author: PER CURIAM. CANADY, C.J.,

text:
    Robert GORDON, Appellant, v. STATE of Florida, Appellee.
    No. SC10-541.
    Supreme Court of Florida.
    Oct. 6, 2011.
    Bjorn E. Brunvand, P.A., Clearwater, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine Vickers Blan-co, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Robert Gordon, a prisoner under sentence of death, appealed from a circuit court order denying postconviction relief in this capital case. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Prior to the filing of the initial brief, Gordon filed a motion to discharge appellate counsel and proceed pro se in this appeal from the denial of his successive motion for postcon-viction relief. His appellate counsel has filed a motion for leave to withdraw as counsel for appellant. For the reasons set forth below, both motions are hereby denied.

We issue this interlocutory opinion in order to set forth the Court’s procedure regarding the issue of pro se representation by appellants in capital postconviction appeals. Just as we previously held as to direct appeals in capital cases in Davis v. State, 789 So.2d 978, 979 (Fla.2001), we hold that death-sentenced appellants may not proceed pro se in any postconviction appeals.

Gordon, who was granted leave to appear pro se in the successive postconviction proceeding in circuit court, filed a pro se notice of appeal from the summary denial of relief in this Court. We temporarily relinquished jurisdiction for the trial court to offer appointed appellate counsel to Gordon, and counsel was then appointed to represent him in this appeal. Shortly before the initial brief was to be filed in this Court, Gordon filed a motion to discharge counsel and represent himself in this postconviction appeal. An order was entered directing appellate counsel to file a response to Gordon’s motion, and counsel responded with a motion for leave to withdraw. We now address the issue of whether Gordon has a constitutional right to appear pro se in this appeal and, even if he does not, whether we should allow him to do so.

We previously held in Davis that a prisoner under sentence of death has no constitutional right to represent himself in the direct appeal of his conviction and sentence. See Davis, 789 So.2d at 979-80. There, we explained:

The Supreme Court recently clarified that a convicted defendant does not have a federal constitutional right of self-representation on an initial appeal of right. See Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). At issue in Martinez was a California appellate court’s denial of appellant Martinez’s pro se motion to discharge his appellate counsel and proceed pro se. See id. at 155, 120 S.Ct. 684. The Court affirmed the California court, explaining that the rationale underlying the Faretta decision, and hence the Sixth Amendment itself, did not apply to appellate proceedings. See id. at 160-61, 120 S.Ct. 684. The Court then indicated that if there is any such right of self-representation in appellate proceedings, such a right would have to be grounded in the Due Process Clause. See id. at 161, 120 S.Ct. 684. The Court then dismissed that notion, writing, “we are entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a constitutional right of self-representation is a necessary component of a fair appellate proceeding.” Id.
The Court in Martinez left to the States the ability to find a right of self-representation on appeal under the state constitution. See Martinez, 528 U.S. at 163, 120 S.Ct. 684- Regarding the existence of such a state constitutional right, we previously have rejected requests by appellants sentenced to death to conduct their own direct appeal and, in doing so, implicitly acknowledged that no such right exists in Florida. See Klokoc v. State, 589 So.2d 219, 221-22 (Fla.1991). We make that practice explicit today, holding that in Florida there is no state constitutional right to proceed pro se in direct appeals in capital cases.

Id. at 980-81. Based on the authorities cited, including the United States Supreme Court’s holding that there is no federal constitutional right to proceed pro se on appeal, we concluded in Davis that there is also no state constitutional right to self-representation on direct appeal. See id. Thus, “[t]he decision to allow a convicted defendant the ability to proceed pro se in appellate proceedings is vested in the sound discretion of the appellate court.” Id. at 981. Exercising our sound discretion, we held in Davis that death-sentenced appellants may not appear pro se in direct appeal proceedings. See id. For the same reasons expressed in Davis, and based on the same authorities, we conclude that death-sentenced appellants do not have a federal or state constitutional right to proceed pro se in appeals from postcon-viction proceedings. We also exercise our sound discretion and make explicit our holding that Gordon and other death-sentenced appellants may not appear pro se in any postconviction appeals.

We recognize that “we have a constitutional responsibility to ensure the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the postconviction process.” Arbelaez v. Butterworth, 738 So.2d 326, 326-27 (Fla.1999); see also Fla. Dep’t of Corrections v. Watts, 800 So.2d 225, 232-33 (Fla.2001) (same) (quoting Arbelaez, 738 So.2d at 326-27). This responsibility arises in part from the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). These principles are best served in the capital postconviction appellate context when death-sentenced appellants are represented by counsel. As Justice Anstead pointed out in his special concurrence in Arbelaez, “we have in fact consistently refused to permit a death-sentenced defendant to be executed without attorney-assisted collateral review of the original trial proceedings.” 738 So.2d at 329 (Anstead, J., specially concurring). Justice Anstead’s further observations in Arbelaez are also appropriate considerations in the question now before the Court, which is whether to require counsel in postconviction appeals. He noted in Arbelaez:

This Court has also recognized that “since the state of Florida enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases,” White v. Board of County Comm’rs, 537 So.2d 1376, 1379 (Fla.1989), and that “all capital cases by their very nature can be considered extraordinary and unusual.” Id. at 1378. This Court has recognized the crucial role of counsel at all levels of capital proceedings:
However, the basic requirement of due process in our adversarial legal system is that a defendant be represented in court, at every level, by an advocate who represents his client zealously within the bounds of the law. Every attorney in Florida has taken an oath to do so and we will not lightly forgive a breach of this professional duty in any case; in a case involving the death penalty it is the very foundation of justice.
Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla.1985).

