author: PER CURIAM. PARIENTE, J., LABARGA, J., PERRY, J.,

text:
    Freddie Lee HALL, Appellant, v. STATE of Florida, Appellee.
    No. SC10-1335.
    Supreme Court of Florida.
    Dec. 20, 2012.
    Rehearing Denied March 8, 2013.

      Bill Jennings, Capital Collateral Regional Counsel, Raheela Ahmed and Carol C. Rodriguez, Assistant Capital Collateral Region Counsel, Middle Region, Tampa, Florida and Eric Calvin Pinkard of Anderson Pinkard, P.A., Clearwater, Florida, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Kenneth Sloan Nun-nelley, Assistant Attorney General, Dayto-na Beach, Florida, for Appellee.
   PER CURIAM.

This case is before the Court on appeal of an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.203. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons expressed herein, we affirm the order denying relief.

FACTS AND PROCEDURAL HISTORY

Freddie Lee Hall was tried and convicted in Putnam County for the 1978 murder of Karol Hurst. Hall v. State (Hall I), 403 So.2d 1321, 1323 (Fla.1981). We upheld Hall’s conviction and sentence on direct appeal. Id. at 1325.

On September 9, 1982, the governor signed Hall’s first death warrant, effective for the week of October 1 through 8, 1982. Hall v. State (Hall II), 420 So.2d 872, 873 (Fla.1982). Hall filed a motion to vacate, a petition for writ of habeas corpus, and an application for a stay of execution, all of which were denied. Id. Hall then sought habeas corpus relief in the federal court, which was denied without an evidentiary hearing. Hall v. Wainwright (Hall III), 733 F.2d 766, 769 (11th Cir.1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985). Hall appealed to the Eleventh Circuit Court of Appeals, which reversed in part and remanded for a hearing. Id. at 777 (finding that Hall was entitled to a hearing on the issues of his absence from the courtroom and whether he deliberately bypassed his ineffective assistance of counsel claim).

On remand, the district court again denied relief, finding that Hall’s absences from trial occurred during non-critical stages and were therefore harmless, and that he deliberately bypassed the ineffective assistance of counsel claim. Hall v. Wainwright (Hall IV), 805 F.2d 945, 946 (11th Cir.1986), cert. denied, Hall v. Dugger, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). The Eleventh Circuit affirmed the denial. Id. at 948. Hall then petitioned this Court for habeas corpus relief based on the United States Supreme Court’s ruling in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (holding that all mitigating factors, not just statutory mitigation, should be considered by the judge and jury). This Court held that any error in the sentencing was harmless. Hall v. Dugger (Hall V), 531 So.2d 76, 77 (Fla.1988).

The governor then signed a second death warrant on September 20, 1988. Hall v. State (Hall VI), 541 So.2d 1125, 1126 (Fla.1989). Hall filed his second 3.850 motion, alleging error under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The trial court found that this Court’s ruling on the issue in Hall V was a procedural bar to Hall raising the claim again. Hall VI, 541 So.2d at 1126. We disagreed, stating that the “case involves significant additional non-record facts” that had not been considered on habeas review. Id. Ultimately, we determined that a Hitchcock error occurred, and that such error could not be considered harmless. Id. at 1128. We then vacated Hall’s death sentence and remanded for a new sentencing proceeding. Id.

During the resentencing, the trial court found Hall mentally retarded as a mitigating factor and gave it “unquantifiable” weight. The court again condemned Hall to death, and we affirmed. Hall v. State (Hall VII), 614 So.2d 473, 479 (Fla.1993). Hall sought postconviction relief, which was denied. Hall v. State (Hall VIII), 742 So.2d 225, 230 (Fla.1999). We affirmed the denial. Id. at 230. In finding that the trial court properly denied Hall’s claim that the court erred in finding him competent to proceed at the resentencing, we stated “While there is no doubt that [Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings.” Id. at 229.

After Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), was decided, Hall filed a motion to declare section 921.137, Florida Statutes (2004), unconstitutional. While the motion was pending, we adopted Florida Rule of Criminal Procedure 3.208 as a mechanism to file Atkins claims. Hall timely filed such a claim on November 30, 2004. No action was taken on the motion until, on March 27, 2008, Hall filed a motion to prohibit relitigation of the mental retardation issue, which was denied. The court then held an evidentiary hearing on Hall’s successive motion to vacate his sentence.

At the evidentiary hearing held on December 7 and 8, 2009, Hall presented testimony from Dr. Valerie McClain, who testified that she did not obtain Hall’s IQ; Lugene Ellis, Hall’s half-brother, who testified about his recollection of Hall as a child; James Hall, Hall’s brother, who testified regarding Hall’s problems with reading, writing, and caring for himself; Dr. Harry Krop, who testified that Hall’s IQ using the Wechsler Adult Intelligence Scale Revises was 73 and that a prior result on the same test given by Marilyn Feldman resulted in a score of 80; and Dr. Gregory Prichard, who testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall sought to introduce a report compiled by then-deceased Dr. Bill Mosman through Dr. Prichard, but the court denied it and only allowed Hall to proffer the report for the record. After reviewing the evidence presented, the court determined that Hall could not meet the first prong of the mental retardation standard to establish his mental retardation — an IQ below 70. The court denied relief in an order issued May 26, 2010, and entered an amended order on June 16, 2010.

Hall appeals the court’s denial, raising four claims: (1) the trial court’s finding that Hall is not mentally retarded is not supported by competent, substantial evidence; (2) the trial court erred in granting the State’s motion in limine that limited the evidence Hall could present on his mental retardation claim; (3) the trial court erred by striking Dr. Mosmaris report; and (4) the trial court should have imposed a life sentence based on the doctrine of collateral estoppel. Because we find that there is competent, substantial evidence to support the court’s finding that Hall is not mentally retarded, we affirm.

DISCUSSION

Hall asserts that he is mentally retarded pursuant to Atkins. Further, Hall alleges that his IQ should be read as a range of scores from 67 to 75 and that this Court’s adoption of a firm cutoff of 70 or below to qualify as mentally retarded misapplies the Supreme Court’s ruling in Atkins and fails to reflect an understanding of IQ testing. Hall contends that the appropriate standard would (a) include the standard error measurement (SEM), and (b) provide for a score band or range of scores. We recently declined to adopt this “range of scores” argument. See Franqui v. State, 59 So.3d 82 (Fla.2011). We again decline to adopt this line of reasoning. As we stated in Franqui:

Nixon asserted, as does Franqui, that the Supreme Court in Atkins noted a consensus in the scientific community that a full scale IQ falling within a range of 70 to 75 meets the first prong of the test for mental retardation; therefore, Nixon contended, states must recognize the higher cut-off IQ score of 75. Nixon, 2 So.3d at 142. We disagreed, reasoning that Atkins recognized a difference of opinion among various sources as to who should be classified as mentally retarded, and consequently left to the states the task of developing appropriate ways to enforce the constitutional restriction on imposition of the death sentence on mentally retarded persons. Nixon, 2 So.3d at 142.

Id. at 94 (citing Nixon v. State, 2 So.3d 137 (Fla.2009)).

Section 921.137, Florida Statutes (2012), prohibits the trial court from sentencing to death a mentally retarded defendant who is convicted of a capital felony. Section 921.137 provides the governing legal standard for such claims, and rule 3.203 outlines the procedural requirements. Both the statute and rule define the elements of a mental retardation claim as discussed in Atkins: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifested during the period from conception to age eighteen. See Atkins, 536 U.S. at 318, 122 S.Ct. 2242; § 921.137(1), Fla. Stat. (2012); Fla. R.Crim. P. 3.203(b). Subsection (1) of the statute defines mental retardation as:

significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities. The term “adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community. The Agency for Persons with Disabilities shall adopt rules to specify the standardized intelligence tests as provided in this subsection.

