follows:

“The willful failure of an inmate to remain within the extended limits of the inmate’s confinement, or to willfully return within the time prescribed to the place of confinement designated by the commissioner or his agent, shall be deemed as an escape from the custody of a penal facility and shall be punishable as prescribed by law.”

§ 15-18-121, Ala.Code 1975.

In reaching its holding in Jones, the Supreme Court agreed with this Court’s explanation that earlier cases did not stand for the proposition that an inmate who escapes while on the SIR program by failing to return to his residence can be guilty only of second-degree escape to the exclusion of any other escape offense. “ ‘On the contrary, escape in the third degree is a “catch-all” statute and is applicable to all escapes. Abernathy v. State, 462 So.2d 960 (Ala.Crim.App.1984). In appropriate cases, escape from the SIR program can be escape in the first degree.’ ” Ex parte Jones, 530 So.2d at 879, quoting Grantham v. State, 540 So.2d 775 (Ala.Crim.App.1987.)

The Alabama Supreme Court agreed with this Court’s interpretation of § 15-18-121, Ala.Code 1975, under which an escape from the SIR program could constitute first-degree escape,

“because the language of that statute— ‘shall be deemed as an escape from the custody of a penal facility’ — does not track verbatim the language of § 13A-10-32. Had the legislature intended an escape from the SIR program to constitute only escape in the second degree, it would have been simple for it to say so. Instead, it provided that such an escape would be deemed to be ‘an escape from the custody of a penal facility.’ We think this language was more likely incorporated so that an inmate’s ‘custody’ could not and would not be construed to be similar to some type of probation or parole, as once was the interpretation with regard to work release programs. See Grimes v. State, 402 So.2d 1094 (Ala.Crim.App.1981); Eady v. State, 369 So.2d 841 (Ala.Crim.App.), cert. denied, 369 So.2d 843 (Ala.1979). Once both Grimes and Eady were overruled by Alexander [v. State, 475 So.2d 625 (Ala. Crim.App.1984) ] it became unnecessary to define the type of custody from which an inmate on the SIR program could escape. Therefore, we hold that an inmate who escapes from the SIR program can be charged with escape in the first degree, second degree, or third degree under either § 13A-10-33, -32, or -31, depending upon the facts of his ease.”

Ex parte Jones, 530 So.2d at 879.

That rationale applies equally to the language in § 15-18-175(d)(3)e. That is to say, in deeming an inmate’s failure to remain within the extended limits of his confinement under the community corrections program an escape from a state penal institution, the statute defines the inmate’s status for purposes of invoking the escape offenses set forth in Alabama’s Criminal Code. In other words, if a person fails to remain within the extended limits of his confinement as those limits are defined by the community corrections program, then his status is that of an inmate who has escaped from a state penal institution or from the custody of the county sheriff, depending upon the underlying conviction.

Just as a “traditional” inmate (that is, an inmate incarcerated within prison walls) who escapes from a penal institution can be charged with first-degree escape if he uses physical force, threat of physical force, or a deadly weapon or instrument in escaping, § 13A~10-31(a)(l), or if he escapes after having been convicted of a felony, § 13A-10-31(a)(2), an inmate in the community corrections program who fails to stay within the parameters of the dictates of the program can also be charged with first-degree escape if, in escaping, he uses physical force, the threat of physical force, or a deadly weapon or instrument, or if he was in custody because of a felony conviction. Accordingly, an inmate who escapes from a community corrections program can, under the appropriate circumstances, properly be charged with and convicted of first-degree escape.

Because an inmate taking part in the community corrections program can be charged with first-degree escape under the appropriate circumstances, the trial court improperly dismissed the indictment against Wright. In reaching this determination, however, we do not express an opinion as to the efficacy of the first-degree escape charge against Wright. That determination is to be left to a jury or other finder of fact.

For the reasons set forth above, the judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur.

      . Section 15-18-170 et seq., Ala.Code 1975, known as the Alabama Community Punishment and Corrections Act, authorizes counties to establish community corrections programs as an alternative to incarceration.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Dean KILGORE, Respondent.
    No. SC06-1763.
    Supreme Court of Florida.
    Nov. 21, 2007.
    Rehearing Denied Feb. 28, 2008.
    Bill McCollum, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, FL, for Petitioner.
    Neal A. Dupree, Capital Collateral Regional Counsel, Paul Kalil, William Hennis, and Rachel L. Day, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We have for review a decision of a district court of appeal on the following question, which the district court certified to be of great public importance:

ARE COUNSEL APPOINTED TO PROVIDE COLLATERAL REPRESENTATION TO DEFENDANTS SENTENCED TO DEATH, PURSUANT TO SECTION 27.702, AUTHORIZED TO BRING PROCEEDINGS TO ATTACK THE VALIDITY OF A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE?

Kilgore v. State (Kilgore II), 933 So.2d 1192, 1193 (Fla.2d DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we hold that while Kilgore is entitled to prosecute a collateral claim attacking a prior conviction utilized as an aggravator in his capital case, he is not entitled to representation by the same counsel appointed to represent him in the capital case.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are reflected in this Court’s opinion in Kilgore v. State (Kilgore I), 688 So.2d 895 (Fla.1996), and the Second District Court of Appeal’s opinion in Kilgore II. In 1978, Kilgore was convicted of first-degree murder, kidnapping, and trespassing with a firearm. Kilgore II, 933 So.2d at 1193. He was sentenced to two life sentences with twenty-five-year mandatory minimums. Id. at 1194. The Second District Court of Appeal per curiam affirmed Kilgore’s judgment and sentence on direct appeal. Kilgore v. State, 380 So.2d 589 (Fla. 2d DCA 1980) (unpublished table decision). Kilgore did not seek postconviction relief. Kilgore II, 933 So.2d at 1194.

While serving his life sentences in the Polk County Correctional Institution, Kil-gore was charged with the murder of another inmate. Id. Kilgore was convicted, and during the penalty phase, the 1978 first-degree murder conviction was submitted by the State as an aggravator to justify a death sentence and the female victim of the 1978 kidnapping testified against Kilgore. Id. The sentencing court sentenced Kilgore to death after finding two aggravating circumstances: (1) Kilgore was under sentence of imprisonment at the time he committed the murder; and (2) Kilgore had been previously convicted of a felony involving the use or threat of violence to the person. Kilgore I, 688 So.2d at 897. These aggravators were, of course, related to the 1978 case. We affirmed Kilgore’s first-degree murder conviction and death sentence on direct appeal. Id. at 896.

Subsequently, the Office of the Capital Collateral Regional Counsel (CCRC), was appointed to represent Kilgore to collaterally challenge his 1994 first-degree murder conviction and death sentence. Kilgore II, 933 So.2d at 1192, 1194. During public records litigation in the 1994 ease, some “state attorney notes” of interviews of the 1978 kidnapping victim and her son were turned over to Kilgore. Id. at 1194. The notes had not previously been provided to counsel for Kilgore, and when compared to other statements given by these witnesses, the notes allegedly revealed substantial impeachment material sufficient to give rise to a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Kilgore II, 933 So.2d at 1194. Having identified what counsel believed to be substantial grounds to challenge an important aggravator used by the State to justify a death sentence, CCRC sought to vacate the 1978 conviction based upon the holding in Brady requiring disclosure of exculpatory evidence, including impeachment evidence. See id. In turn, however, the State filed a motion to bar CCRC from representing Kilgore in the 1978 case, id., and the circuit court granted the motion on the basis that Florida’s statutory scheme for appointment of counsel did not authorize CCRC’s representation in the noncapi-tal case. See id. at 1192-93.