Id. at 330 n. 10. Justice Anstead’s observations in Arbelaez concerning the complexity of postconviction proceedings, the limited nature of the resources available to death row inmates, and the fact that counsel helps to ensure the quality of the review and our confidence in the outcome, apply equally to death row inmates attempting to present their own postconviction appeals. See id. at 331-32. These same considerations and concerns support our conclusion that both the death-sentenced defendant and the justice system are best served by the requirement that capital defendants be represented by counsel in all postconviction appeals.

Based on our solemn duty to ensure that the death penalty is imposed in a fair, consistent, and reliable manner — as well as our administrative responsibility to work to minimize the delays inherent in the postconviction process — we hold that death-sentenced appellants may not appear pro se in postconviction appeals. Accordingly, Gordon’s motion to discharge counsel and appear pro se and appellate counsel’s motion for leave to withdraw are denied.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, C.J.,

dissenting.

This is Mr. Gordon’s case, and it is a ease in which Mr. Gordon’s life is at stake. I would not presume to impose postconviction appeal counsel on Mr. Gordon if he has made a knowing, informed, and voluntary choice to repudiate that counsel.

It is true that appellants in direct criminal appeals do not have the right to proceed pro se. But there is one very important difference between direct appeals and postconviction appeals: a remedy is available for the ineffective assistance of appellate counsel in direct appeals, but no such remedy is available with respect to post-conviction appellate counsel. Even if there is no constitutional right for a prisoner under sentence of death to proceed pro se in a postconviction appellate proceeding, I conclude that it is an unwise and unfair policy to saddle such a litigant with counsel against his wishes — particularly when the litigant is without any meaningful remedy for the ineffective assistance of counsel.

Accordingly, I would relinquish Gordon’s motion to the trial court to determine whether he has made a fully informed and voluntary waiver of counsel.

POLSTON, J., concurs.

      . The State did not file a response to Gordon’s motion to discharge counsel and proceed pro se, or to counsel’s motion to withdraw.

      . Gordon also moved to strike the appeal, which we understand to mean strike any briefs that have been filed. However, the briefs have not been filed in this case and Gordon's motion to strike the brief is moot. A briefing schedule for the parties will be issued by separate order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION AND the FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC11-528.
    Supreme Court of Florida.
    Oct. 6, 2011.
    Keith H. Park, Chair, Rules of Judicial Administration Committee, West Palm Beach, FL, and Steven P. Combs, Past Chair, Jacksonville, FL; Ashley J. McCor-vey Myers, Chair, Family Law Rules Committee, Jacksonville, FL, Katherine E. Giddings, Past Chair, Tallahassee, FL; and John F. Harkness, Jr., Executive Director, Ellen H. Sloyer Bar Liaison, and Jodi Beth Jennings, Bar Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration proposed amendments to Florida Rule of Judicial Administration 2.545(d)(2) (Related Cases; Family Cases) and Florida Family Law Rule of Procedure 12.010(a)(1) (Scope). We have jurisdiction and adopt the amendments as proposed.

At the request of the Court, the Rules of Judicial Administration Committee and the Family Law Rules Committee (rule committees) proposed the rule amendments to implement recommendations of the Steering Committee on Families and Children in the Court (Steering Committee) concerning the definition of family law cases. See Steering Committee on Families and Children in the Court, End of Term Report 2008-2010, 9-11 (2010) (recommending rule amendments to add actions for “temporary or concurrent custody of minor children by extended family,” under chapter 751, Fla. Stat. (2010), to definition of family law cases and scope of family law rules). The proposed amendments were approved by the Executive Committee of The Florida Bar Board of Governors by a vote of 8-0. The Court published the proposals for comment and no comments were filed.

As proposed by the rules committees and consistent with the Steering Committee’s recommendations, we add “proceedings for temporary or concurrent custody of minor children by extended family” to the rule 2.545(d)(2) definition of “family cases.” We also add that language to the rule 12.010(a)(1) list of actions to which the family law rules apply.

Accordingly, we amend the Florida Rules of Judicial Administration and the Florida Family Law Rules of Procedure, as reflected in the appendix to this opinion. New language is underscored. These amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

APPENDIX

RULE 2.545. CASE MANAGEMENT

(a)-(c) [No Change]

(d) Related Cases.

(1) [No Change]

(2) “Family cases” include dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, UIFSA, custodial care of and access to children, proceedings for temporary or concurrent custody of minor children by extended family, adoption, name change, declaratory judgment actions related to premarital, marital, or postmarital agreements, civil domestic, repeat violence, dating violence, and sexual violence injunctions, juvenile dependency, termination of parental rights, juvenile delinquency, emancipation of a minor, CINS/ FINS, truancy, and modification and enforcement of orders entered in these cases.

(3)-(7) [No Change]

(e) [No Change]

Committee Notes

[No Change]

RULE 12.010. SCOPE, PURPOSE, AND TITLE

(a) Scope.

(1) These rules apply to all actions concerning family matters, including actions concerning domestic, repeat, dating, and sexual violence, except as otherwise provided by the Florida Rules of Juvenile Procedure or the Florida Probate Rules. “Family matters,” “family law matters,” or “family law cases” as used within these rules include, but are not limited to, matters arising from dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, an action involving a parenting plan for a minor child or children (except as otherwise provided by the Florida Rules of Juvenile Procedure), proceedings for temporary or concurrent custody of minor children by extended family, adoption, proceedings for emancipation of a minor, declaratory judgment actions related to premarital, marital, or post-marital agreements (except as otherwise provided, when applicable, by the Florida Probate Rules), injunctions for domestic, repeat, dating, and sexual violence, and all proceedings for modification, enforcement, and civil contempt of these actions.