§ 921.137(1), Fla. Stat. (2012). This statute was adopted prior to the Supreme Court’s ruling in Atkins. See Ch.2001-202, § 1, Laws of Fla.

In Cherry v. State, 959 So.2d 702 (2007), we determined the proper interpretation of section 921.137. Cherry argued that an IQ measurement is more appropriately expressed as a range of scores rather than a concrete number because of the SEM. We held:

Both section 921.137 and rule 3.203 provide that significantly subaverage general intellectual functioning means “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” One standard deviation on the WAIS-III, the IQ test administered in the instant case, is fifteen points, so two standard deviations away from the mean of 100 is an IQ score of 70.... [T]he statute does not use the word approximate, nor does it reference the SEM. Thus, the language of the statute and the corresponding rule are clear. We defer to the plain meaning of statutes....

Cherry, 959 So.2d at 712-13.

In Nixon, the appellant challenged our decision in Cherry, also alleging that we improperly imposed a firm IQ cutoff of 70. We disagreed, reasoning that while Atkins recognized a difference of opinion among various sources regarding who should be classified as mentally retarded, the Supreme Court left the determination to the individual states. Accordingly, we found that Florida’s definition is consistent with the American Psychiatric Association’s diagnostic criteria for mental retardation. Nixon v. Florida, 2 So.3d 137, 143 (Fla.2009) (citing Jones v. State, 966 So.2d 319, 326 (Fla.2007)).

The cutoff was recently reaffirmed in Franqui. Franqui was convicted of the December 1991 murder of Raul Lopez and sentenced to death, which this Court affirmed. Franqui v. State, 59 So.3d 82, 106 (Fla.2011) (citing Franqui v. State, 699 So.2d 1312 (Fla.1997)). Franqui filed his initial rule 3.850 motion in January 1999, which he then amended in April 2000. Id. at 89. Prior to the evidentiary hearing granted on some of the claims he raised, Franqui supplemented his motion to raise an Atkins claim, which was summarily denied on February 21, 2008. Id. at 89-90. On review, we temporarily relinquished jurisdiction to the circuit court with directions to hold an evidentiary hearing on the mental retardation claim. Id. at 90 (citing Franqui v. State, 14 So.3d 238 (Fla.2009)). Testing revealed Franqui’s IQ fell somewhere between 71 and 80. Id. at 91. The trial court, after considering the stipulated evidence of the experts’ reports, found that Franqui was not mentally retarded as a matter of law. Id.

On appeal, Franqui raised essentially the same claim Hall raises here, namely: this Court’s interpretation of mental retardation mandating a cutoff score of 70 or below to meet the first prong of the test for mental retardation is contrary to Atkins. In Franqui, we found that (1) the United States Supreme Court did not mandate a specific IQ score or range for a finding of mental retardation in Atkins; (2) Florida’s statute prohibiting the execution of the mentally retarded, section 921.137, preceded Atkins; (3) proper interpretation of section 921.137 was under the plain language of the statute providing that “significantly subaverage general intellectual functioning” means performance that is “two or more standard deviations from the mean score on a standardized intelligence test” and does not require the Court to consider the standard error of measurement (SEM); and (4) one standard deviation on the test in question is fifteen points, thus 70 is the appropriate score based on the plain language of section 921.137 and not a range of scores.

Hall argues that we recognized a higher IQ as possible evidence of mental retardation in Thompson v. State, 3 So.3d 1237 (Fla.2009), where we reversed the trial court’s summary denial of Thompson’s postconviction motion. Although Thompson’s motion alleged an IQ of 74 or 75, we reversed the trial court’s summary denial and remanded for the court to hold an evidentiary hearing to determine whether Thompson met the requirements established in Cherry. Thompson, 3 So.3d at 1238-39. However, we specified, “[W]e express no opinion on the merits of [Thompson’s] claim of mental retardation.” Thompson, 3 So.3d at 1238.

Hall additionally alleges that this Court recognized an IQ score of 75 as “evidence of mental retardation” in Foster v. State, 929 So.2d 524 (Fla.2006). Hall mischarac-terizes our opinion. We quoted the post-conviction court, which found that “ ‘even if the Defendant’s IQ score of 75 is considered as evidence of mental retardation, [he] does not meet the second prong of the test set forth in Atkins.... ” Id. at 532. As such, neither this Court nor the lower court recognized 75 as evidence of mental retardation.

Like Franqui before him, Hall asserts that the statutorily prescribed cutoff is arbitrary because it does not consider the range of scores mentioned in Atkins. We have previously found this argument to be meritless. See, e.g., Cherry, 959 So.2d at 712-13; Nixon, 2 So.3d at 142; Phillips v. State, 984 So.2d 503, 510 (Fla.2008); Jones v. State, 966 So.2d 319, 329 (Fla.2007); Brown v. State, 959 So.2d 146, 148-49 (Fla.2007); Burns v. State, 944 So.2d 234, 248 (Fla.2006); Rodgers v. State, 948 So.2d 655, 666-68 (Fla.2006); Trotter v. State, 932 So.2d 1045, 1049-50 (Fla.2006); Johnston v. State, 960 So.2d 757, 761 (Fla.2006); Zack v. State, 911 So.2d 1190, 1201 (Fla.2005).

Hall next contends that the lower court improperly limited his introduction of evidence of the second two elements to establish mental retardation. We have recognized that all three elements must be established for a defendant to show that he or she is mentally retarded and thus ineligible for execution.

The defendant must establish that he has significantly subaverage general intellectual functioning. If significantly subaverage general intellectual functioning is established, the defendant must also establish that this significantly sub-average general intellectual functioning exists with deficits in adaptive behavior. Finally, he must establish that the significantly subaverage general intellectual functioning and deficits in adaptive behavior manifested before the age of eighteen.

Thompson, 3 So.3d at 1238 (quoting Cherry, 959 So.2d at 711) (internal brackets omitted). Thus, we have concluded that because a defendant must establish all three elements of such a claim, the failure to establish any one element will end the inquiry. See, e.g., Cherry, 959 So.2d at 714 (“Because we find that [the defendant] does not meet this first prong of the section 921.137(1) criteria, we do not consider the other two prongs of the mental retardation determination.”). Hall’s argument that the lower court improperly limited his introduction of evidence after he failed to establish the requisite IQ is thus without merit. See Jones v. State, 966 So.2d 319, 325 (Fla.2007); Burns v. State, 944 So.2d 234, 249 (Fla.2006); § 921.137(4), Fla. Stat. (2012).

Third, Hall complains that the trial court abused its discretion in refusing to admit the report prepared by Dr. Mosman through the testimony of Dr. Prichard. In its order, the court noted that Dr. Mos-man’s report “lacked critical detail and information indicating how he obtained [Hall’s] intelligence quotient of sixty-nine (69).” The court determined that the report did not constitute competent evidence and that Hall’s failure to comply with the court’s order to compel was highly prejudicial to the State and excluded the report from evidence. Because the underlying data to support the report were not available, the State could not conduct a proper voir dire and Hall could not otherwise establish the adequacy of the underlying data to support Dr. Mosman’s report. Accordingly, we find that the trial court did not abuse its discretion in excluding the report.

Finally, Hall alleges that the lower court should have been precluded from holding an evidentiary hearing on Hall’s alleged mental retardation and should have entered a life sentence because the court previously found him to be mentally retarded. We disagree.