Kilgore sought to appeal the circuit court’s order to the Second District, and the Second District elected to convert the appeal to a proceeding in certiorari. Id. The Second District granted the writ of certiorari and quashed the trial court’s order, but certified the foregoing question of great public importance. Id. at 1193, 1197. The Second District observed that section 27.702, Florida Statutes, is not clear on the extent of CCRC’s representation “under the unique circumstances of this case,” id. at 1193, and concluded:

If a primary aggravating circumstance is a prior first-degree murder or violent felony conviction, and if there are valid grounds to seek to invalidate it, CCRC should, as a matter of effective representation, pursue that course. The statute itself directs CCRC to challenge a death sentence and seeking to invalidate a prior conviction in this context is a direct attack on the sentence. However, even if the statute was intended to prevent CCRC from representing the inmate in such collateral proceedings, such a limitation would not be permitted because it would deny the inmate effective assistance of counsel.

Id. at 1197. The district court concluded that because Florida law required the pri- or judgment to be set aside in order for the aggravator to be challenged in the capital case, Kilgore was entitled to have effective counsel do what CCRC was attempting to do on his behalf, a course of action also consistent with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed.2003). See id. at 1195 & n. 10.

ANALYSIS

The State argues that the trial court correctly relied upon Florida Statutes in discharging CCRC from representing Kilgore in a non-death penalty case. In contrast, Kilgore contends that the district court correctly recognized that he was entitled to have capital postconviction counsel challenge any possible infirmities in his capital conviction, including challenging Kilgore’s prior violent felony convictions that were used as aggravators to support Kilgore’s sentence of death. Because the issue involved in this case is strictly a question of law, this Court’s review is de novo. See State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001) (“If the ruling consists of a pure question of law, the ruling is subject to de novo review.”).

STATUTES

Florida has an explicit statutory scheme in place to provide postconviction counsel to all capital defendants, including Kilgore. Because Kilgore has no constitutional right to postconviction counsel, whether CCRC is authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction depends upon the construction and interpretation of the scope of responsibility and authority granted both to CCRC and private registry counsel in chapter 27, Florida Statutes (2002).

Section 27.7001, Florida Statutes, articulates the legislative intent in providing for collateral representation for persons sentenced to death:

It is the intent of the Legislature to create part IV of this chapter, consisting of ss. 27.7001-27.711, inclusive, to provide for the collateral representation of any person convicted and sentenced to death in this state, so that collateral legal proceedings to challenge any Florida capital conviction and sentence may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice. It is the further intent of the Legislature that collateral representation shall not include representation during retrials, resentencings, proceedings commenced under chapter 940, or civil litigation.

§ 27.7001, Fla. Stat. (2002) (emphasis added). This provision makes apparent the legislative intent to limit counsel’s role to capital postconviction proceedings. Other provisions within chapter 27 specifically address CCRC. For instance, section 27.702(1), Florida Statutes, provides in pertinent part:

The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court.

§ 27.702(1), Fla. Stat. (2002). This provision further evidences legislative intent that counsel be confined to capital postcon-viction proceedings. Similarly, section 27.702(2) requires CCRC to represent persons convicted and sentenced to death within the region in collateral postconviction proceedings, unless a court appoints or permits other counsel to appear as counsel of record. § 27.702(2), Fla. Stat. (2002). Section 27.706, Florida Statutes, also prohibits CCRC from engaging in the private practice of law. § 27.706, Fla. Stat. (2002). Once again, we see an expression of intent to provide counsel only in capital postconvietion proceedings.

The Legislature also has established a registry of private attorneys to represent persons in postconviction capital collateral proceedings. See § 27.710, Fla. Stat. (2002) (providing for the maintenance of a registry of private attorneys to represent death-sentenced individuals in postconviction proceedings). Section 27.711, Florida Statutes, establishes the terms and conditions of appointment of attorneys as counsel in postconviction capital collateral proceedings. In particular, section 27.711(l)(c) provides that as used in section 27.710 and in section 27.711, the term “postconviction capital collateral proceedings” is defined as follows:

“Postconviction capital collateral proceedings” means one series of collateral litigation of an affirmed conviction and sentence of death, including the proceedings in the trial court that imposed the capital sentence, any appellate review of the sentence by the Supreme Court, any certiorari review of the sentence by the United States Supreme Court, and any authorized federal habe-as corpus litigation with respect to the sentence. The term does not include repetitive or successive collateral challenges to a conviction and sentence of death which is affirmed by the Supreme Court and undisturbed by any collateral litigation.

§ 27.711(l)(c), Fla. Stat. (2002). Moreover, section 27.711(11) limits the authority of registry counsel in much the same way that CCRC representation is limited by section 27.7001 as set out above:

An attorney appointed under s. 27.710 to represent a capital defendant may not represent the capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.

§ 27.711(11), Fla. Stat. (2002) (emphasis added). Hence, registry counsel are expressly prohibited from representing a capital defendant in a postconviction proceeding other than the capital proceeding for which counsel was appointed.

The State relies upon the language of section 27.711, which specifically applies to registry counsel, and asserts that the Legislature would have logically intended the same restrictions on the scope of representation by both CCRC and registry attorneys. Thus, the State implicitly relies on the doctrine of in pari materia, which requires that statutes relating to the same subject be construed together to harmonize the statutes and give effect to legislative intent. See Zold v. Zold, 911 So.2d 1222, 1229 (Fla.2005).

In contrast, Kilgore argues that the limitations enumerated in the aforementioned sections for registry counsel are not applicable to CCRC’s representation of Kilgore on his 1978 prior violent felonies. Kilgore essentially advocates for the application of the principle of statutory construction referred to as expressio unius est exclusio alterius. Kilgore suggests that if the Legislature intended to preclude CCRC from representation in underlying convictions, it could have explicitly stated so in the relevant legislation. See Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla.2000) (“Under the principle of statutory construction, expressio unius est exclusio al-terius, the mention of one thing implies the exclusion of another.” (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996))); Thayer v. State, 335 So.2d 815, 817 (Fla.1976) (“Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned.” (citing Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944))).

While we acknowledge that the Legislature has not explicitly spoken on the issue before us, we conclude that the State’s contentions appear to come closest in identifying statutory intent. We note that although the Legislature has not explicitly prohibited CCRC from representing a death-sentenced individual in a collateral challenge to a prior felony conviction used to establish an aggravator supporting a sentence of death, the Legislature also has not expressly authorized CCRC to take such action. In particular, section 27.7002(4) provides that no attorney may be appointed at state expense to represent any defendant in collateral legal proceedings, unless as expressly authorized by chapter 27. § 27.7002(4), Fla. Stat. (2002). Chapter 27 simply does not expressly authorize CCRC to challenge a noncapital conviction and sentence.

Moreover, when the statutes governing CCRC are read in conjunction with statutes governing registry counsel, the narrow scope of representation authorized by the statutory scheme becomes even more apparent. See § 27.711(11), Fla. Stat. (2002). Section 27.702(1) further appears to contemplate narrow authorization for CCRC by stating that CCRC shall represent death-sentenced individuals “for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person.” § 27.702(1), Fla. Stat. (2002) (emphasis added). Therefore, we conclude that CCRC is not expressly authorized under the applicable statutes to collaterally challenge a noncapital conviction.