(2) [No Change]

(b)-(c) [No Change]

      . See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(f).


author: CANADY, C.J.,

text:
    Derrick Tyrone SMITH, Appellant(s) v. STATE of Florida, Appellee(s).
    No. SC09-2063.
    Supreme Court of Florida.
    Oct. 6, 2011.
   Derrick Smith, a defendant under sentence of death, appeals from the circuit court’s summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. Previously, we affirmed Smith’s conviction and sentence of death after retrial, Smith v. State, 641 So.2d 1319 (Fla.1994), and the circuit court’s denial of Smith’s initial motion for postconviction relief. Smith v. State, 931 So.2d 790 (Fla.2006). As explained below, we reverse and remand this case to the postconviction court for further proceedings.

The postconviction court summarily denied Smith’s allegations that (1) letters from the Federal Bureau of Investigation regarding expert testimony on comparative bullet lead analysis offered at his retrial constituted newly discovered evidence and (2) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose information regarding trial witness Priscilla Walker. We find these claims to be sufficiently pleaded to warrant an eviden-tiary hearing. Accordingly, we reverse and remand this case to the postconviction court for an evidentiary hearing on these two claims.

Further, shortly before Smith filed his notice of appeal, the United States Court of Appeals for the Eleventh Circuit, in reviewing Smith’s federal habeas petition, disagreed with some of this Court’s findings in Smith’s initial postconviction appeal and determined that six Brady claims “involve[d] favorable [undisclosed] evidence that was actually suppressed.” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1348 (11th Cir.2009). The court held that these claims needed to be considered in a “cumulative materiality analysis” under Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Smith, 572 F.3d at 1342. These claims are as follows:

(1) Melvin Jones sought help from the prosecutor with the probation violation and grand theft charges against him; (2) Melvin Jones, fearing arrest, sought help from the prosecutor in regard to the sexual abuse allegations his daughter was making against him; (3) one or more police reports indicated that Melvin Jones had initially been considered as a suspect in 1983; (4) a prosecutor’s synopsis of an interview of David McGruder and some police reports cast doubt on McGruder’s identification of Smith; (5) a prosecutor’s note indicated that Jones and Johnson had met briefly in a holding cell before the 1983 trial; and (6) several reports showed that Priscilla Walker’s statement to the police about when Smith was at her house conflicted with statements by others about where he was during that time.

Id., 572 F.3d at 1348. In light of the Eleventh Circuit’s findings, we direct that on remand the circuit court consider these claims in its analysis.

Accordingly, we reverse the court’s order summarily denying relief and remand this case to the circuit court for further proceedings.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

QUINCE, J., recused.

CANADY, C.J.,

concurring in part and dissenting in part.

I agree with the decision to remand for an evidentiary hearing on the newly discovered evidence claim regarding the comparative bullet lead evidence. I dissent, however, from the decision to remand the Brady claim related to Priscilla Walker. Because that claim is procedurally barred, I would affirm its denial by the postconviction court. Florida Rule of Criminal Procedure 3.851(d)(2)(A) provides that “no motion” filed beyond the one-year time limitation will be considered unless it alleges “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence.” See Jimenez v. State, 997 So.2d 1056, 1064 (Fla.2009). Smith’s motion— which was filed beyond the one-year time limitation — did not allege due diligence and thus did not satisfy the basic pleading requirements to overcome the rule’s procedural bar.

POLSTON, J., concurs.


author: PER CURIAM. POLSTON, J.,

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2011-02.
    No. SC11-463.
    Supreme Court of Florida.
    Oct. 13, 2011.
    Judge Samantha L. Ward, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has filed a report in which it proposes amending standard criminal jury instruction 16.3, Child Abuse, and asks the Court to authorize the amended instruction for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending instruction 16.3 to add the following: (1) that the defendant “knowingly or willfully” committed the abuse; (2) the parental affirmative defense; (3) language putting the trial court on notice that it is unclear who bears the burden of persuasion regarding the affirmative defense; (4) the statutory definition of “mental injury”; and (5) the crimes of “contributing to the dependency of a minor” and “battery” to the list of lesser-included offenses to child abuse. A Minority Report was also filed, which provided the Court with alternative options for the instruction.

The Committee published its final proposal in the January 15, 2011, edition of The Florida Bar News. Upon consideration of the proposals and the comments received by the Committee, we hereby authorize for publication and use instruction 16.3 as amended in proposals 1, 2, 3, and 5.

The Committee’s fourth proposal is to amend the instruction to include only the statutory definition of “mental injury,” which is found in section 39.01(42), Florida Statutes (2010). The Minority Report, by contrast, urges that the statutory definitions from chapter 39, Florida Statutes, for “abuse,” “harm,” “physical injury,” “mental injury,” and “legal custody” should be added to the instruction, based on this Court’s decision in DuFresne v. State, 826 So.2d 272 (Fla.2002). After consideration of the Committee’s proposal and the Minority Report’s alternative suggestion as to this issue, we revise instruction 16.3 to include the chapter 39 statutory definitions for “abuse,” “harm,” “physical injury,” “mental injury,” and “legal custody” as suggested in the Minority Report.

Revised instruction 16.3, which appears in the attached appendix, is authorized for publication and use. We express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instruction. We further caution all interested parties that any notes and comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to its correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instruction as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY, C.J., concurs.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s authorization for publication and use of instruction 16.3 as amended in proposals 1 and 5. Because of disagreements between a majority of the Committee and a minority of its members and various other commentators, as described by the Minority Report and comments filed with the Court, I respectfully dissent from the majority’s rulings on proposals 2, 3, and 4.

CANADY, C.J., concurs.

APPENDIX

16.3 CHILD ABUSE

§ 827.03(1), Fla. Stat.