In Bobby v. Bies, 556 U.S. 825, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009), the United States Supreme Court addressed a similar issue. Michael Bies was tried and convicted in Ohio of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy nearly one decade prior to the Court’s decision in Atkins. Bies, 129 S.Ct. at 2149. Bies’ IQ fell in the 65 to 75 range, indicating that he is “mildly mentally retarded to borderline mentally retarded.” Id. at 2149-50. On postconviction review, the trial court agreed that Bies was mildly mentally retarded, but concluded that he was still eligible for execution. Id. at 2150. After the Supreme Court issued Atkins, and the Ohio Supreme Court adopted it in State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011 (2002), Bies presented his Atkins claim to the state’s postconviction court. Id. Bies moved for summary judgment, arguing that the record established his mental retardation and that the State was precluded and estopped from disputing it. Id. The court denied summary judgment because Bies’ mental retardation had not been established under the Atkins-Lott framework, and ordered a full hearing. Id. at 2151. Bies took his claim to the Federal District Court, arguing that the Fifth Amendment’s Double Jeopardy Clause barred the State from relitigating the issue of his mental condition. The court agreed and ordered vacation of Bies’ death sentence. The Court of Appeals affirmed. Id. The Supreme Court reversed, stating that “[t]he State did not ‘twice put Bies in jeopardy.’” Id. Further, the court stated that no state-court determination of his mental retardation entitled him to a life sentence. Id. at 2152.

Here, Hall argues that the issue should be estopped because of the trial court’s finding that Hall was mentally retarded as mitigation. As summarized by the Supreme Court in Bies,

even if the core requirements for issue preclusion had been met, an exception to the doctrine’s application would be warranted due to this Court’s intervening decision in Atkins. Mental retardation as a mitigator and mental retardation under Atkins ... are discrete legal issues. The Atkins decision itself highlights one difference: “[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury.” 536 U.S. at 321, 122 S.Ct. 2242. This reality explains why prosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation.... Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law.

Bies, 129 S.Ct. at 2153. Accordingly, we deny relief on this claim.

For the foregoing reasons, we affirm the court’s denial of Hall’s 3.203 motion.

It is so ordered.

POLSTON, C.J., LEWIS, and CANADY, JJ., concur.

PARIENTE, J., concurs with an opinion.

LABARGA, J., dissents with an opinion, in which PERRY, J., concurs.

PERRY, J., dissents with an opinion, in which LABARGA, J., concurs.

QUINCE, J., recused.

PARIENTE, J.,

concurring.

In 1991, the trial judge who sentenced Freddie Lee Hall to death found Hall to be mentally retarded. Yet, in 2010, the same trial judge found the same defendant not to be mentally retarded. What is the reason for this apparent anomaly? The answer lies in the fact that the trial court in 2010 was applying the statutory definition of mental retardation that acts as a bar to execution, which did not exist in 1991. Between 1991 and 2010, two developments in the law occurred: (1) the Legislature enacted section 921.137(1), Florida Statutes (2001); and (2) the United States Supreme Court decided the case of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

In Atkins, the United States Supreme Court dramatically changed the legal landscape pertaining to mental retardation and death penalty jurisprudence. The Supreme Court held that it was unconstitutional under the Eighth Amendment for a mentally retarded person to be executed, but the Court also left to the states “the task of developing appropriate ways to enforce the constitutional restriction” on the execution of such individuals. Id. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).

In Florida, our jurisprudence on this issue is constrained by the Legislature’s enactment, as long as the Legislature defines mental retardation within the constitutional parameters of Atkins. As set forth in Cherry v. State, 959 So.2d 702 (2007), the defendant must present evidence of a significant subaverage general intellectual functioning as a threshold for establishing mental retardation. This requirement derives from the language of section 921.137(1), Florida Statutes, which this Court in Cherry interpreted as providing a “strict cutoff of an IQ score of 70 in order to establish significantly subaverage intellectual functioning.” Cherry, 959 So.2d at 712. Based on the legislative definition of mental retardation, the Court rejected the application of the standard error of measurement (SEM) to the IQ score — not because we considered it the better policy but because we were adhering to the plain language of the statute. Id. at 712-14.

Applying both the statutory definition and our precedent in this case, the trial court found that there was not competent, substantial evidence to support a finding of an IQ score at or below 70. An outlier test, which was performed by Dr. Mosman, could not be considered because Dr. Mos-man’s testimony had not been preserved prior to his death.

Nearly twenty years before, in 1991, the trial court resentenced Hall to death and found him to be mentally retarded as a mitigating factor with “unquantifiable” weight. Yet the circumstances in 1991 were different. In 1991, Hall’s evidence went unchallenged, whereas in 2010, there was a true adversarial testing of whether Hall was mentally retarded under Florida’s statutory definition of mental retardation. In contrast to the 2010 postconviction hearing, during Hall’s 1991 resentencing, the State did not contest the evidence Hall presented, but instead relied on its own evidence to establish seven strong aggravators to outweigh the mitigators.

Although the State in 1991 did not contest whether Hall suffered from mental retardation, the trial court noted throughout the sentencing order that it was troubled as to whether the mental health experts presented by the defendant had exaggerated Hall’s inabilities. The trial court made certain statements throughout the sentencing order that questioned whether Hall suffered from mental retardation, including an in-depth discussion as to whether his behavior and abilities were consistent with a person who had mental retardation. The court explained in relevant part as follows:

[Hall’s] behavior at the time of the crimes for which he stands convicted, as well as some of the statements that he made previously ... would belie the fact of his severe psychosis and mental retardation. Nothing of which the experts testified could explain how a psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed. Bear in mind that the facts of this case conclusively showed that Freddie Lee Hall was the one that kidnapped Karol Lea Hurst from the Pantry Pride grocery store. Freddie Lee Hall alone was the one that drove Karol Lee Hurst, in broad daylight, through the city of Leesburg to a spot in the woods some eighteen miles distant. There is no evidence as to whether or not Freddie Lee Hall possessed a driver’s license, but he was certainly driving a car in broad daylight through city traffic with a kidnapped victim inside.... Nothing in the evidence can explain how Freddie Lee Hall could live a more or less normal life, obtain employment, and substantially remain outside of violation of the law during the five (5) years that he was on parole after his first rape conviction. Nothing in the evidence can explain the statements that the defendant made when he testified in his own behalf during his first trial.... In other words, the clinical characterization of the defendant presented by the testimony of the defense experts does not seem to comport with the other evidence of the defendant’s background and behavior that are clear from other aspects of the evidence in this case. Thus, this Court believes that the evidence of the experts, for whatever reason or reasons, is exaggerated to some extent.

When discussing mental retardation, the trial judge found as follows: “There is substantial evidence in the record to support this finding. Again, however, there is difficulty in relating this factor back to determine how it affected the defendant’s state of mind at the time of the crime. The mitigating factors of this fact are thus ‘unquantifiable.’ ” In evaluating the mitigation in conjunction with the aggravation, the court again noted concerns as to whether the evidence showed that Hall was in fact mentally retarded, stating that “the defendant shows more deliberation and planning than that which might be attributed to a typical retarded defendant.”

In 1999, when Hall filed his initial motion for postconviction relief, the trial court again expressed reservations on the issue of mental retardation, stating that Hall “is probably somewhat retarded.” Hall v. State (Hall VIII), 742 So.2d 225, 230 (Fla.1999)(emphasis added). At that time, I joined with Justice Anstead in relying on Justice Barkett’s position that executing mentally retarded individuals is cruel and unusual punishment, a position that later became the holding of the United States Supreme Court in Atkins. Hall VIII, 742 So.2d at 231 (Anstead, J., specially concurring).

When those decisions were rendered in 1991 and 1999, Atkins had not yet established the prohibition on executing mentally retarded individuals as cruel and unusual punishment. A trial court could find that a defendant was mentally retarded without regard to any statutory definition of mental retardation and those findings would serve as mitigation in much the same way as mental illness or brain damage. Therefore, because mental retardation was not a bar to execution, the State would not have had the same interest in controverting the expert testimony if, as occurred here, there was such overwhelming evidence in aggravation. Thus, as it applies to this case, until this current post-conviction proceeding, there was no true adversarial testing on the issue of whether Hall’s mental deficits qualified as mental retardation under a statutory definition that was enacted only after Hall’s direct appeal and prior postconviction proceedings.