CONCLUSION

We conclude that CCRC is not authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction that was used as an aggravator in support of a sentence of death. Accordingly, we quash the decision of the district court, answer the certified question in the negative, and remand with directions for further proceedings consistent herewith.

It is so ordered.

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

      . § 921.141 (5)(a), Fla. Stat. (1995).

      . § 921.141(5)(b), Fla. Stat. (1995).

      .Members of the Fifth District, who had been temporarily assigned to duty in the Second District by then Chief Justice Pariente, composed the panel.

      . Except where otherwise indicated, the statutes are currently codified in the same form as they were in 2002.


text:
    Matthew MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. SC05-2379.
    Supreme Court of Florida.
    Dec. 6, 2007.
    Rehearing Denied Feb. 29, 2008.

      Neal A. Dupree, Capital Collateral Regional Counsel, and Melissa Minsk Dono-ho, Special Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Matthew Marshall, a prisoner under sentence of death, appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s denial of postconviction relief.

PROCEEDINGS TO DATE

Marshall was convicted and sentenced to death for the 1988 murder of Jeffrey Henry. Marshall v. State, 604 So.2d 799, 801-02 (Fla.1992) (Marshall I). After the penalty-phase proceedings were concluded, the jury recommended that Marshall receive a life sentence. Id. at 802. However, the trial judge imposed a sentence of death. Id. The facts of the case are set forth in our opinion in Marshall’s direct appeal of his conviction and sentence. See id. On direct appeal, we affirmed the first-degree murder conviction and the death sentence imposed by the trial judge over the jury’s recommendation. Id. at 801.

Subsequently, Marshall filed a postcon-viction motion raising twenty-seven claims. See Marshall v. State, 854 So.2d 1235, 1238 & n. 2 (Fla.2003) (Marshall II). The trial court held an evidentiary hearing on four of the claims but summarily denied others. Id. at 1239. On appeal, we affirmed the trial court’s denial of postconviction relief on all but one issue: Marshall’s claim of juror misconduct. Id. at 1253. In this claim, Marshall alleged that racial remarks and jokes as well as the jury’s consideration of nonrecord materials deprived him of a fair and impartial trial. Id. at 1239. He attached three sworn affidavits to his postconviction motion in support of his claim. Id. Two of the affidavits were from jurors in his trial, and the other was from an attorney, Ronald Smith. Id. We concluded that the juror affidavits “discussed matters pertaining to the jury’s deliberations.” Id. More specifically, however, Smith’s affidavit stated that he received a telephone call from a woman who claimed that she had served on the jury in Marshall’s case in which she told him:

(1) some jurors decided Marshall was guilty before the trial was over; (2) some jurors told racial jokes about Marshall; (3) some jurors announced during the guilt phase that they were going to vote for a guilty verdict and life sentence because they wanted Marshall to return to prison to kill more black inmates; and (4) some jurors, despite the trial judge’s orders forbidding it, read and discussed articles concerning the trial.

Id. Smith was unable to recall the name of or otherwise identify the woman who called his office. Id.

On appeal, we held that the trial court erred in summarily denying Marshall’s juror misconduct claim. Id. at 1244. We found that the alleged juror misconduct discussed in Smith’s affidavit required further proceedings. See id. We further observed that “it appears that evidence could be submitted that could identify the purported juror who contacted Mr. Smith to ascertain whether such misconduct took place.” Id. at 1242. We remanded for an evidentiary hearing on the claim, but with limiting instructions:

The scope of the hearing on remand is limited to attempting to obtain the identity of the female juror who spoke to Mr. Smith, to interview that juror, and then to conduct further interviews only if the court determines that there is a reasonable probability of juror misconduct. Moreover, the trial court may wish to conduct most or all of the questioning of the jurors, thereby ensuring that unnecessarily intrusive questions will not be asked of the jurors and to prevent questioning on matters that inhere in the verdict. Cf. People v. Hedgecock, 51 Cal.3d 395, 272 Cal.Rptr. 803, 795 P.2d 1260, 1274 (1990) (discussing steps trial court can take to avoid a chilling effect on jury deliberations when holding evidentiary hearing on juror misconduct claim).

Marshall II, 854 So.2d at 1253.

After remand for an evidentiary hearing, the circuit court directed counsel to investigate the whereabouts of the jurors. The court further decided to question all of the jurors who could be located and not just the female ones. It was discovered that two of the jurors were deceased, leaving ten jurors to be questioned. Subsequently, at an initial hearing on March 24, 2004, the circuit court first questioned six of the surviving jurors who were subpoenaed to appear. The court advised each of the jurors that neither the individual juror nor any of the other jurors was in trouble. The court then asked each juror if he or she was a juror in Marshall’s case. Each of the six jurors responded affirmatively. The court then asked each juror:

Are you the juror who phoned attorney Ronald B. Smith, who is a lawyer in Stuart, and said basically two things. First, that you were related to one of Mr. Smith’s clients and also that you were a juror in the case and that you observed other jurors doing things that were improper including making racial jokes and also failing to follow the judge’s instructions that the jurors should not come into any contact with news media coverage during the trial?

Each of the six jurors responded in the negative. The court also asked each juror if he or she knew who the person was that called Smith. Each again responded in the negative. After all six of the jurors were questioned individually, the court dismissed the jurors with agreement by the State and Marshall.

Subsequently, and before the next scheduled hearing on the issue, Marshall filed an emergency motion seeking to add a witness to the list of those to be questioned at the hearing. The motion alleged that during the attempt to locate the remaining witnesses, an investigator found the ex-wife of one of the surviving jurors, and requested that the court permit the ex-wife to testify. Attached to the motion was a sworn affidavit from Debra Thoma-son stating that her former husband, juror Coy Thomason, had discussed the case with her and others, even though he knew he was not supposed to talk about the case; he followed the case in the newspapers and carried newspaper articles about the case in his briefcase; and he “made it clear” to Debra Thomason and others that he thought that Marshall was “guilty from the getgo,” because of Marshall’s status as a prison inmate. The affidavit also alleged that Debra Thomason had read an article in the newspaper about the possibility of jurors going back to court regarding the issue of juror misconduct in the case and that the reference to “[t]he racial jokes and the sharing of information from newspaper articles brought my ex husband’s face immediately to mind.”

On May 19, 2004, the circuit court held a hearing to interview the remaining jurors from the case. The court again advised each juror that the juror was not in trouble. The court also asked each the three questions previously asked the other jurors in the March hearing. Each of the jurors affirmed participation as a juror in Marshall’s case but responded negatively to the other two questions, as had been the case with the other jurors questioned in the earlier proceedings. Neither Marshall nor the State offered any additional questions. After the court excused the jurors, counsel and the court addressed Marshall’s emergency motion to add a witness. After discussion, the court denied the motion but suggested that Marshall might be able to file an additional postconviction motion, saying, “I really hesitate to go outside of the — if you will, the traditional procedure,” apparently alluding to this Court’s instructions on remand.