To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly or willfully:

Give as applicable.
a. intentionally inflicted [physical][or] [mental] injury upon (victim).
b. committed an intentional act that could reasonably be expected to result in [physical] [or] [mental] injury to (victim).
c. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in [physical] [or] [mental] injury to (victim).

2. (Victim) was under the age of 18 years.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So.2d 1012 (Fla.2002).

§ 827.OS Fla. Stat. and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that t once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), for further guidance.

It is not a crime for [a parent] [a person who is acting as the lawful guardian] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline. (Insert appropriate burden of persuasion to appropriate party.)

Definitions, give as applicable.

§ S9.01 (2), Florida Statutes.

“Abuse” means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. [Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.]

§ 39.01(32), Florida Statutes.

“Harm” means (insert specific allegation included from this subsection of the statute charged in the indictment or information).

§ 39.01(56), Florida Statutes.

“Physical injury” means death, permanent or temporary disfigurement, or impairment of any bodily part.

§ 39.01(4-2), Florida Statutes.

“Mental injury” means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.

Note to Judge. See § 39.01(19), Florida Statutes, if the defendant’s status as a parent is at issue.

§ 39.01(35), Florida Statutes. (Give only when the guardian is not a parent).

“Legal custody” means a legal status created by a a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide [him][her] with food, shelter, education and ordinary medical, dental, psychiatric, and psychological care.

Comment

See Raford v. State, 828 So.2d 1012 (Fla.2002), and DuFresne v. State, 826 So.2d 272 (Fla.2002), for authority to incorporate definitions from Chapter 39, Florida Statutes.

This instruction was adopted in 1981 and amended in 1985,1989, and 2002, and 2011.

      . See Raford v. State, 828 So.2d 1012, 1020 (Fla.2002) (recognizing that where a parent is charged with the crime of child abuse, the parent "may assert as an affirmative defense his or her parental right to administer ‘reasonable’ or ‘nonexcessive’ corporal punishment").

      . The Committee initially published a proposal in the June 15, 2010, edition of The Florida Bar News. Three comments were received. The Committee published, a revised proposal on November 1, 2010, and one comment was received. In response to that comment, the Committee again revised the proposal, and on January 15, 2011, the Committee published the proposal now before the Court.

      .The Minority Report's suggestion also includes a note directing the trial judge to section 39.01(49), Florida Statutes, when the definition of "parent” is relevant.

      . According to the Minority Report, DuFresne recognized that the provisions of chapter 39 and section 827.03, Florida Statutes, should be read in proper relation to one another. Therefore, the minority believes that several chapter 39 definitions should be used in the jury instruction for section 827.03.

      . 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/juty_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


text:
    In re AMENDMENTS TO STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—INSTRUCTION 7.7.
    No. SC10-113.
    Supreme Court of Florida.
    Oct. 13, 2011.
    Judge Lisa T. Munyon, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases Committee, Ninth Judicial Circuit, Orlando, FL, for Petitioner.
    Bart Schneider, Lake Mary, FL; Richard M. Summa, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, Charmaine M. Millsaps, Tallahassee, FL, and Michael T. Kennett, Tallahassee, FL, Responding with comments.
   PER CURIAM.

On the Court’s own motion, we previously amended instruction 7.7 (Manslaughter) of the Standard Jury Instructions in Criminal Cases on an interim basis and then published the amended instruction for public comment. In re Amends. to Std. Jury Instrs., 41 So.3d 853 (Fla.2010). Having reviewed the comment and response from the Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee), as well as the comments filed by individual members of The Florida Bar, and having heard oral argument, we now further amend the language of the instruction to clarify that it requires an intentional act not constituting negligence.

Accordingly, we authorize for publication and use instruction 7.7 as set forth in the appendix to this opinion. The instruction is effective immediately. New language is indicated by underlining, and deleted language is struck through. In authorizing the publication and use of the instruction, we express no opinion on its correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that any comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

It is so ordered.

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

APPENDIX

7.7 MANSLAUGHTER

§ 782.07, Fla. Stat.

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

1. (Victim) is dead.

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

2. a. (Defendants) intentionally committed an act(s> or acts that caused the death of (victim).
b. (Defendant) intentionally procured an act that caused the death of (victim).
c. The death of (victim) was caused by the culpable negligence of (defendant).

The defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide:

Negligence:

Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

Justifiable Homicide:

The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. § 782.02, Fla. Stat.

Excusable Homicide:

The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

§ 782.03, Fla. Stat.

Give only if 2a alleged and proved, and manslaughter-is-being defined as-cir-lesser included-ojfense-of first degree premeditated murder?

In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justifiedi or excusable and which caused death.

Give only if 2b alleged and proved.

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

Give only if 2c alleged and proved.

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

§ 782.07(2)-(f), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable.

If you find the defendant guilty of manslaughter, you must then determine whether the State has further proved beyond a reasonable doubt that:

a. (Victim) was at the time [an elderly person] [a disabled adult] whose death was caused by the neglect of (defendant), a caregiver.
b. (Victim) was a child whose death was caused by the neglect of (defendant), a caregiver.
c. (Victim) was at the time [an officer] [a firefighter] [an emergency medical technician] [a paramedic] who was at the time performing duties that were within the course of [his][her] employment. The court now instructs you that (official title of victim) is [an officer] [a firefighter] [an emergency medical technician] [a paramedic].

Definitions. Give if applicable.

“Child” means any person under the age of 18 years.

§ 782.03, Fla. Stat.

“Dangerous weapon” is any weapon that, taking into account the manner in which it was used, is likely to produce death or great bodily harm.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age, organic brain damage, or physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the persons own care or protection is impaired.

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the persons ability to perform the normal activities of daily living.

“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

As applied to an Elderly Person or a Disabled Adult.

