author: PER CURIAM. POLSTON, J.,

text:
    Howard Steven AULT, Appellant, v. STATE of Florida, Appellee.
    No. SC14-1551
    Supreme Court of Florida.
    [March 9, 2017]

      Young T. Tindall, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

Howard Steven Ault, a prisoner under sentence of death, appeals from an order denying a motion to vacate convictions for first-degree murder and sentences of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we affirm the postconvietion court’s denial of postconvietion relief on Ault’s guilt phase claims and do not address his penalty phase claims because Ault is entitled to a new penalty phase under Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

FACTS AND PROCEDURAL HISTORY

The facts of this case were set forth in Ault’s first direct appeal:

Howard Steven Ault was charged with two counts of first-degree murder in the deaths of two young sisters, eleven-year-old Deanne Mu’min and seven-year-old Alicia Jones. Ault was also charged with two counts of sexual battery on a child under twelve years old, two counts of kidnaping a child under thirteen years old, and two counts of aggravated child abuse.
The evidence and testimony presented at trial established the following facts. The two victims were living with their mother Donna Jones and their two-year-old sister in a pop-up trailer attached to the family car. When the mother could afford the camping fee, the family would camp at John Easterlin County Park in Broward County. The family had been camping at the park on and off for many months. Ault met the family at Easterlin Park a few days before the girls disappeared. He offered to let the family shower at his house, and gave Jones a hand-drawn map to his house. Ault also gave the two sisters a ride in his truck the same day and their mother scolded them for getting in his track. A few days before the two sisters disappeared, a witness saw Ault talking to the girls and buying them snacks at a convenience store which the girls passed on their way home from school.
On Monday, November 4, 1996, the two girls left school at 2:05 p.m. Witnesses saw the girls walking home, but the girls never arrived at the park. Their mother looked for them at school and eventually went to Ault’s house later in the evening. Ault stated that he had not seen the girls and asked the mother not to call the police as he had some problems with the police in the past. The mother went to her cousin’s house and called the police. The police went to Ault’s apartment and asked whether he had seen the girls. Ault stated that he had not seen the girls and allowed the officers to look around his apartment.
Ault and his wife voluntarily agreed to come to the Oakland Park Police Department to give sworn statements the next day. Detective William Rhodes, the lead officer on the case, interviewed Ault and his wife at the police department. Ault stated that he had only met the girls once a few days earlier in Easterlin Park, and that the girls had never been in his track. Shortly after this interview, Officer Deborah Cox of the Broward County Sheriffs Department arrested Ault on an unrelated charge of attempted sexual battery of a minor that had occurred eleven months earlier. Ault was taken to the Broward County jail. In the meantime, Rhodes located witnesses who had seen the girls in Ault’s truck, had seen Ault with the girls on several occasions, and had seen Ault and his vehicle at the convenience store at the approximate time that the girls were walking home from school on the day they disappeared, all of which contradicted Ault’s voluntary statement.
The next day, Rhodes visited Ault at the Broward County jail and explained that his investigation of the girls’ disappearance indicated that Ault had lied at the initial interview. When Ault indicated his desire to speak to Rhodes, Rhodes read Ault his Miranda rights and Ault waived these rights. Ault confessed that he had killed the girls within an hour after he had taken them to his apartment. Ault agreed to show Rhodes where the bodies were. Ault led the police to his apartment, confessed that the girls were in the attic, and explained that the officers who had looked around the night before had not looked in the attic. Ault signed a consent-to-search form and the police found the girls’ bodies in the attic as Ault had stated..
Ault was taken to the Oakland Park Police Department and insisted that he would only speak to Rhodes. Ault then gave a taped confession in which he revealed the following details. Ault planned to sexually assault the girls when he met them in front of the convenience store about 2:30 p.m. on November 4, 1996. He offered the girls a ride, and lured them to his house with the promise of candy. He sexually assaulted eleven-year-old Deanne with his finger and also penetrated her with his penis. When Deanne started to scream and fight, Ault strangled her until she stopped screaming. He then strangled seven-year-old Alicia to keep her from telling anyone about the incident, but he did not sexually assault her. Ault redressed Deanne and put the bodies of both girls in his attic. Ault said that he killed the girls because he was afraid they would tell someone what he had done. Because he was already on community control for sexual assault on a child under twelve years of age, he feared that he would go to jail for at least twenty-five years. He also stated that he thought about the trauma his wife had experienced when he was previously arrested and did not want to put her through that trauma again.
The medical examiner, testified that both girls died from manual strangulation, that there was bruising and hemorrhaging of Deanne’s vaginal tissue, that Deanne had been dead for approximately two days when her body was found, and that, based on the decomposition of her body, Alicia had died twelve to eighteen hours after Deanne. Based on the lesser state of decomposition of Alicia’s body and a white foamy substance coming from her mouth, the medical examiner stated that Alicia appeared to have been alive, albeit comatose, at the time she was placed in the attic.
The defense rested without presenting any evidence, except for two documents: Ault’s notice to invoke his rights to counsel and to remain silent in the unrelated attempted sexual battery case, and the court order acknowledging that invocation of rights. The jury found Ault guilty on all charges. At the request of defense counsel, the penalty phase proceeding was scheduled approximately six weeks after the guilt phase concluded.
After the presentation of penalty phase evidence and testimony by witnesses for both the State and the defense, the jury recommended death on both counts of murder by a nine-to-three vote. The trial judge followed the jury’s recommendation and imposed two death sentences. The judge found six aggravating circumstances: Ault was previously convicted of a felony and placed on community control (great weight); Ault was previously convicted of a violent felony (great weight); the murders were committed while Ault was engaged in sexual battery, aggravated child abuse, and kidnapping (great weight); the murders were committed to avoid arrest (full weight); the murders were heinous, atrocious, or cruel (great weight); the victims were less than twelve years of age (great weight). The court found no statutory mitigators and six nonstatuto-ry mitigators: family relations and troubled childhood (little weight); prenatal care (little, if any, weight); sexual and physical abuse (some weight); organic brain damage (little weight); pedophilia and compulsive mental disorder (some weight); and remorse (some weight). The trial court concluded that the aggravating factors far outweighed the mitigating factors and that the circumstances of the case and Ault’s history placed the case in the category of the most aggravated and least mitigated of first-degree murders. Thus, the court sentenced Ault to death for both murders.
Ault appeals his convictions and sentences to this Court, raising nine issues on appeal. Ault contends that: (1) the trial court erred in denying his motion to suppress his statements to the police; (2) the trial court erred in granting the State’s challenge for cause of juror Reynolds; (3) the trial court erred in denying his motion for a penalty phase mistrial based on the prosecutor’s questioning of witnesses about collateral crimes; (4) the trial court erred by not allowing a defense expert to express his opinion as to the applicability of a statutory mental mitigating factor; (5) the trial court erred in permitting two penalty phase witnesses to testify about hearsay evidence; (6) the trial court erred in denying his request to discharge penalty phase counsel; (7) the aggravating circumstance that the murder was committed in the course of a specified felony is unconstitutional; (8) his death sentence violates the principles announced in Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, (2000); and (9) the trial court erred in sentencing him under the 1995 sentencing guidelines for the non-capital offenses and in imposing a departure sentence without contemporaneous written reasons for the departure. The State addresses one issue relating to this Court’s proportionality review of the death sentences on appeal. The State contends that Ault’s two death sentences are proportional in light of the six aggravating factors, no statutory mitigating factors, and the weak nonstatutory mitigating factors.