I appreciate the views expressed in the dissents written by Justice Labarga and Justice Perry. I echo the sentiment that Justice Labarga highlights in his dissent: “[T]he imposition of an inflexible bright-line cutoff score of 70, even if recognized as often describing the upper range of mild mental retardation, is not in every case an appropriate way to enforce the restriction on execution of the mentally retarded.” Dissenting op. at 27 (Labarga, J.). Unquestionably, clinical definitions of mental retardation recognize the need for application of the SEM and the use of clinical judgment. In fact, the American Psychiatric Association (APA) proposes a revision to the definition of mental retardation that will replace the use of a numerical score for mental retardation and instead refer to an Intellectual Development Disorder (IDD). However, unless this Court were to recede from Cherry, 959 So.2d at 712-13, as reaffirmed in Nixon v. State, 2 So.3d 137, 142-43 (Fla.2009), and more recently in Franqui v. State, 59 So.3d 82, 92-94 (Fla.2011), a plain language interpretation of Florida’s bright-line cutoff score of 70 will remain the rule of law in this state.

Florida, while not unique in its use of a bright-line cutoff score of 70, is not in the majority, although there is no clear national consensus. Among the states around the nation that continue to have the death penalty, ten states have a statutory bright-line rule that do not apply the SEM, including Florida. On the other hand, sixteen states do apply the SEM, including ten states without a statutory bright-line cutoff. At least an additional two states through court decision do not apply the SEM. The application of the SEM to IQ scores in the remaining four states is unclear.

This national survey of the states that have the death penalty illustrates that there is no clear consensus among the states regarding the use of the SEM, but the use of a bright-line cut off in some states versus the use of the SEM in other states indicates that there will be some inconsistency in findings of mental retardation based on the exact same circumstances.

It is certainly of concern that in some states Hall would be mentally retarded by those states’ definitions, while in others, like Florida, the bright-line cutoff requires a contrary finding. Unfortunately, mental retardation, unlike age, is not a fixed objective test, and therefore these variations appear to have been contemplated by the United States Supreme Court when Atkins was decided. For example, the State of Texas, which leads the nation in executions, declined to establish a bright-line IQ cut off for execution without “significantly greater assistance from the legislature.” Ex parte Hearn, 310 S.W.3d 424, 430 (Tex.Crim.App.2010). The Hearn Court stated that any IQ score could actually represent an IQ that is either five points higher or five points lower than the person’s actual IQ after factoring in the SEM. Id. at 428.

At some point in the future, the United States Supreme Court may determine that a bright-line cutoff is unconstitutional because of the risk of executing an individual who is in fact mentally retarded. However, until that time, this Court is not at liberty to deviate from the plain language of section 921.137(f). See Hayes v. State, 750 So.2d 1, 4 (Fla.1999) (“We are not at liberty to add words to statutes that were not placed there by the Legislature.”). Without a change from the Legislature or further direction from the United States Supreme Court, I conclude that the statute adopted by the Legislature and the precedent set forth by this Court require that the trial court’s order finding Hall not to be mentally retarded be affirmed.

LABARGA, J.,

dissenting.

I dissent from the holding of the majority that application of the statutory bright-line cutoff score of a full scale IQ of 70 for determining mental retardation as a bar to execution comports with the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), under the facts and circumstances of this case. I write to express my deep concern with the fact that even though Hall was found to be retarded long before the Supreme Court decided Atkins, and even though evidence was presented below that he remains retarded, we are unable to give effect to the mandate of Atkins under the definition of “mental retardation” set forth in section 921.137(1), Florida Statutes (2012). In 1993, on appeal from Hall’s resentencing, Justice Barkett, joined by Justice Kogan, pointed out in her dissent that the trial judge in this case found that Hall “has been mentally retarded all of his life.” Hall VII, 614 So.2d at 479 (Barkett, C.J., dissenting). At that time, mental retardation was not an absolute bar to execution, but was considered generally in mitigation. Subsequently, on postconviction appeal in 1999, Hall’s claim that execution of mentally retarded persons violated the United States Constitution was found to be proeedurally barred. See Hall VIII, 742 So.2d at 226. In his special concurrence in Hall VIII, Justice Anstead, joined by Justice Par-iente, expressed the view that execution of mentally retarded persons such as Hall violated the Florida Constitution. Id. at 280-31 (Anstead, J., specially concurring). In 2001, Hall again attempted to obtain relief on his claim that he may not constitutionally be executed because he is mentally retarded. This Court denied relief, noting that the trial court had followed Penry v. Lynaugh, 492 U.S. 802, 340, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), in which the Supreme Court had held there is no constitutional bar to prevent execution of the mentally retarded. See Hall v. Moore, 792 So.2d 447, 449 (Fla.2001). One year later, the United States Supreme Court overruled Penry in Atkins and held that execution of the mentally retarded violates the constitutional prohibition against cruel and unusual punishment. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Thus, ever since the trial court found him to be retarded, Hall has urged this Court to hold that, because he is mentally retarded, he may not be executed. But for the vagary of the timing of the trial court’s conclusion in relation to the timing of the Supreme Court’s decision in Atkins, Hall would not be on death row today.

The situation present in Florida, in which the Legislature has established a bright-line cutoff score that this Court has upheld, now creates a significant risk that a defendant who has once been found to be mentally retarded may still be executed. I believe this result is not in accord with the rationale underlying the constitutional bar to execution of the mentally retarded, which the United States Supreme Court set forth in Atkins. A state’s procedural safeguards must protect against an erroneous conclusion that the offender is not mentally retarded. In order to meet constitutional muster, I believe that Florida’s statutory and rule provisions, which were put into place with the laudable goal of assuring that mentally retarded individuals are not executed, must be crafted — or at a minimum construed — so as to avoid the unwarranted risk of an erroneous mental retardation determination that would allow those who are mentally retarded to be executed.

In its 2005 holding that the Constitution prohibits execution of defendants who were under the age of eighteen at the time of the murder, the Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), explained:

The Atkins Court neither repeated nor relied upon the statement in Stanford[ ] that the Court’s independent judgment has no bearing on the acceptability of a particular punishment under the Eighth Amendment. Instead we returned to the rule, established in decisions predating Stanford, that ‘“the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” 536 U.S., at 312 [122 S.Ct. 2242] (quoting Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861 [53 L.Ed.2d 982] (1977) (plurality opinion)). Mental retardation, the Court said, diminishes personal culpability even if the offender can distinguish right from wrong. 536 U.S., at 318 [122 S.Ct. 2242], The impairments of mentally retarded offenders make it less defensible to impose the death penalty as retribution for past crimes and less likely that the death penalty will have a real deterrent effect. Id., at 319-320 [122 S.Ct. 2242], Based on these considerations and on the finding of national consensus against executing the mentally retarded, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that the Eighth Amendment “ ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” Id., at 321 [122 S.Ct. 2242] (quoting Ford v. Wainwright, 477 U.S. 399, 405 [106 S.Ct. 2595, 91 L.Ed.2d 335] (1986)).

Roper, 543 U.S. at 563-64, 125 S.Ct. 1183 (emphasis added). Similarly, I urge this Court to bring its own judgment to bear on the question of the constitutional acceptability of the execution of persons who, under all the facts and data reasonably relied upon by mental health experts, have been determined to be mentally retarded when the execution is permitted solely by the Legislature’s inflexible definition of mental retardation. The Court in Roper reminds us that the prohibition against cruel and unusual punishment in the Eighth Amendment must be interpreted in part “with due regard for its purpose and function in the constitutional design.” Id. at 560, 125 S.Ct. 1183. “To implement this framework we have established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” Id. at 560-61, 125 S.Ct. 1183. The Supreme Court noted that when it decided Atkins, “[w]e held that standards of decency have evolved since Penry and now demonstrate that execution of the mentally retarded is cruel and unusual punishment.” Roper, 543 U.S. at 563, 125 S.Ct. 1183. The difficulty has been in finding a reliable way in which to determine which capital defendants fall into this class of persons for whom execution is barred.