On June 2, 2004, Marshall filed a motion to interview juror Thomason, based upon the affidavit of Debra Thomason. The motion alleged that “Mr. Marshall has demonstrated good cause for being granted permission to interview juror Coy Lee Thomason. Fla. R. Civ. Pro. 1.431(h).” Marshall also filed a successive and amended motion to vacate the judgment of conviction and sentence based upon juror Thomason’s alleged misconduct. The post-conviction motion further alleged that Debra Thomason had died on June 4, 2004.

At a June 30, 2004, hearing on the pending motions, the State suggested that the court question juror Coy Thomason as it had the other jurors. Marshall’s counsel requested that she be allowed to interview Coy Thomason before the court questioned him. The court declined that request, explaining:

I don’t want to restrict a complete examination of Mr. Thomason, but I — I really feel that the procedure that the Supreme Court mandated — or I guess suggested strongly, as to the earlier interviews — although the issue was different, I think the idea is the same. So I’m going to follow that procedure.

The court then issued an order granting the motion to interview Coy Thomason in part, stating that pursuant to the terms of Florida Rule of Civil Procedure 1.431(h), the court would conduct the initial questioning of the juror and would allow subsequent questioning by counsel as it deemed appropriate.

On June 10, 2005, the court held a hearing during which the court and the parties agreed to conduct a two-part interview of juror Thomason, one part devoted to the issues on remand from this Court and one part devoted to the newly alleged juror misconduct issue raised in the successive motion for postconviction relief. The court first questioned juror Thomason and advised him that he was not in trouble. The court then asked the three questions that had been asked of all of the other jurors who had been interviewed. Thomason responded that he was a juror in Marshall’s case but that he was not the juror who called Smith and that he did not know who that person was and “didn’t even know it happened.” In response to Thomason’s answer to the third question, the court asked, “Did you know anything about this before I just started talking about it?” Thomason ,said he did not. The court then asked Thomason two additional questions. The court first asked, “While you were a juror trying the Matthew Marshall case, did you ever discuss the case with your ex-wife Debra Thomason or any people at your place of work?” Thomason said that he did not. Next, the court asked, “Did you ever read any newspaper articles regarding the Matthew Marshall case while you were a juror on the case?” Thomason replied that he did not. The court then had Thomason step outside the courtroom.

With Thomason absent, Marshall’s counsel proposed five additional questions for the court to ask Thomason. The State did not object to the first question proposed but objected to the remaining questions. In response, Marshall’s counsel withdrew one of the questions, the trial court agreed to rephrase one of the questions, and the court sustained the State’s objection to the other two questions. The court then interviewed Thomason again and asked, “First ... did you at anytime carry a briefcase with you containing articles of the Matthew Marshall case?” Thomason replied that he did not. Next, the court asked, “Did anyone tell you or have you read any newspaper articles or heard anything on radio or television about why you were being called here today?” Again Thoma-son responded in the negative. Thomason was then excused.

On September 28, 2005, the trial court entered a final order denying relief on all of the claims of juror misconduct in the pending motions for postconviction relief. In its order, the court concluded: (1) the female juror who called Smith cannot be identified; (2) no further juror interviews are necessary; (3) no proof exists that juror Thomason violated the court’s instructions and engaged in jury misconduct; and (4) “[n]o reasonable probability exists that any of the acts charged of juror misconduct occurred.” This appeal followed.

APPEAL

Marshall raises three issues on appeal: (1) whether the trial court erred by failing to adequately question former jurors about alleged jury misconduct and by restricting the scope of its inquiry; (2) whether the trial court erred by refusing to take Debra Thomason’s testimony and requiring Marshall to file a successive motion for post-conviction relief and by failing to expand the scope of the inquiry of the former jurors; and (3) whether the trial court erred by not allowing counsel to informally interview former juror Coy Thomason and by limiting the manner and scope of the questioning of Thomason.

Questioning of Former Jurors

Marshall first argues that the trial court erred by failing to adequately question former jurors about alleged jury misconduct and by restricting the scope of its inquiry.

Florida appellate courts have uniformly held that a court’s decision on whether to allow an interview of jurors after trial is subject to review for an abuse of discretion. See, e.g., Boyd v. State, 910 So.2d 167, 178 (Fla.2005) (concluding that the trial court did not abuse its discretion by refusing to question the jury about allegations made by a friend of the defendant that she had overheard jurors discussing extrajudicial information during the guilt phase of a capital trial); Baptist Hosp. of Miami Inc. v. Maler, 579 So.2d 97, 101 (Fla.1991) (holding that a trial court abused its discretion in authorizing an inquiry of jurors based on matters that inhered in the verdict); Shere v. State, 579 So.2d 86, 94-95 (Fla.1991) (finding that a trial court did not abuse its discretion in refusing to grant a capital defendant’s motion to interview the jury, which was based on allegations contained in an anonymously written letter to a newspaper); Melrose Nursery, Inc. v. Collinsworth, Alter, Nielson, Fowler & Dowling, Inc., 882 So.2d 891, 892 (Fla. 3d DCA 2002) (recognizing that trial courts have broad discretion to grant or deny a motion to interview jurors); Roland v. State, 584 So.2d 68, 70 (Fla. 1st DCA 1991) (stating that the appropriate standard of review for a trial court’s ruling on a motion to interview jurors is abuse of discretion); Schofield v. Carnival Cruise Lines, Inc., 461 So.2d 152, 155 (Fla. 3d DCA 1984) (explaining that the standard of review for an appellate court is whether the trial court abused its broad discretion to permit or disallow jury interviews). In the instant case, the trial court’s discretion was specifically limited by the express directions on remand issued by this Court when it determined that while further proceedings should be conducted on Marshall’s claim of juror misconduct, those proceedings should be limited and sharply focused on the matters set out in the Smith affidavit.

In our opinion, we specifically instructed the trial court about the appropriate scope of the hearing on remand by directing that “[t]he scope of the hearing on remand is limited to attempting to obtain the identity of the female juror who spoke to Mr. Smith, to interview that juror, and then to conduct further interviews only if the court determines that there is a reasonable probability of juror misconduct.” Marshall II, 854 So.2d at 1253. In remanding for an evidentiary hearing on the claim of juror misconduct, we further directed that “the trial court may wish to conduct most or all of the questioning of the jurors, thereby ensuring that unnecessarily intrusive questions will not be asked of the jurors and to prevent questioning on matters that inhere in the verdict.” Id. A review of the record below reveals that the trial court conducted further proceedings and interviewed the jurors in strict accordance with our instructions.

The trial court interviewed all of the surviving ten jurors from Marshall’s trial. Further, even though the trial court did not have an opportunity to interview juror Cunningham, who was deceased, this juror had previously supplied an affidavit alleging possible juror misconduct, but that affidavit contained no reference to the type of misconduct alleged in the Smith affidavit. See id. at 1239-40 (discussing juror Cunningham’s allegations). Moreover, as this Court directed, the court’s questioning of each juror focused on attempting to discover the identity of the person who spoke to attorney Ronald Smith. While Marshall argues that the trial court should have directly asked the former jurors about the allegations of juror misconduct based on the allegations of the unidentified caller in Smith’s affidavit, such an inquiry would have contravened our specific instructions that the trial court first attempt to find and interview the unidentified juror who had called Smith before proceeding further. See id. at 1253. In addition, the trial court questioned all of the surviving jurors, rather than limiting the questioning to the female jurors, one of whom had allegedly called Smith.