“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or a disabled adult. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.

As applied to a Child.

“Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

§ 825.102(3)(a) or § 827.03(3)(a), Fla. Stat. Give 1 or 2 as applicable.

“Neglect of [a child”] [an elderly person”] [a disabled adult”] means:

1. A caregiver’s failure or omission to provide [a child] [an elderly person] [a disabled adult] with the care, supervision, and services necessary to maintain [a child’s] [an elderly person’s] [a disabled adult’s] physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [child] [elderly person] [disabled adult];
or
2. A caregiver’s failure to make reasonable effort to protect [a child] [an elderly person] [a disabled adult] from abuse, neglect or exploitation by another person.

Repeated conduct or a single incident or omission by a caregiver that results in, or could reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a disabled adult] may be considered in determining neglect.

Definitions. As applied to Designated Personnel.

§ 112.191 and § 633.35, Fla. Stat.

“Firefighter” means any full-time duly employed uniformed firefighter employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property therefrom, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertaining to the prevention and control of fires, who is certified by the Division of State Fire Marshal of the Department of Financial Services, who is a member of a duly constituted fire department of such employer or who is a volunteer firefighter.

§ 94.8.10(14), Fla. Stat.

“Officer” means any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, or correctional probation officer.

§ 401.23, Fla. Stat.

“Emergency Medical Technician” means a person who is certified by the Department of Health to perform basic life support.

§ 401.23, Fla. Stat.

“Paramedic” means a person who is certified by the Department of Health to perform basic and advanced life support.

Lesser Included Offenses

Comment

In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable homicide as previously given should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla.1965).

In appropriate cases, an instruction on transferred intent should be given.

Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla.1999), in any manslaughter case in which causation is an issue to determine if a special jury instruction on causation is needed.

To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included offenses require proof of knowing that the commission of the offense was on an officer who was engaged in the lawful performance of a legal duty.

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], 2006 [946 So.2d 1061], 2008 [997 So.2d 403], and 2010 [41 So.3d 853], and 2011.

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

      . The amendments as reflected in the appendix are to the instructions as they appear on the Court's website at www.floridasupreme court.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


text:
    THE FLORIDA BAR, Complainant(s) v. George Murray HUDSON, Respondent(s).
    No. SC10-329.
    Supreme Court of Florida.
    Oct. 13, 2011.
   The report of the referee is approved and George Murray Hudson is reinstated effective immediately under the terms and conditions set forth in the report.

Each party shall bear its own costs.

The filing of a motion for rehearing shall not alter the effective date of this reinstatement.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., dissents with an opinion, in which LEWIS and POLSTON, JJ., concur.

CANADY, C.J.,

dissenting.

On August 16, 2005, petitioner George Murray Hudson was voluntarily placed on the inactive list of The Florida Bar for incapacity unrelated to misconduct. At that time, Hudson was under a three-year term of probation for a prior disciplinary offense. Because the record shows that Hudson committed acts constituting disqualifying conduct, contradicts the referee’s finding that Hudson “has not been financially irresponsible during his inactive period,” and does not contain clear and convincing evidence that Hudson has been rehabilitated, I would disapprove the referee’s recommendation and dismiss Hudson’s petition for reinstatement.

“A petitioner seeking reinstatement to The Florida Bar must establish by clear and convincing evidence that he has met the criteria set forth in Rule Regulating the Florida Bar 3-7.10, Reinstatement and Readmission Procedures,’ and the decisions of this Court.” Fla. Bar re McGraw, 903 So.2d 905, 909 (Fla.2005). “In determining the fitness of the petitioner to resume the practice of law, the referee shall consider whether the petitioner has engaged in any disqualifying conduct, the character and fitness of the petitioner, and whether the petitioner has been rehabilitated .... ” R. Regulating Fla. Bar 3-7.10(f). “A record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a basis for denial of reinstatement.” R. Regulating Fla. Bar 3 — 7.10(f)(1). The rule specifically provides that “unlawful conduct” and “financial irresponsibility” constitute disqualifying conduct. R. Regulating Fla. Bar 3-7.10(f)(l)(A), (G).

At the hearing before the referee, Hudson admitted that he did not file income tax returns for the years 2007 and 2008 until early 2010, when he filed the returns “in conjunction with the filing of [his] petition” for reinstatement. Hudson further admitted that he knew he had an obligation to file his tax returns each year and that he failed to timely file the returns because he “knew [he] did not have the money to pay” what he owed to the federal government. Hudson did not offer an explanation of why he did not seek a filing extension or a payment plan at the time the taxes became due. Hudson also did not assert that he was exempt from filing a tax return during the relevant years.

Hudson’s willful failure to file income tax returns for the years 2007 and 2008 is affirmative evidence of both unlawful conduct and financial irresponsibility. Willful failure to file a tax return is a misdemean- or offense, see 26 U.S.C.A. § 7203 (2011), and the comment to Rule Regulating the Florida Bar 4-8.4 expressly notes that the “willful failure to file an income tax return” is “illegal conduct [that] reflects] adversely on fitness to practice law.” Contrary to the referee’s determination, Hudson’s willful disregard of his obligation to file income tax returns is disqualifying conduct. This flouting of the federal income tax law is serious misconduct which should preclude Hudson’s reinstatement until he has demonstrated rehabilitation.

Hudson’s disregard of his obligation to file his tax returns is part of a pattern of misconduct. In June 2005, this Court imposed upon Hudson a three-year period of probation for misconduct. In June 2008, he was found guilty of minor misconduct and served jail time for an incident of “road rage” that occurred in April 2006. Hudson thus was subject to discipline just prior to voluntarily accepting inactive status and then continued to engage in a pattern of misconduct — some of which rises to the level of criminal behavior — once being declared inactive. In addition to denying reinstatement at this time, I would impose the condition that Hudson not again petition for reinstatement for at least three years from the date of this Court’s decision.