The Atkins Court noted that the accepted definitions for mental retardation refer in pertinent part to “significantly subaver-age intellectual functioning.” Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. That Court did not prescribe any specific IQ score as a bright-line cutoff, although the Court noted that “mild” mental retardation is typically used to describe people with an IQ level range of 50 to 70. Id. However, this typical description was not given as a mandated cutoff score, and the Court later noted that “[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.” Id. at 317, 122 S.Ct. 2242. This prediction certainly proved prescient in Florida, as Florida courts have continued to struggle with evaluation of the claims of mental retardation raised by capital defendants. I recognize that it is because of this very difficulty in determining which offenders are in fact mentally retarded that the Supreme Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). We must focus, however, on the Supreme Court’s mandate that the ways developed by the States must actually be “appropriate” to enforce the restriction. In my view, the imposition of an inflexible bright-line cutoff score of 70, even if recognized as often describing the upper range of mild mental retardation, is not in every case an appropriate way to enforce the restriction on execution of the mentally retarded. This is true where, as here, ample evidence has been presented that the defendant has been mentally retarded from an early age despite the achievement of an IQ score over 70 on IQ testing. The Supreme Court barred execution of mentally retarded individuals based in part on the evolving standards of decency in our maturing society, and those standards should include thoughtful consideration of all the factors that mental health professionals consider in determining whether an individual is mentally retarded, without application of an inflexible, oftentimes arbitrary, bright-line cutoff IQ score.

In 2010, the United States Supreme Court decided Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which it held that sentencing juvenile offenders to life in prison without the possibility of parole for non-homicide offenses violates the Cruel and Unusual Punishment clause of the United States Constitution. Id. at 2034. In explaining its decision, the Court noted that in Atkins it barred execution of offenders “whose intellectual functioning is in a low range.” Id. at 2022. Hall certainly meets that standard and has met that standard for his entire life.

The United States Supreme Court has not been unwilling to recede from or overrule its precedent when it concludes that execution of certain classes of persons violates the Eighth Amendment. Nor should this Court be unwilling to do the same. Where, as here, the evidence has long established that a defendant is functionally mentally retarded, I believe there is a justifiable concern of constitutional magnitude in putting such a defendant to death. That same concern should lead this Court to revisit its precedent that has heretofore bound this Court to the inflexible test set forth by the Legislature for identification of mentally retarded persons who are not constitutionally subject to execution. For all the foregoing reasons, I also encourage the Legislature to reexamine its definition of mental retardation set forth in section 921.137(4), in light of the principles set forth in the United States Supreme Court’s decision in Atkins.

PERRY, J., concurs.

PERRY, J.,

dissenting.

If the bar against executing the mentally retarded is to mean anything, Freddie Lee Hall cannot be executed. Hall “has been retarded his whole life.” I do not disagree with my esteemed colleagues that section 921.137(1), Florida Statutes (2012), and our caselaw provide that a defendant must establish an IQ below 70 to be ineligible to be executed, but that statute as applied here reaches an absurd result. Because this is my belief, I respectfully dissent.

The record before us is replete with indications of Hall’s mental retardation. This Court has twice noted the evidence demonstrating Hall’s mental retardation:

The testimony reflects that Hall has an IQ of 60; he suffers from organic brain damage, chronic psychosis, a speech impediment, and a learning disability; he is functionally illiterate; and he has a short-term memory equivalent to that of a first grader. The defense’s four expert witnesses who testified regarding Hall’s mental condition stated that his handicaps would have affected him at the time of the crime. As the trial judge noted in the resentencing order, Freddie Lee Hall was “raised under the most horrible family circumstances imaginable.” '
Indeed, the trial judge found that Hall had established substantial mitigation. The judge wrote that the evidence conclusively demonstrated that Hall “may have been suffering from mental and emotional disturbances and may have been, to some extent, unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Additionally, the judge found that Hall suffers from organic brain damage, has been mentally retarded all of his life, suffers from mental illness, suffered tremendous emotional deprivation and disturbances throughout his life, suffered tremendous physical abuse and torture as a child, and has learning disabilities and a distinct speech impediment that adversely affected his development.
Hall’s mental deficiency as an adult is not surprising. The sixteenth of seventeen children, Hall was tortured by his mother and abused by neighbors. Various relatives testified that Hall’s mother tied him in a “croaker” sack, swung it over a fire, and beat him; buried him in the sand up to his neck to “strengthen his legs”; tied his hands to a rope that was attached to a ceiling beam and beat him while he was naked; locked him in a smokehouse for long intervals; and held a gun on Hall and his siblings while she poked them with sticks. Hall’s mother withheld food from her children because she believed a famine was imminent, and she allowed neighbors to punish Hall by forcing him to stay underneath a bed for an entire day.
Hall’s school records reflect his mental deficiencies. His teachers in the fourth, sixth, seventh, and eighth grades described him as mentally retarded. His fifth grade teacher stated that he was mentally maladjusted, and still another teacher wrote that “his mental maturity is far below his chronological age.”

Hall VIII, 742 So.2d at 231 (Anstead, J. specially concurring) (quoting Hall VII, 614 So.2d at 479-80 (Barkett, C.J. dissenting)). Hall is a poster child for mental retardation claims because the record here clearly demonstrates that Hall is mentally retarded. The fact that our statutory standard does not agree only serves to illustrate a flaw in the statute.

As the United States Supreme Court articulated in Atkins, those with disabilities in areas of reasoning, judgment, and control of their impulses “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Atkins, 536 U.S. at 306, 122 S.Ct. 2242. Indeed, “our society views mentally retarded offenders as categorically less culpable than the average criminal.” Id. at 316, 122 S.Ct. 2242. Thus, while there is agreement about the execution of mentally retarded offenders, there remains disagreement, and difficulty, in determining which offenders are retarded. “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. at 317, 122 S.Ct. 2242. Atkins thus left this determination to the states.

Prior to Atkins, this State adopted section 921.137, which provides in relevant part:

The term “significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities.

§ 921.137(1), Fla. Stat. (2012)

As we observed in Cherry, mental health practitioners are expected to look at IQ as a range rather than an absolute.

The concept of mental retardation is considered to be a range or band of scores, not just one score or a specific cutoff for mental retardation. The idea behind that is there’s recognition that no one IQ score is exact or succinct, that there’s always some variability and some error built in.
And the Diagnostic and Statistical manual which is what we — meaning the mental health professionals — rely on when arriving at diagnostic hypotheses. That manual guides us to look at IQ scores as being a range rather than absolute. And the manual talks about a score from 65, a band, so to speak, from 65 to 75 — and of course, lower than 65— comprising mental retardation.

Cherry, 959 So.2d at 711-12 (quoting Dr. Peter Bursten). Nevertheless, this Court was constrained by the language of the statute and found that an IQ higher than 70 failed to meet the first prong of section 921.137(1), and that no further inquiry was necessary. Id. at 714.

Thus far, our interpretation of the statute and applicable rule has led us to a dogged adherence to a bright-line cutoff of a score of 70 on the IQ test. Yet, even when a defendant is able to demonstrate a lower IQ, the rest of the statute allows the courts to reason that the defendant is not mentally retarded. See, e.g., Dufour v. State, 69 So.3d 235, 244-53 (Fla.2011) (finding that despite IQ scores of 62, 67, and 74, Dufour failed to establish deficits in adaptive functioning because he was able to complete his GED and live independently); Hodges v. State, 55 So.3d 515, 527, 535 (Fla.2010)(fínding that although Hodges had IQ scores of 62, 66, and 69, he did not establish deficits in adaptive functioning because he was able to copy letters drafted by others and sign his own name and was able to support himself as a short-order cook, garbage collector, and dishwasher); Rodgers v. State, 948 So.2d 655, 661 (Fla.2006) (finding that the trial court did not err in finding that the defense expert’s recitation of Rodgers’ IQ of 69 was less credible evidence than court-appointed experts who found higher IQs); Burns v. State, 944 So.2d 234, 248 (Fla.2006) (finding that despite an IQ of 69, Burns was unable to establish deficits in adaptive functioning because he was able to support himself); Rodriguez v. State, 919 So.2d 1252, 1266 (Fla.2005) (finding that despite his low IQ, his behavior in trial proceedings indicated that he was not mentally retarded). We have interpreted the statute as requiring a threshold for the courts to even consider retardation, but then allow the same courts to subjectively reason away the bar to execution. Thus, under this interpretation of the statutory scheme, a defendant can be found mentally retarded but not have it serve as a bar to execution because his IQ is too high, and if his IQ is low enough, he can still be found not to be mentally retarded because he can hold a pen to paper. Thus, it appears there is no reasonable way to be declared mentally retarded for the purposes of proving ineligibility for execution in Florida. If the proscription against executing the mentally retarded is to mean anything, it cannot be wielded as this double-edged sword.