As we noted in our prior Marshall II opinion, there is a very fine line that the courts must walk in investigating claims of juror misconduct without invading the confidentiality of juror deliberations. We attempted to maintain that line in our prior decision to allow further proceedings in this case while cautioning the trial court to exercise care in conducting those proceedings. We can hardly fault the trial court here for adhering to our instructions. Accordingly, we find that the trial court did not abuse its discretion in interviewing the former jurors in compliance with our mandate.

Thomason Affidavit

Marshall next argues that the trial court erred by refusing to take Debra Thoma-son’s testimony, requiring Marshall to file a successive motion for postconviction relief, and failing to expand the scope of the inquiry of the former jurors.

Just as the trial court’s conduct of juror interviews is subject to an abuse of discretion standard of review, the trial court’s denial of Marshall’s emergency motion to add Debra Thomason as a witness is subject to an abuse of discretion standard of review. See, e.g., Boyd, 910 So.2d at 178; Maler, 579 So.2d at 101; Shere, 579 So.2d at 94-95; cf. Way v. State, 760 So.2d 903, 916 (Fla.2000) (finding that the trial court did not abuse its discretion in concluding that the testimony of witnesses was beyond the scope of the remand). Likewise, the trial court’s failure to expand the scope of the inquiry of the remaining jurors based on the allegations in Debra Thomason’s affidavit is also subject to an abuse of discretion standard of review, as is the trial court’s determination that Marshall should file a successive motion for postconviction relief. Cf. Arbelaez v. State, 898 So.2d 25, 42-43 (Fla.2005) (reviewing for an abuse of discretion a trial court’s rejection of a supplemental motion filed after an evidentiary hearing held on remand but before a ruling, because the motion raised arguments beyond the scope of this Court’s remand); Huff v. State, 762 So.2d 476, 481 (Fla.2000) (stating that the standard of review for a trial court’s determination regarding a motion to amend a postconviction motion is whether there was an abuse of discretion).

We conclude that the trial court’s refusal to take Debra Thomason’s testimony at the May 19, 2004, hearing was not an abuse of discretion. The scope of the hearing was not just limited by the type of misconduct alleged in the Smith affidavit, it was also expressly limited by this Court’s cautionary directions in Marshall II. As discussed above, we explicitly instructed the trial court that “[t]he scope of the hearing on remand is limited to attempting to obtain the identity of the female juror who spoke to Mr. Smith, to interview that juror, and then to conduct further interviews only if the court determines that there is a reasonable probability of juror misconduct.” Marshall II, 854 So.2d at 1253. The Thomason affidavit did not relate to the identity of the juror who contacted Ronald Smith but rather raised a separate issue of possible juror misconduct. In denying Marshall’s motion, the trial court expressed concern about adhering to this Court’s instructions about the scope of the hearing on remand. In light of our explicit instructions, we conclude the trial court’s decision to restrict the hearing to finding that juror was not an abuse of discretion.

Similarly, given this Court’s explicit limitation about the scope of the hearing on remand, we conclude the trial court’s attempt to adhere to our mandate by requiring Marshall to file a successive motion raising a new and separate issue of alleged juror misconduct was not an abuse of discretion. See Arbelaez, 898 So.2d at 42-43. We note the trial court did conduct a hearing on the new claim and questioned juror Thomason about the allegations in Debra Thomason’s affidavit. Further, we find no error in the trial court’s resolution of this claim given juror Thomason’s responses to the court’s questions and the absence of any other evidence to sustain the claim. Of course, the trial court could not have reasonably anticipated that Debra Thomason would die before a hearing on the successive motion could be held.

Finally, we conclude the trial court’s failure to expand the scope of the inquiry of the other former jurors to include the Thomason claim was not an abuse of discretion. Marshall argues that the court should have expanded the scope of the inquiry of the former jurors based on the allegations in Debra Thomason’s affidavit. Significantly, Marshall did not seek to interview jurors, other than Coy Thomason, about the allegations contained in Debra Thomason’s affidavit. Moreover, the Tho-mason affidavit did not explicitly allege that Coy Thomason spoke with other jurors about the media reports, prematurely deliberated Marshall’s guilt with other jurors, brought articles into the jury room, or discussed any racial matters with other jurors. Finally, as we have repeatedly noted, the trial court’s actions were specifically limited by this Court’s directions on remand.

Accordingly, we hold that the trial court did not abuse its discretion by refusing to take Debra Thomason’s testimony, in requiring Marshall to file a successive motion for postconviction relief, and in not expanding the scope of the inquiry of the former jurors.

Examination of Coy Thomason

Marshall next argues that the trial court erred by not allowing counsel to question former juror Coy Thomason before the hearing and by thereafter limiting the manner and scope of the questioning of Thomason.

As discussed above, a trial court’s decision whether to allow an interview of jurors after trial is subject to review for an abuse of discretion. See, e.g., Boyd, 910 So.2d at 178; Maler, 579 So.2d at 101; Shere, 579 So.2d at 94-95. Moreover, a trial court’s decision regarding the manner and scope of questioning of jurors also is subject to review for an abuse of discretion. See, e.g., Melrose Nursery, Inc., 832 So.2d at 892-93; Sconyers v. State, 513 So.2d 1113, 1117 (Fla. 2d DCA 1987) (“If the trial court finds that a further interview of a juror or jurors is warranted, then it should conduct such interview(s), in its discretion, as would be necessary to determine the merits of appellant’s allegations.”).

Marshall asserts that the trial court abused its discretion because parties may engage in prehearing discovery relating to a postconviction motion. In support of this argument, Marshall cites our decision in State v. Lewis, 656 So.2d 1248, 1249-50 (Fla.1994). Contrary to Marshall’s implication, Lewis does not suggest that parties have an unqualified entitlement to engage in prehearing discovery relating to a postconviction motion. Rather, the availability of discovery in a post-conviction case is a matter firmly within the trial court’s discretion. See id. at 1250.

Marshall also suggests that because different rules govern informal juror interviews by counsel and formal juror interviews by a court, the trial court abused its discretion by not allowing counsel to informally interview Coy Thomason. However, Marshall did not file a notice of intent to interview juror Coy Thomason; Marshall filed a motion to interview Tho-mason and cited to Florida Rule of Civil Procedure 1.431(h) in support of the motion. Importantly, the trial court’s order granting the motion in part clearly states that the interview would be conducted by the court pursuant to rule 1.431(h). Rule 1.431(h) provides that “[i]f the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.” Fla. R. Civ. P. 1.431(h). Furthermore, this Court and other courts have found it to be within a court’s discretion to conduct the interview itself. See Kelley v. State, 569 So.2d 754, 762 (Fla.1990) (explaining that the Court had previously relinquished jurisdiction to permit the judge to interview the jurors); Sconyers, 513 So.2d at 1117 (remanding for the trial court to conduct juror interviews). We directed in Marshall II that “the trial court may wish to conduct most or. all of the questioning of the jurors, thereby ensuring that unnecessarily intrusive questions will not be asked of the jurors and to prevent questioning on matters that inhere in the verdict.” 854 So.2d at 1253. The trial court expressed a desire to adhere to this suggestion when it denied Marshall’s request to informally interview Coy Tho-mason. For all these reasons, we conclude the trial court’s decision to deny Marshall an informal interview of Thomason was not an abuse of discretion.