The Florida Bar has correctly sought to prevent the reinstatement of this lawyer, who has demonstrated contempt for the law. It does damage to the credibility of The Florida Bar to reinstate a lawyer who has so recently flouted the federal income tax law and has otherwise shown a disregard for the requirements of the law. I therefore dissent.

LEWIS and POLSTON, JJ„ concur.


text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC11-1567.
    Supreme Court of Florida.
    Oct. 20, 2011.
    Joel M. Silvershein, Chair, Juvenile Court Rules Committee, Fort Lauderdale, FL; John F. Harkness, Jr., Executive Director, and Ellen H. Sloyer, Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Juvenile Court Rules Committee (Committee) has filed an out-of-cycle, fast-track report of proposed amendments to the Florida Rules of Juvenile Procedure that conform the rules and forms to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

The Committee proposes amendments to rules 8.820 (Hearing), and 8.825 (Order and Judgment), and forms 8.947 (Disposition Order — Delinquency), 8.987 (Petition for Judicial Waiver of Parental Notification of Termination of Pregnancy), and 8.990 (Final Order Granting Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). The Committee also proposes new rule 8.840 (Remand of Proceedings), and replacing existing form 8.992 (Clerk’s Certificate Pursuant to Section 390.01114(4)(b), Florida Statutes) with new form 8.992 (Minor’s Petition to Chief Judge to Require a Hearing on Her Petition for Judicial Waiver of Notice). The proposals are in response to recent amendments to sections 39.01114(4), 985.47, and 985.441, Florida Statutes (2010). See ch.2011-54, § 1, Laws of Fla. (amending § 985.441, Fla. Stat.); eh.2011-70, § 4, Laws of Fla. (amending § 985.47, Fla. Stat.); ch.2011-227, § 1, Laws of Fla. (amending § 39.01114(4), Fla. Stat.). The amendments to sections 985.47 and 985.441 became effective July 1, 2011. See ch.2011-54, § 5, Laws of Fla.; ch.2011-70, § 15, Laws of Fla. The amendments to section 390.01114(4) became effective October 1, 2011. See ch.2011-227, § 3, Laws of Fla. The Executive Committee of the Florida Bar Board of Governors approved the proposals by a vote of 11-0.

After considering the Committee’s proposals and reviewing the relevant legislation, we adopt the proposed amendments, with a modification to the amendments to form 8.990 (Final Order Granting Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). The amendments to form 8.990 implement amendments to section 390.01114(4), Florida Statutes, made by chapter 2011-227, section 1, Laws of Florida. The Committee proposes that the lead-in paragraph in the form for the list of factors the court must consider, under amended section 390.01114(4)(c), in determining whether a minor is sufficiently mature to decide whether to terminate her pregnancy provide:

The court has considered the following factors in reaching this decision that notification of a parent or guardian is not in the best interest of the minor and makes the following findings:
The minor’s age is.
The minor’s overall intelligence indicates .
The minor’s emotional development and stability indicates.
The minor’s credibility and demeanor as a witness indicate .
The minor’s ability to accept responsibility is demonstrated by.
The minor’s ability to assess both the immediate and long-range consequences of the minor’s choices is demonstrated by.
The minor’s ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision is indicated by.
Whether there may be any undue influence by another on the minor’s decision to have an abortion .

(Emphasis added.) Because the factors being added to the form must be considered in connection with a maturity finding, under section 390.01114(4)(c), rather than a best interests finding, under section 390.01114(4)(d), we modify the new paragraph to read:

The court has considered the following factors in reaching this decision that the minor is sufficiently mature to decide whether to terminate her pregnancy and makes the following findings:

Accordingly, we amend the Florida Rules of Juvenile Procedure as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. These amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 8.820. HEARING

(a)-(b) [No Change]

(c) Burdens of Proof.

(1) A finding that the minor is sufficiently mature to decide whether to terminate her pregnancy requires proof by clear and convincing evidence.
(2) A finding that the minor is a victim of child abuse or sexual abuse inflicted by one or both of her parents or a guardian requires proof by a preponderance of the evidence.
(3) A finding that notification of a parent or guardian is not in the best interest of the minor requires proof by a preponderance of the clear and convincing evidence.

(d) Time Limits. As provided by section 390.01114(4)(b), Florida Statutes:

(1)Cases commenced under this rule take precedence over other pending matters as necessary to ensure that the court can make its ruling and issue written findings of fact and conclusions of law within 48 hour-s3 business days of the filing of the petition. The term “48 hours” as used in this section means exactly 48 hours from the filing of the petition and specifically-includes weekends — holidays'and times after regular business hour-s-of the court.
(2) The 48-hour3-business-day time limit may be extended at the request of the minor; however, the court remains under an obligation to rule on the petition as soon as practically possible.
(3) If the court fails to rule within the 48-hour3-business-day period and an extension has not been requested by the minor, the petition shall — be- deemed gr-anted and-the clerk shall- issue the minor-a certificate-indieating the notice requirement is- waived-pur-suant to [section] 390.01114(4)^)⅜ Florida- Statutes the minor may immediately thereafter petition the chief judge of the circuit for a hearing. The chief judge must ensure that a hearing is held within 48 hours after receipt of the minor’s petition, and an order is entered within 24 hours after the hearing.

(e)[No Change]

RULE 8.825. ORDER AND JUDGMENT

At the conclusion of the hearing, the court shall issue written and specific findings of fact and conclusions of law in support of its decision, including findings of fact and conclusions of law relating to the maturity of the minor, and order that a confidential record be maintained.