The current interpretation of the statutory scheme will lead to the execution of a retarded man in this case. Hall had been found by the courts to be mentally retarded before the statute was adopted. Once the statute is applied, Hall morphs from someone who has been “mentally retarded his entire life” to someone who is statutorily barred from attempting to demonstrate concurrent deficits in adaptive functioning to establish retardation. Because this cannot be in the interest of justice, I dissent.

LABARGA, J., concurs.

      . Section 921.137, Florida Statutes was enacted during a regular session of the Florida Legislature in 2001. See ch.2001-202, § 1, Laws of Fla. The statute has been amended once to transfer duties from the Developmental Disabilities Program Office within the Department of Children and Family Services to the Agency for Persons with Disabilities. See ch.2006-195, § 23, Laws of Fla.

      . Thompson, 3 So.3d at 1239 (Wells, J., dissenting).

      . Unlike Florida, Ohio reviews mental retardation where the defendant’s IQ is above 70 as a rebuttable presumption.

      . These states are the following: Arkansas (Ark.Code Ann. § 5-4-618(a)(2) (2012)); Delaware (Del.Code Ann. tit. 11, § 4209(d)(3) (2012)); Florida (§ 921.137(1), Fla. Stat. (2012)); Idaho (Idaho Code Ann. § 19-2515A(l)(b) (2012)); Kentucky (Ky.Rev.Stat. Ann. § 532.130(2) (2012)); Maryland (Md. Code Ann., Crim. Law § 2-202(b)(l)(i) (2012)); North Carolina (N.C.Gen.Stat.Ann. § 15A-2005(a)(l) (2012)); Tennessee (Tenn. Code Ann. § 39-13-203(a)(l) (2012)); Virginia (Va.Code Ann. § 19.2-264.3:1.1(A) (2012)); and Washington (Wash. Rev.Code Ann. § 10.95.030(2)(c) (2012)).

      . The states that apply the SEM without a statutory bright-line rule are as follows: California, see In re Hawthorne, 35 Cal.4th 40, 24 Cal.Rptr.3d 189, 105 P.3d 552, 557-58 (2005); Georgia, see Stripling v. State, 261 Ga. 1, 401 S.E.2d 500, 504 (1991); Indiana, see Woods v. State, 863 N.E.2d 301, 303-04 (Ind.2007); Mississippi, see Chase v. State, 873 So.2d 1013, 1028 n. 18 (Miss.2004); Missouri, see State v. Johnson, 244 S.W.3d 144, 153 (Mo.2008) (en banc); Nevada, see Ybarra v. State, 247 P.3d 269, 274-76 (Nev.2011), cert. denied, — U.S. -, 132 S.Ct. 1904, 182 L.Ed.2d 776 (2012); Ohio, see State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263, 293 (2008); Pennsylvania, see Comm. v. Miller, 585 Pa. 144, 153-54, 888 A.2d 624 (Pa.2005); Texas, see Ex parte Hearn, 310 S.W.3d 424, 430 (Tex.Crim.App.2010); and Utah, see State v. Maestas, No. 20080508, 299 P.3d 892, 947, 2012 WL 3176383, at *41 (Utah July 27, 2012).
      The states that apply the SEM but include a statutoiy bright-line cut-off are as follows: Arizona, see State v. Grell, 212 Ariz. 516, 135 P.3d 696, 701 (2006); Louisiana, see State v. Dunn, 41 So.3d 454, 470 (La.2010); Nebraska, see State v. Vela, 279 Neb. 94, 777 N.W.2d 266, 304-05 (2010); Oklahoma, see Smith v. State, 245 P.3d 1233, 1237 (Okla.Crim.App.2010); Oregon, see Or.Rev.Stat. Ann. § 427.005(10)(b) (2012); and Tennessee, see Coleman v. State, 341 S.W.3d 221, 245-47 (Tenn.2011).

      . These states are: Alabama, see Ex parte Perkins, 851 So.2d 453, 455-56 (Ala.2002); and Kansas, see State v. Backus, 287 P.3d 894, 905 (Kan.2012).

      . These states are New Hampshire, South Carolina, South Dakota, and Wyoming.

      . Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).

      . This is so even despite subsection four of section 921.137, which provides, in part:
      At the final sentencing hearing, the court shall consider the findings of the court-appointed experts and consider the findings of any other expert which is offered by the state or the defense on the issue of whether the defendant has mental retardation.
      § 921.137(4), Fla. Stat. (2012); see also Fla. R. Admin. P. 65G-4.011(2) (2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012-01.
    No. SC12-449.
    Supreme Court of Florida.
    Feb. 14, 2013.
    Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) proposes amending standard jury instructions 11.10(c) — Lewd or Lascivious Molestation; 13.1 — Burglary; and 14.1 — Theft. The Committee asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Following publication of its proposals in the January 15, 2012, edition of The Florida Bar News, the Committee filed its report with the Court on February 23, 2012. The Committee had not received any comments pertaining to the published proposals. As discussed below, we amend the standard jury instructions as proposed by the Committee except as noted otherwise, and authorize the amended jury instructions for publication and use.

The Committee’s proposal pertaining to instruction 11.10(c) — Lewd or Lascivious Molestation, is straightforward and the instruction is amended as proposed. Accordingly, the phrase “in a lewd or lascivious manner” is added to both paragraphs of the instruction’s element number two.

Jury instruction 13.1 — Burglary, is amended in several respects, as follows.

First, the term “indictment” is added to reflect that the instruction applies if the offense of burglary is charged by indictment rather than information.

Second, the Court amends instruction 13.1to include language instructing upon the second-degree felony of burglary of a structure or conveyance when the offense intended to be committed therein was theft of a controlled substance. See § 810.02(3X0, Fla. Stat. (2012). This change is consistent with the Florida Legislature’s change to the burglary statute. See Ch.2011-141, § 21, Laws of Fla. (amending section 810.02(3)(f), Florida Statutes (2012)).

Third, we amend instruction 13.1 to specify the crime alleged throughout the instruction, other than burglary or trespass, that the defendant intended to commit.

Fourth, and related to the above amendment, the Court adds the phrase “other than burglary or trespass” to make clear to jurors that the crime intended cannot be burglary or trespass.

Fifth, the phrase “or should have known” is reinserted into the paragraph concerning entering an area of the premises open to the public. That phrase was inadvertently excluded upon the Committee’s proposed amendment to instruction 13.1in 2007, and that omission was perpetuated the following year when instruction 13.1was again amended. See In re Standard Jury Instructions in Criminal Cases—Report No. 2006-2, 962 So.2d 310, 322 (Fla.2007); In re Standard Jury Instructions in Criminal Cases—Report No. 2007-11, 986 So.2d 568, 564 (Fla.2008).

Sixth, the Court amends the definition of “authorized emergency vehicle” in instruction 13.1 to conform to the definition of that phrase in section 316.003, Florida Statutes (2012), the definition under the State Uniform Traffic Control provisions, and as used in the theft instruction.