Marshall also contends that the trial court abused its discretion by limiting the scope of the questioning of Thomason. In an attempt to restrict the scope of the hearing on remand but allow for a more thorough examination of Coy Thomason based on the allegations in Debra Thoma-son’s affidavit, the trial court conducted a multipart interview of Thomason. In light of the rather delicate nature of juror interviews in general (in order to avoid matters that inhere in the verdict) and in light of this Court’s cautionary language about the narrow scope of the hearing on remand in this specific case, we conclude the trial court’s decision was not an abuse of discretion. In addition to asking the questions posed to the other jurors, the trial court asked Thomason two questions apparently proposed by the State. The court first asked, “While you were a juror trying the Matthew Marshall case, did you ever discuss the case with your ex-wife Debra Thomason or any people at your place of work?” Next, the court asked, “Did you ever read any newspaper articles regarding the Matthew Marshall case while you were a juror on the case?” Thomason replied in the negative to both questions. Both questions focused on the specific allegations in Debra Thomason’s affidavit.

Marshall’s counsel proposed five additional questions for the court to ask Coy Thomason. The State did not object to the first question, so the court asked Tho-mason, “First ... did you at anytime carry a briefcase with you containing articles of the Matthew Marshall case?” Thomason replied that he did not. Like the earlier question asked by the court to Thomason, this question focused on a specific allegation in Debra Thomason’s affidavit. The court also asked Thomason a question which was a rephrased version of a question originally proposed by Marshall: “Did anyone tell you or have you read any newspaper articles or heard anything on radio or television about why you were being called here today?” Thomason responded in the negative. Although this question did not focus on the allegations in the Debra Thomason’s affidavit, it did concern Thomason’s awareness of the ongoing inquiry into the allegations of juror misconduct.

The court also sustained objections to other questions proposed by Marshall. While the questions may not have improperly inquired into matters which inhere in the verdict, they related to matters not specifically alleged in Debra Thomason’s affidavit. Therefore, the trial court did not abuse its discretion in ruling that the questions raised issues that were not presented.

In sum, we find that the trial court did not abuse its discretion by not allowing counsel to informally interview former juror Coy Thomason or by limiting the manner and scope of the questioning of Tho-mason.

CONCLUSION

Based on the foregoing reasons, we affirm the trial court’s denial of postconviction relief.

It is so ordered.

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

      . She purportedly called Smith in reference to one of his clients, to whom she was related. Id. at 1239 n. 4. On remand, the record contains no additional evidence as to Smith's ability to identify the caller.

      . As recognized by this Court in Marshall II, a verdict cannot be impeached by conduct which inheres in the verdict. 854 So.2d at 1240; see, e.g., McAllister Hotel, Inc. v. Porte, 123 So.2d 339, 344 (Fla.1959); Russ v. State, 95 So.2d 594, 600 (Fla.1957). Moreover, a juror is not competent to testify about matters which inhere in the verdict. § 90.607(2)(b), Fla. Stat. (1999). Judicial inquiry into jurors' emotions, mental processes, or mistaken beliefs is forbidden. State v. Hamilton, 574 So.2d 124, 128 (Fla.1991).

      . See R. Regulating Fla. Bar 4-3.5(d)(4).

      . See Fla. R. Civ. P. 1.431(h).

      . Florida Rule of Criminal Procedure 3.575, which now governs motions to interview jurors in criminal cases, was not in existence when the motion to interview juror Coy Tho-mason was filed. We adopted that rule in 2004. Amendments to the Fla. Rules of Criminal Procedure, 886 So.2d 197, 197 (Fla.2004). It became effective on January 1, 2005. Id. at 200.


author: PER CURIAM. PARIENTE, J.,

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2007-03.
    No. SC07-705.
    Supreme Court of Florida.
    March 6, 2008.
    Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, Florida, for Petitioner.
    R. Blaise Trettis, Executive Assistant Public Defender, 18th Judicial Circuit, Vi-era, Florida, Jay Thomas, Staff Attorney, Second District Court of Appeal, Lake-land, Florida, and Lee G. Cohen, Assistant State Attorney, Eighteen Judicial Circuit, Fort Lauderdale, Florida, Responding with comments.
   PER CURIAM.

We have for consideration thirteen proposed amended or new Standard Jury Instructions in Criminal Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) proposes amendments to Standard Jury Instructions 3.6(f) (Justifiable Use of Deadly Force); 3.6(g) (Justifiable Use of Nondeadly Force); 11.10 (Lewd, Lascivious, Indecent Assault or Act Upon or in the Presence of Child); 21.2 (Resisting Arrest Without Violence); 28.6 (Fleeing to Elude a Law Enforcement Officer); 28.7 (Fleeing to Elude a Law Enforcement Officer); and 28.8 (Fleeing to Elude a Law Enforcement Officer). The Committee also offers new Standard Jury Instructions 28.81 (Fleeing to Elude a Law Enforcement Officer); 28.83 (Aggravated Fleeing and Eluding); 28.85 (Aggravated Fleeing and Eluding); 29.13 (Animal Cruelty [Felony]); 29.15 (Disturbing a School, Religious or Lawful Assembly); and 29.16 (Disturbing a Military Funeral).

The proposals were published for comment in the July 1, 2007, edition of The Florida Bar News. Two comments were received. In response to the comments, the Committee revised proposed new instructions 28.83, 28.85, and 29.13.

Having considered the Committee’s report and response to the comments, we authorize the publication and use of all of the amended and new instructions, except amended instruction 21.2 (Resisting Arrest Without Violence). We refer instruction 21.2 back to the Committee for further consideration in light of this Court’s recent opinion in Polite v. State, 973 So.2d 1107 (Fla.2008) (discussing essential elements of the offense of resisting an officer without violence).

The instructions, as authorized, are set forth in the appendix to this opinion. New language is indicated by underlining, and deleted language is struck-through. In authorizing the instructions for publication and use, 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. We further caution all interested parties that any notes and 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. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LEWIS, C.J., and WELLS, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs in part and dissents in part with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

PARIENTE, J.,

concurring in part and dissenting in part.

I agree with the majority, except that I would sever instructions 29.15 and 29.16 from this opinion and return those instructions to the Committee for reconsideration in light of this Court’s opinion in S.H.B. v. State, 355 So.2d 1176 (Fla.1977). Alternatively, I would incorporate the Official Comments to both of these instructions into the actual text of the instructions themselves.

The statutory provisions on which these instructions are based, sections 871.01(1) and (2), Florida Statutes, criminalize conduct that involves disturbing a school, religious or lawful assembly (instruction 29.15) and disturbing a military funeral (instruction 29.16). As this Court recognized in S.H.B., these statutes can only be constitutional if narrowly construed to avoid the grave danger of criminalizing conduct that is protected under our First Amendment. See 355 So.2d at 1178. Specifically, this Court held that a person must have deliberately acted to create a disturbance in order to commit a criminal offense under section 871.01(1). See id.

While the element of “willfully” in the instruction incorporates the notion of deliberateness, the Court in S.H.B. held that to act deliberately, the defendant

must act with the intention that [the] behavior impede the successful functioning of the assembly in which he [or she] has intervened, or with reckless disregard of the effect of his [or her] behavior. The acts complained of must be such that a reasonable person would expect them to be disruptive. Finally, the acts must, in fact, significantly disturb the assembly.