RULE 8.840. REMAND OF PROCEEDINGS

In the event the minor appeals a determination by the circuit court under these rules and the appellate court remands the matter to the trial court, the trial court must enter its ruling within 3 business days after the remand.

      . An original and nine paper copies of all comments must be filed with the Court on or before December 19, 2011, with a certificate of service verifying that a copy has been served on the committee chair, Joel Michael Silvershein, 201 SE 6th Street Suite 660, Fort Lauderdale, Florida 33301-3334, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until January 9, 2012, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    Willie JAMES, Petitioner, v. Kenneth S. TUCKER, etc., Respondent.
    No. SC11-745.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Willie James, Florida City, FL, pro se, for Petitioner.
    Jennifer A. Parker, General Counsel, Florida Department of Corrections, Tallahassee, FL, for Respondent.
   PER CURIAM.

Willie James, an inmate in state custody, filed a pro se petition for writ of habeas corpus with this Court seeking relief from an allegedly illegal sentence. We denied the petition in this case by way of an unpublished order, determining that it raised a repetitive claim addressed in a previous petition filed in this Court. See James v. McNeil, No. SC10-2045, 2011 WL 386820 (Fla. Jan. 31, 2011). However, in disposing of the petition in this case, we expressly retained jurisdiction to pursue possible sanctions against James. See Fla. R.App. P. 9.410(a).

James was tried, convicted, and sentenced for committing robbery in Broward County, Florida (17th Judicial Circuit Court Case No. 93-13851-CF10A). Because the trial court determined that James qualified as a habitual felony offender (HFO), on September 30, 1993, it imposed the sixty-year sentence that James is presently serving. In the decades since his criminal case became final, James has unsuccessfully used numerous vehicles in the state courts attempting to obtain relief from what he believes is an illegally enhanced sentence. However, it is patently evident from the record before this Court that James’s sixty-year sentence has been fully litigated in the appropriate courts below, to no avail for him.

Since 2007, James has filed multiple petitions with this Court seeking relief based on his illegal sentence claim. And in none of the petitions James filed in this Court, has any relief been granted to him concerning his sixty-year prison sentence. Because the petition filed in this case was wholly without merit, we issued an order directing James to show cause why he should not be prohibited from filing any further pro se filings related to case number 93-13851-CF10A. James’s response fails to show cause why he should not be sanctioned. Furthermore, based on the meritless claim presented by James, we conclude that the pro se petition filed in this case is a frivolous filing submitted to this Court by a state inmate. See § 944.279, Fla. Stat. (2010). We take notice that James has compiled a history of pro se filings that, like the instant petition, were devoid of merit or inappropriate for review in this Court.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Willie James that are related to circuit court case number 93-13851-CF10A, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on James’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, since we have found James’s petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2010), to forward a certified copy of this opinion to the Department of Corrections’ institution or facility where James is incarcerated.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . See James, No. SC10-2045 (habeas corpus petition denied as procedurally barred); James v. McNeil, 36 So.3d 84 (Fla. Apr. 23, 2010) (No. SC10-360) (habeas corpus petition denied as a repetitive petition); James v. State, 22 So.3d 538 (Fla. Sep. 3, 2009) (No. SC09-1017) (mandamus petition denied as procedurally barred); James v. State, 1 So.3d 172 (Fla. Jan. 8, 2009) (No. SC08-1769) (all writs petition dismissed for lack of jurisdiction); James v. McDonough, 973 So.2d 1121 (Fla. Dec. 11, 2007) (No. SC07-2209) (habeas corpus petition dismissed for lack of jurisdiction pursuant to Grate v. State, 750 So.2d 625 (Fla.1999)).

      . See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (“[I]t is important for courts to first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or conviction and sentence.”).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing scarce judicial resources in this Court. See, e.g., Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele, v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Tate v. McNeil, 983 So.2d 502 (Fla.2008).

      . See, e.g., Johnson, 59 So.3d at 1080; Steele, 14 So.3d at 221.


author: LABARGA, J.

text:
    Rodrigo BONILLA, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-141.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell and Andrew M. Stanton, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Natalia Costea, Assistant Attorney Generals, Miami, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We previously accepted jurisdiction in Montgomery and stayed proceedings in Bonilla pending disposition of Montgomery. In State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim. We then affirmed the district court’s reversal of Montgomery’s conviction for second-degree murder. We subsequently issued an order in Bonilla directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Montgomery.

Upon review of the parties’ responses and the decision below, we conclude that the district court’s reliance upon Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009), is inconsistent with our reasoning in Montgomery and our conclusion that the use of the erroneous manslaughter by act instruction constituted fundamental error that required reversal of Montgomery’s conviction for second-degree murder. Accordingly, we accept jurisdiction and grant the petition for review. The decision below is quashed, and this matter is remanded to the Third District Court of Appeal for reconsideration upon application of our decision in Montgomery.

It is so ordered.

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


text:
    Catalino BURGOS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. SC10-78.
    Supreme Court of Florida.
    Oct. 27, 2011.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Diana K. Bock, Assistant Attorneys General, Tampa, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Burgos v. State, 82 So.3d 130 (Fla. 2d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We previously accepted jurisdiction in Montgomery and stayed proceedings in Burgos pending disposition of Montgomery. In State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim. We then affirmed the district court’s reversal of Montgomery’s conviction for second-degree murder. We subsequently issued an order in Burgos directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Montgomery.

Upon review of the parties’ responses and the decision below, we conclude that the district court’s reliance upon Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009), is inconsistent with our reasoning in Montgomery and our conclusion that the use of the erroneous manslaughter by act instruction constituted fundamental error that required reversal of Montgomery’s conviction for second-degree murder. Accordingly, we accept jurisdiction and grant the petition for review. The decision below is quashed, and this matter is remanded to the Second District Court of Appeal for reconsideration upon application of our decision in Montgomery.