Last, we decline to amend the burglary instruction to include language explaining that the enclosure around a structure or dwelling need not be “continuous” in order for there to be curtilage. Rather, we adhere to the statutory language as enacted by the Legislature and as previously interpreted by this Court. See § 810.011, Fla. Stat. (2012); State v. Hamilton, 660 So.2d 1038, 1040-1045 (Fla.1995) (construing “curtilage”).

Instruction 14.1 — Theft is amended in light of the Florida Legislature’s enactment of a law creating a third-degree felony for the theft of any amount of a controlled substance. See Ch.2011-141, § 22, Laws of Fla. (creating section 812.014(2)(c)13, Florida Statutes (2012)). As proposed, the Court adds the phrase “controlled substance” as one of the types of stolen property listed, and provides for identifying the controlled substance by name and as a “controlled substance” within the instruction. These changes are consistent with the legislative changes to section 812.014(2)(c)13.

Accordingly, we hereby authorize for publication and use the instructions as they appear in the attached appendix. In authorizing the publication and use of these instructions, 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 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. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

11.10(c) LEWD OR LASCIVIOUS MOLESTATION

§ 800.04(5), Fla. Stat.

To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.

1. (Victim)

a. was 12 years of age or older but less than 16 years of age.

b. was less than 12 years of age.

Give 2a or 2b as applicable.

2. (Defendant),

a. in a lewd or lascivious manner, intentionally in a lewd or lascivious — manner touched the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (victim).

b. in a lewd or lascivious manner, intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).

Give 3a or 3b as applicable.

3. (Defendant)

a. was 18 years of age or older at the time of the offense.

b. was less than 18 years of age at the time of the offense.

Definition.

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.

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

The defendant’s ignorance of victim’s age, victim’s misrepresentation of [his][her] age, or the defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged.

Lesser Included Offenses

_LEWD OR LASCIVIOUS MOLESTATION — 800.04(5)_ CATEGORY ONE CATEGORY TWO_FLA. STAT. INS. NO, None _Attempt_777.04(1)_51._ _Assault_784.011_81_ Battery_784.03&3 Unnatural and lascivious act 800.02 11.8

Comment

This instruction was adopted in 2008 [998 So.2d 1138] and amended in 2013.

13.1 BURGLARY

§ 810.02, Fla. Stat.

Give if the information or indictment charges entering with the intent to commit an offense:

To prove the crime of Burglary, the State must prove the following [two] [three] elements beyond a reasonable doubt:

1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).

2. At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [ (the crime alleged) ] [an offense other than burglary or trespass] [-(the crime alleged)-} in that [structure] [conveyance].

The offense intended cannot be trespass or burglary.

Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. See State v. Hicks, )21 So.2d 510 (Fla.1982), and State v. Waters, ⅛36 So.2d 66 (Fla.1983).

3. [ (Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]

Give if applicable.

If the [license] [invitation] to enter was obtained by (defendant’s) trick or fraud or deceit, then the [license] [invitation] to enter was not valid.

Give if applicable.

If (defendant) entered premises that were open to the public, but then entered an area of the premises that [he][she] knew or should have known was not open to the public, (defendant) committed a burglary if [he][she] entered that non-public area with the intent to commit [ (the crime alleged) ] [an offense other than burglary or trespass] [(the crime alleged)-} in that non-public area.

Give if applicable. § 810.07 Fla. Stat.

You may infer that (defendant) had the intent to commit a crime inside a [structure] [conveyance] if the [entering] [attempted entering] of the [structure] [conveyance] was done stealthily and without the consent of the owner or occupant.

Give if applicable.

The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant, with the intent to commit a crime, extends any part of [his][her] body into the [structure] [conveyance].

Give if the information or indictment charges remaining with the intent to commit an offense:

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

1. (Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession

of (person alleged).

2. (Defendant), after entering the [structure] [conveyance], remained therein

Give 2a, 2b, or 2c as applicable.

a. surreptitiously and with the intent to commit [(the crime alleged) ] [an offense other than burglary or trespass] [-(the — cr-ime—alleged) ] inside the [structure][conveyance].

b. after permission to remain had been withdrawn and with the intent to commit [ (the crime alleged) ] [an offense other than burglary or trespass] [ (the crime alleged)-] inside the [structure] [conveyance].

c. with the intent to commit or attempt to commit a [forcible felony] [ (the forcible felony alleged) ] inside the [structure] [conveyance].

The offense intended, cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat.

Proof of intent.

The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.

Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit [ (the crime alleged) ] [an offense other than burglary or trespass] [ (the crime alleged) ], the defendant must be found not guilty of burglary.

Proof of possession of stolen property.

Proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince you beyond a reasonable doubt that the defendant committed the burglary.

Definitions; give as applicable.

§ 810.011(1), Fla. Stat.

“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.

§ 810.011(3), Fla. Stat.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.

Burglary enhancements:

With an assault.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) assaulted any person. An assault is an intentional and unlawful threat, either by word or act, to do violence to another, at a time when the defendant appeared to have the ability to carry out the threat and [his][her] act created a well-founded fear in the other person that the violence was about to take place.

With a battery.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) battered any person. A battery is an actual and intentional touching or striking of another person against that person’s will or the intentional causing of bodily harm to another person.

While armed.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) was armed or armed [himself] [herself] within the [structure] [conveyance] with [explosives] [a dangerous weapon].

Definitions. Give as applicable. § 790.001(5), Fla. Stat. See exceptions in § 790.001(5)(a)-(d), Fla. Stat.

“Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators.

A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm. It is not necessary for the State to prove that the defendant intended to use or was willing to use the weapon in furtherance of the burglary in order for a weapon to constitute a “dangerous weapon.”

To “arm” oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing the burglary.

Structure or conveyance is a dwelling.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the [structure] [conveyance] [entered] [remained in] was a dwelling.

Definition. Give as applicable.

“Dwelling” means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of burglary, a “dwelling” includes an attached porch or attached garage.

Human being in structure or conveyance.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, there was another human being in the [structure] [conveyance], at the time [he][she] [entered] [remained in] the [structure] [conveyance].

Offense intended is theft of a controlled substance.

If you find (defendant) guilty of burglary, you must also determine whether the State has proved beyond a reasonable doubt that the offense intended to be committed therein was theft of a controlled substance. Pursuant to Florida law, (name of controlled substance) is a controlled substance. A theft occurs when a person knowingly and unlawfully obtains or uses or endeavors to obtain or use the property of the victim and does so with the intent to, either temporarily or permanently, deprive the victim of his or her right to the property or any benefit from it or to appropriate the property of the victim to his or her own use or to the use of any person not entitled to it.

Dwelling or structure with use of motor vehicle or damage.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a [dwelling] [structure] and

1. used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damaged the [dwelling] [structure].

or

2. caused damage to the [dwelling] [structure] [property within the [dwelling] [structure]], in excess of $1,000.

Authorized emergency vehicle.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the conveyance [entered] [remained in] was an authorized emergency vehicle.

Definition. See § 316.003, Fla. Stat.

An “authorized emergency vehicle” is fa vehicle of the fire department (fire patrol), or — police vehicles,} {and such ambulances and ©^-emergency vehicles of {municipal departments,} {public service corporations operated by private corporations,} {the Department of Environmental Protection, the Department of Health, or the Department of Transportation,} {and the Department of Corrections]] that is as are designated or authorized by their respective department; or the chief of police of an incorporated city, or any sheriff of a county.

State of emergency.

The definitions of structure, dwelling, and conveyance are different for counties where a state of emergency has been declared under chapter 252. See § 810.011(1), (2), and (3), Fla. Stat.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether

1. the burglaiy was committed within a county that was subject to a state of emergency that had been declared by the governor under chapter 252, the “State Emergency Management Act,”

and

2. the perpetration of the burglary was facilitated by conditions arising from the emergency.

Definition.