Id. Although this holding from S.H.B. is included in the official comments to the instructions, the holding is not incorporated into the instructions. Without this explanation, the instructions adopted by the majority in this case will not adequately advise the jury of these “inherent” elements, which are essential to ensure that a defendant is not convicted of constitutionally protected conduct.

I recognize that the constitutionality of these statutes is not before us in a jury instruction case. Nevertheless, at a minimum, we should include language in these instructions that a majority of this Court, almost thirty years ago, determined was necessary to avoid criminalizing constitutionally protected rights to free expression and free speech. The Committee was closely divided on this instruction (eight to six vote) and in light of these serious constitutional concerns, we should either amend the instructions or send them back for further deliberation by the Committee and a more thorough explanation of the closely divided vote.

ANSTEAD and QUINCE, JJ., concur.

APPENDIX

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

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

Read in all cases.

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 deadly force.

Definition.

“Deadly force” means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla. Stat.

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

1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

Insert and define applicable felony that defendant alleges victim attempted to commit.

Give if applicable. §§ 776.012, 776.031, Fla. Stat.

A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to [himself] [herself] or another, or
2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

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

Aggressor. § 776.011, Fla. Stat.

However, the use of deadly force is not justifiable if you find:

Give only if the defendant is charged with more than one an independent forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

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

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given.

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

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Force in resisting arrest. § 776.051(1), Fla. Stat.

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

Give if applicable.

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] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.011, Fla. Stat, may need to be given in connection with this instruction.

Read in all cases.

In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] 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 deadly force, 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.

No duty to retreat.

If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. See exceptions in § 776.013(2), Fla. Stat, which may negate the giving of this instruction.

If the defendant was in a(n) [dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Definitions. Give if applicable.

As used with regard to self defense:

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Prior threats. Give if applicable.

If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.

Reputation of victim. Give if applicable.

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] 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.

Physical abilities. Read in all cases.

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

Read in all cases.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, 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 deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1999 [732 So.2d 1044], 2000 [789 So.2d 954], 2005 [911 So.2d 766], and 2006 [gj-F-kn-L, WeeMy-§329-, Fla., May 25,-2006 930 So.2d 612] and 2008.

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

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

Read in all cases.

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 non-deadly force.

Definition.

“Non-deadly” force means force not likely to cause death or great bodily harm.

In defense of person. § 776.012, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved:

1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person].
2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.

In defense of property. § 776.031, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved:

1. (Victim) must have been trespassing 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] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect.
3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior.

No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Definitions.

As used with regard to self defense,

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Give in all cases.

A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be.

Aggressor. § 776.041, Fla. Stat.

The use of non-deadly force is not justified if you find:

Give only if the defendant is charged with m&r-e-than-one an independent forcible felony. See Giles v. State, 831 So.2d 1268 (Fla. 4th DCA 2002).

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

Define applicable forcible felony.

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

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force, but (assailant) continued or resumed the use of force.

Force in resisting arrest. § 776.051(1), Fla. Stat.

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

Give the following instruction if applicable.

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] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.0U, Fla. Stat., may need to be given in connection with this instruction.

Read in all cases.

In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] [her] by the circumstances by which [he] [she] 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 non-deadly force, 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.

Reputation of victim. Give if applicable.

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] 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.

Physical abilities. Read in all cases.

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

Read in all cases.

If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, 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 non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 2005 [911 So.2d 766], 2006 [930 So.2d 612], and 2008.

11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY

§ 800.04, Fla. Stat.

Give only for those offenses committed on or before October 1, 1999.

To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) was under the age of 16 years.
Give as applicable.
2. (Defendant)
a. [made an assault upon (victim) in a lewd, lascivious, or indecent manner].
[handled or fondled (victim) in a lewd, lascivious, or indecent manner].
b. (Defendant) committed upon (victim) or forced or enticed (victim) to commit
[actual or simulated sexual intercourse].
[deviate sexual intercourse],
[sexual bestiality].
[masturbation].
[sadomasochistic abuse].
[actual lewd exhibition of the genitals].
[any act or conduct which simulated that sexual battery was being or would be committed on (victim) ].
c. (Defendant)
[committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of [ (victim) ] [ (defendant) ]].
[committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object].
d. (Defendant) knowingly committed a lewd or lascivious act in the presence of (victim).

Definitions

Give in all cases.

Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged.

Give when § 800.04(1), Fla. Stat., is charged.

As used in regard to this offense the words “lewd,” “lascivious,” and “indecent” mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Give when assault is charged under § 800.04(1), Fla. Stat.

An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Give when § 800.04(4), Fla. Stat., is charged.

As used in regard to this offense the words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

“In the presence of’ means that (victim) saw, heard, or otherwise sensed that the act was taking place.

See State v. Werner, 609 So.2d 585 (Fla.1992).

Give applicable definitions from § 84-7.001, Fla. Stat., when § 800.04(2), Fla. Stat., is charged.

There is no need to make reference to the words “without committing the crime of sexual battery” because this refers to forcible sexual relations. Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983); Chapters 84-86, Laws of Florida.

Lesser Included Offenses
LEWD, LASCIVIOUS, OR INDECENT ASSAULT OR ACT UPON OR IN PRESENCE OF CHILD — 80(1.04
CATEGORY CATEGORY FLA. INS. ONE_TWO_STAT. NO.
None_
__Attempt_777.04(1) 5.1
__Assault_784.011 8.1
_Battery_784,03_8.3
Unnatural and lascivious act_800.02_11.8

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], and 1995 r657 So.2d 1152], and 2008.

28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER

§ 316.1935(1), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was operating a motor vehicle upon a street or highway in Florida.
2. A duly authorized law enforcement officer ordered the defendant to stop or remain stopped.
Give 3a or Sb as applicable.
3. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer,
a. [willfully refused or failed to stop the vehicle in compliance with the order]-er
b. [having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer].

Definitions.

“Operator” means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008.

28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER

§ 316.1935(2), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four three elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. — A duly authorized law- enforcement officer ordered-the defendant to stop-or-remam-stoppedr

Give 2a or 2b as applicable.

3.2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer,

a. [willfully refused or failed to stop the vehicle in compliance with the order]ea?
b. [having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer].

4.3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.

Definitions.

“Operator” means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER — 316.1935(1)
CATEGORY CATEGORY FLA. INS. ONE_TWO_STAT. NO.
Fleeing to elude_316.1935(1) 28.6
None

Comment

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008.

28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER

(Siren and lights activated with high speed or reckless driving)

§ 316.1935(3)(a), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following five four elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
Give 2a or 2b as applicable
2, — A duly authorized law enforcement officer ordered the-defendant (idefendant) — to—step—or—remain
3*2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer,
a. [willfully refused or failed to stop the vehicle in compliance with the order],
or
b. [having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer].
4*3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
5*4. During the course of the fleeing or the attempting to flee elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.

Definitions.

“Operator” means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

“Willfully” means intentionally, knowingly, and purposely.

Comment

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008.

28.81 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER

(Siren and lights activated with high speed or reckless driving causing serious bodily injury or death)

§ 316.1935(3)(b), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following five elements beyond a reasonable doubt:

L (Defendant) was operating a vehicle upon a street or highway in Florida.
Give 2a or 2b as applicable.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer,
a. willfully refused or failed to stop the vehicle in compliance with the order.
b. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.
3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
4. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.
5. As a result of (defendant’s) fleeing or eluding at high speed or wanton disregard for safety, [he] [she] caused [the death of] [serious bodily injury to] [another person] [a law enforcement officer involved in pursuing or otherwise attempting to stop [his] [her] vehicle].