It is so ordered.

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


text:
    John VALDES-PINO, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-63.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, Leslie Scalley, Special Assistant Public Defender, Tampa, FL, and Andrew Stanton, Assistant Public Defender, Miami, FL, for Petitioner.
    Pamela, Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Forrest L. Andrews, Jr., Assistant Attorneys General, Miami, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in Valdes-Pino v. State, 23 So.3d 871 (Fla. 3d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We previously accepted jurisdiction in Montgomery and stayed proceedings in Valdes-Pino pending disposition of Montgomery. In State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim. We then affirmed the district court’s reversal of Montgomery’s conviction for second-degree murder. We subsequently issued an order in Valdes-Pino directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Montgomery.

Upon review of the parties’ responses and the decision below, we conclude that the district court’s reliance upon Zeigler v. State, 18 So.3d 1239 (Fla. 2d DGA 2009), is inconsistent with our reasoning in Montgomery and our conclusion that the use of the erroneous manslaughter by act instruction constituted fundamental error that required reversal of Montgomery’s conviction for second-degree murder. Accordingly, we accept jurisdiction and grant the petition for review. The decision below is quashed, and this matter is remanded to the Third District Court of Appeal for reconsideration upon application of our decision in Montgomery.

It is so ordered.

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


text:
    Merle Frances ZEIGLER, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2082.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Joseph- Cameron Bodiford of Bodiford Law, P.A., Tampa, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We previously accepted jurisdiction in Montgomery and stayed proceedings in Zeigler pending disposition of Montgomery. In State v. Montgomery, 39 So.3d 252 (Fla.2010), we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim. We then affirmed the district court’s reversal of Montgomery’s conviction for second-degree murder. We subsequently issued an order in Zeigler directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Montgomery.

Upon review of the parties’ responses and the decision below, we conclude that the district court’s reasoning in Zeigler is inconsistent with our reasoning in Montgomery and our conclusion that the use of the erroneous manslaughter by act instruction constituted fundamental error that required reversal of Montgomery’s conviction for second-degree murder. Accordingly, we accept jurisdiction and grant the petition for review. The decision below is quashed, and this matter is remanded to the Second District Court of Appeal for reconsideration upon application of our decision in Montgomery.

It is so ordered.

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


text:
    Romildo MEISTER, Petitioner, v. Elizardo RIVERO, et al., Respondents.
    No. SC10-2311.
    Supreme Court of Florida.
    Oct. 27, 2011.

      Lynn G. Waxman of Lynn G. Waxman, P.A., Palm Beach Gardens, FL, and Elliot Brooks of Young, Brooks and Pefka, P.A., West Palm Beach, FL, for Petitioner.
    Anne C. Sullivan and Alejandro Perez of Cole, Scott and Kissane, P.A., Miami, FL, and H. Michael Muniz of Jones and Valli-ere, P.A., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction under article V, section 3(b)(4), of the Florida Constitution to review Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010), a decision in which the Fourth District Court of Appeal certified the following question to be of great public importance:

DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 So.2d 221 (Fla. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCUR-RENCE OF ATTORNEYS’ FEES?

Rivero, 46 So.3d at 1164. Upon further consideration, we conclude that we should exercise our discretion and decline review. Accordingly, this review proceeding is dismissed.

It is so ordered.

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


text:
    Davon FRANCIS, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1881.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Linda S. Katz, Assistant Attorneys General, Miami, FL, for Respondent.
   LABARGA, J.

We have for review Francis v. State, 22 So.3d 788 (Fla. 3d DCA 2009), in which the Third District Court of Appeal cited as controlling authority the Second District Court of Appeal’s decision in Zeigler v. State, 18 So.3d 1239 (Fla. 2d DCA 2009). Zeigler was stayed pending this Court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010), and we subsequently quashed and remanded Zeigler for reconsideration in light of Montgomery. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

Based on the district court’s reliance on Zeigler in the present case, we accept jurisdiction and grant the petition for review. The decision under review is quashed, and this matter is remanded to the Third District Court of Appeal for reconsideration upon application of our decision in Montgomery.

It is so ordered.

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


text:
    Anthony Deshawn GLOVER, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-254.
    Supreme Court of Florida.
    Oct. 27, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner
    Pamela Jo Bondi, Attorney General, Edward C. Hill, Jr., Special Counsel, Trisha Meggs Pate, Bureau Chief and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review State v. Glover, 25 So.3d 38 (Fla. 1st DCA 2009), in which the First District Court of Appeal reversed a downward departure sentence and remanded for sentencing within the statutory guidelines. Petitioner alleges express and direct conflict with State v. Williams, 20 So.3d 419 (Fla. 3d DCA 2009), State v. Davis, 997 So.2d 1278 (Fla. 3d DCA 2009), and State v. Berry, 976 So.2d 645 (Fla. 3d DCA 2008). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending our disposition of Jackson v. State, 64 So.3d 90 (Fla.2011), in which we ultimately quashed the First District’s underlying Jackson decision and approved the opinions rendered by the Third District in Williams, Davis, and Berry to the extent that they are consistent with our holding. Jackson, 64 So.3d at 93. We then issued an order directing respondent in the present case to show cause why we should not accept jurisdiction, quash the First District’s Glover decision, and remand for reconsideration in light of our decision in Jackson. Respondent in its response agrees that there is no reason why this Court should not remand for reconsideration of Jackson.

We have accordingly determined to accept jurisdiction and grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the First District for reconsideration upon application of this Court’s decision in Jackson.

It is so ordered.

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