The term “conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.

§ 810.011(h), Fla. Stat.

An act is committed “in the course of committing” if it occurs in the attempt to commit the offense or in flight after the attempt or commission.

Lesser Included Offenses

Comment

When the compounded offense of burglary with an assault or burglary with a battery is charged and the jury convicts on the lesser included offense of trespass, the jury can also consider a second conviction on the lesser included offenses of assault or battery depending on the crime charged. See Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA2005).

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1997 [697 So.2d 84], 2003 [850 So.2d 1272], 2007 [962 So.2d 310],and 2008 [986 So.2d 563], and 2013. It should be given for offenses committed after July 1, 2001. — See § 810.02, Fla.Stat.(2002). — For guidance on instructions--for burglary offenses committed between- February 2000 and before July 1, 2001, see State v. Ruizr-863 So.2d 1205 (Fla.2003), and Bumes v. State, 861 So.2d 78 (Fla.2003).-

14.1 THEFT

§ 812.014, Fla. Stat.

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

1. (Defendant) knowingly and unlawfully [obtained or used] [endeavored to obtain or to use] the (property alleged) of (victim).

2. [He][She] did so with intent to, either temporarily or permanently,

a. [deprive (victim) of [his][her] right to the property or any benefit from it.]

b. [appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it.]

Degrees. Give as applicable.

If you find the defendant guilty of theft, you must also determine if the State has proved beyond a reasonable doubt whether:

a. [the value of the property taken was $100,000 or more.]

b. [the value of the property taken was $20,000 or more but less than $100,000.]

c. [the value of the property taken was $10,000 or more but less than $20,000.]

d. [the value of the property taken was $5,000 or more but less than $10,000.]

e. [the value of the property taken was $300 or more but less than $5,000.]

f. [the value of the property taken was $100 or more but less than $300.]

g. [the value of the property taken was less than $100.]

h. [the property taken was a semitrailer that was deployed by a law enforcement officer.]

i. [the property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]

j. [the property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]

k. [the property taken was emergency medical equipment valued at $300 or more that was taken from [a licensed facility] [an emergency medical aircraft or vehicle].]

l. [the property taken was law enforcement equipment valued at $300 or more that was taken from an authorized emergency vehicle.]

m. [ (defendant), individually or in concert with one or more persons, coordinated the activities of another in committing the theft and the value of the property taken was more than $3,000.]

n. [the stolen property was [a will, codicil, or other testamentary instrument][a firearm] [a motor vehicle] [a commercially farmed animal] [an aquaculture species raised at a certified aquaculture facility] [a fire extinguisher] [2,000 or more pieces of citrus fruit] [taken from a legally posted construction site] [a stop sign] [anhydrous ammonia] [a controlled substance. Under Florida law, (name of controlled, substance) is a controlled substance.]]

o. [the value of the property taken was $100 or more but less than $300, and was taken from [a dwelling] [the unenclosed curtilage of a dwelling].]

Give if applicable but only in cases of grand theft. § 812.01I(2)(a)3, Fla. Stat.

If you find the defendant guilty of theft, you must also determine if the State has proved beyond a reasonable doubt whether:

p. [in the course of committing the theft, (defendant) used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the theft and thereby damaged the real property of another.]

q. [in the course of committing the theft, (defendant) caused more than $1,000 in damage to the [real] [personal] property of another.]

State of emergency. Applies only to elements b, c, d, j, k and l above.

If you find (defendant) guilty of theft, you must also determine if the State has proved beyond a reasonable doubt whether:

r.[the theft was committed within a county that was subject to a state of emergency that had been declared by the governor under Chapter 252, the “State Emergency Management Act”

and

the perpetration of the theft was facilitated by conditions arising from the emergency.]

Inferences. Give if applicable. § 812.022(1), Fla. Stat.

Proof that a person presented false identification, or identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft.

§ 812.022(2), Fla. Stat.

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

§ 812.022(3), Fla. Stat.

Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

§ 812.022(1), Fla. Stat.

Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

§ 812.022(5), Fla. Stat.

Proof that a dealer who regularly deals in used property possesses stolen property upon which a name and phone number of a person other than the offer- or of the property are conspicuously displayed gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.

§ 812.022(6), Fla. Stat.

Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.

Definitions. Give if applicable.

§ 316.003, Fla. Stat.

“Authorized emergency vehicles” are vehicles of the fire department (fire patrol), police vehicles, and such ambulances and emergency vehicles of municipal departments, public service corporations operated by private corporations, the Department of Environmental Protection, the Department of Health, the Department of Transportation, and the Department of Corrections as are designated or authorized by their respective department or the chief of police of an incorporated city or any sheriff of any of the various counties.

§ 812.012(1), Fla. Stat.

“Cargo” means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility.

§ 812.014(2), Fla. Stat.

“Conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.

§ 810.011(2), Fla. Stat.

“Dwelling” means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of theft, a “dwelling” includes an attached porch or attached garage.

§ 812.014(2)(b)3, Fla. Stat.

“Emergency medical aircraft or vehicle” means any aircraft, ambulance or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law.

§ 812.014(2)(b)3, Fla. Stat.

“Emergency medical equipment” means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies.

§ 395.002(10), Fla. Stat.

“Emergency service and care” means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

§ 812.014(2) (b)4, Fla. Stat., and § 94-3.10, Fla. Stat.

“Law enforcement equipment” means any property, device, or apparatus used by a law enforcement officer in the officer’s official business. A law enforcement officer is any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

§ 810.09(2)(d), Fla. Stat.

If the construction site is greater than one acre in area, see § 810.09(2) (d)l, Fla. Stat., and § 810.011(5)(a), Fla. Stat.

A “legally posted construction site” means a construction site of one acre or less in area with a sign prominently placed on the property where the construction permits are located, in letters no less than two inches in height, that reads in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

§ 395.002(17), Fla. Stat.

“Licensed facility” means a hospital, ambulatory surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration.

See chapter 395, Fla. Stat.

§ 810.09(l)(b), Fla. Stat.

“Unenclosed curtilage” means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.

§ 812.012(3), Fla. Stat.

“Obtains or uses” means any manner of

a. Taking or exercising control over property.

b. Making any unauthorized use, disposition, or transfer of property.

c. Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

d. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, deception; or other conduct similar in nature.

“Endeavor” means to attempt or try.

§ 812.012^), Fla. Stat.

“Property” means anything of value, and includes:

[real property, including things growing on, affixed to and found in land.]

[tangible or intangible personal property, including rights, privileges, interests, claims [services.]

§ 812.012(6), Fla. Stat.

“Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes:

[repairs or improvements to property.]

[professional services.]

[private, public or government communication, transportation, power, water, or sanitation services.]

[lodging accommodations.]

[admissions to places of exhibition or entertainment.]

§ 812.012(10), Fla. Stat.

“Value” means the market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $100.

Theft of an Instrument. Give if applicable.

In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible.

In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

Theft of a Trade Secret. Give if applicable.

The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret.

Theft Pursuant to One Scheme. Give if applicable.

Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be added together to determine the total value of the theft.

Lesser Included Offense

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d-985],-1987 [508 So.2d 1221],-1-989- [543 So.2d 1205], 1992 ¿603 — goJd-1-1-75], 2003 [850 So.2d 1272], 2005 [911 So.2d 766 and 91-5-So.2d 609] and 200⅜

It is error to inform the jury of a prior theft conviction. Therefore, if the information or indictment contains an allegation of one or more prior theft convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of a theft, the historical fact of a previous theft conviction shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [508 So.2d 12211, 1989 [543 So.2d 12051, 1992 [603 So.2d 11751, 2003 F850 So.2d 12721, 2005 [911 So.2d 766 and 915 So.2d 6091,

      . On November 27, 2012, the Court granted the Committee's motion to withdraw its proposal to amend jury instruction 7.11 — Penalty Proceedings, Capital Cases.

      . 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/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.