Definitions.

“Operator” means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

“Street or highway” means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

“Willfully” means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
_ — 316.1935(3)(b) _
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Fleeing to elude__316.1935(3)(a) 28.8
Fleeing to elude_316.1935(2) 28.7
Fleeing to elude_316.1935(1) 28.6
Reckless driving_316.192_28.5

Comment

This instruction was adopted in 2008.

28.83 AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Damage to a Yehicle or Property then Causing Serious Bodily Injury or Death)

§ 316.1935(4)(b) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

L (Defendant) was the driver of a vehicle involved in a crash resulting only in damage [to a vehicle] [to property other than a vehicle] which was driven or attended by a person.
2. (Defendant) knew or should have known that [he] [she] was involved in a crash.
3. (Defendant) knew or should have known of the damage to [the vehicle] [the attended property].
4. (Defendant) willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [driver] [person attending the damaged property] and to any police officer investigating the crash.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [serious bodily injury to] [the death of] (name of victim).

I further instruct you that

§ 316.061, Fla. Stat.

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or as close to the scene of the crash as possible and provide “iden-

tifying information.”

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the “identifying information,” the State satisfies this element of the offense.

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing
Serious Bodily Iniury or Death)
_ — 316.1935(4)(b) and 316.061_
CATEGORY ONE_CATEGORY TWO FLA.STAT. INS. NO,
Aggravated Fleeing_316.1935(4)(a) 28.85
Fleeing to Elude LEO_316.1935(1) 28.6
Leaving the Scene of a Crash
Involving Damage to Vehicle or
Property_316.061_N/A_
_Fleeing to Elude LEO 316.1935(3)(b) 28.81
_Fleeing to Elude LEO 316.1935(3)(a) 28.8
_Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving_316.192_28.5

Comments

This instruction was adopted in 2008.

28.85 AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another)

§ 316.1935(4)(a) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

L (Defendant) was the driver of a vehicle involved in a crash resulting only in damage [to a vehicle] [to property other than a vehicle] which was driven or attended by a person.
2. (Defendant) knew or should have known that [he] [she] was involved in a crash.
3. (Defendant) knew or should have known of the damage to [the vehicle] [the attended property].
4. (Defendant) willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [driver] [person attending the damaged property] and to any police officer investigating the crash.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer],
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [injury to] [damage to the property of] (name of victim).

I further instruct you that

§ 316.061, Fla. Stat

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or as close to the scene of the crash as possible and provide “identifying information.”

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the “identifying information,” the State satisfies this element of the offense.

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing
Injury or Property Damage to Another)
_ — S16.1935(4)(a) and 316.061_
CATEGORY ONE_CATEGORY TWO FLA.STAT. INS. NO.
Fleeing to Elude LEO_316.1935(1)_28.6
Leaving the Scene of a Crash
Involving Damage to Vehicle or
Property_316.061_N/A
_Fleeing to Elude LEO 316.1935(3)(b) 28.81
_Fleeing to Elude LEO 316.1935(3)(a) 28.8
_Fleeing to Elude LEO 316.1935(2) 28.7
Reckless Driving_316.192_28.5

Comments

This instruction was adopted in 2008. 29.13 ANIMAL CRUELTY [FELONY]

{§ 828.12(2), Fla. Stat. reserved]

To prove the crime of Animal Cruelty, the State must prove the following element beyond a reasonable doubt:

(Defendant) intentionally committed an act to an animal which resulted in [the excessive or repeated infliction of unnecessary pain or suffering to an animal] [an animal’s cruel death].

Definition, if cruel death charged. § 828.02, Fla. Stat.

“Cruelty” [“Torture”] [“Torment”] includes any act, omission, or negligence whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when done in the interest of medical science.

Only read definition for terms “Torture” or “Torment” when State seeks sentencing enhancements pursuant to § 828.12(2)(a), Fla. Stat.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008.

29.15 DISTURBING A SCHOOL, RELIGIOUS OR LAWFUL ASSEMBLY

871.01(1), Fla. Stat.

To prove the crime of Disturbing a [School] [Religious] [Lawful] Assembly, the State must prove beyond a reasonable doubt that:

Give a, b, or c as applicable.

(Defendant) willfully [interrupted] [disturbed]

a. a school assembly.
b. an assembly of people meeting for the purpose of worshiping God.
c. an assembly of people meeting for the lawful purpose of (insert lawful purpose).

Definition.

“Willfully” means knowingly, intentionally, and purposely.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

To commit an offense under § 871.01 a person must have deliberately acted to create a disturbance. That is, he must act with the intention that his behavior impedes the successful functioning of the assembly in which he has intervened, or with reckless disregard of the effect of his behavior. The acts complained of must be such that a reasonable person would ex-

pect them to be disruptive. Finally, the acts must, in fact, significantly disturb the assembly. These elements are inherent in the statute as drafted. See S.H.B. v. State, 355 So.2d 1176, 1178 (Fla.1977).

This instruction was adopted in 2008.

29.16 DISTURBING A MILITARY FUNERAL

871.01(2), Fla. Stat.

To prove the crime of Disturbing a Military Funeral, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) willfully [interrupted] [disturbed] an assembly of people meeting for the purpose of acknowledging the death of an individual.

2. The deceased individual was a member of the armed forces of the United States.

3. The assembly was attended by a military funeral honors detail.

Definition.

“Willfully” means knowingly, intentionally and purposely.

A “military funeral honors detail” consists of at least two persons from the armed forces in proper uniform, at least one of whom was from the deceased’s branch of the military, and the funeral ceremony includes the playing of “Taps,” followed by the folding and presentation of the United States flag to the family of the deceased.

Lesser Included Offenses

Disturbing a Military Funeral — 871.01(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Disturbing a school, religious None 871.01(1) 29.15 or lawful assembly

Comment

See Title 10 U.S.C. § 1491 for further details.

To commit an offense under § 871.02 a person must have deliberately acted to create a disturbance. That is, he must act with the intention that his behavior impedes the successful functioning of the assembly in which he has intervened, or with reckless disregard of the effect of his behavior. The acts complained of must be such that a reasonable person would expect them to be disruptive. Finally, the acts must, in fact, significantly disturb the assembly. These elements are inherent in the statute as drafted. See S.H.B. v. State, 355 So.2d 1176, 1178 (Fla.1977).

This instruction was adopted in 2008.

      . The Committee originally proposed sixteen new or amended instructions. Leave to withdraw proposed new instructions 28.82 (Aggravated Fleeing and Eluding), 28.84 (Aggravated Fleeing and Eluding), and 29.13(a) (Animal Cruelty (Misdemeanor)) was granted. The Committee resubmitted instructions 28.82 and 28.84, which the Court authorized for publication and use. See In re Standard Jury Instructions in Criminal Cases—Report No. 2007-9, 973 So.2d 432 (2008).

      . 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/juryJ.nstructions/ 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.

      . Even with the narrow construction given by the majority in S.H.B., three justices dissented, with two justices writing separate dissents, concluding that the statute was unconstitutional on its face. S.H.B., 355 So.2d at 1179-81 (England and Hatchett, JJ., dissenting).