Ault v. State, 866 So.2d 674, 677-79 (Fla. 2003) (hereinafter “Ault I”). This Court affirmed Ault’s convictions, vacated his death sentence, and remanded for a new penalty phase based on the error in jury selection. Id. at 683-88. This Court also remanded for resentencing of the non-capital counts for use of proper guidelines. Id. at 688.

Resentencing began July 30, 2007:

The State began its case by presenting evidence of Ault’s criminal history. Three witnesses testified that as young girls they were sexually assaulted by Ault, the first in 1988 when she was twelve years old, the second in 1994 when she was seven years old, and the third in 1995 when she was eleven years old. The last of these three witnesses testified that after the assault Ault told her that what he did was wrong and that she needed to call the police. The jury was also read the testimony of another witness, a police officer, who had testified at the previous trial that Ault and another man attacked him at knifepoint in 1986.
The State also presented evidence relating to the deaths of Deanne Mu’min and Alicia Jones. The original crime scene investigator was called to identify photos of the locations in which the events surrounding the offenses took place. The medical examiner who conducted the victims’ autopsies was also called to testify regarding the causes of death. Finally, the State called William Rhodes, who recounted his role in the investigation and identified the audio recording of his interrogation of Ault, which was played to the jury. The State also called witnesses to give victim impact evidence, including the victims’ mother, one of the victims’ teachers, and other individuals who knew their family.
At the close of the State’s ease, the defense presented three witnesses to establish mitigation. The first witness, psychiatrist Dr. David Kramer, testified that he had conducted a two-hour psychiatric screening of the defendant and had reviewed mental health reports on Ault written by other doctors. Regarding Ault’s family background, Dr. Kramer testified that Ault’s family moved frequently when he was a child and that Ault’s parents had a dysfunctional marriage. According to Dr. Kramer, Ault reported that his older brother began a pattern of forced sexual abuse when he was seven years old, and that his brother sometimes used a knife or gun. Dr. Kramer testified that such experiences would have a negative effect on a child’s mental health and sexual development, and diagnosed Ault with complex post-traumatic stress disorder. Dr. Kramer also diagnosed Ault with pedophilia, which he defined as an intense persistent arousal to inappropriate stimuli, being prepubescent children in an adult, and found that Ault had a history of alcohol abuse and dependency and some history of other substance use.
The next defense witness, neurologist Dr. David Ross, testified that he conducted various tests on Ault and concluded that Ault suffered from deficiencies in the frontal and temporal lobes of his brain. Dr. Ross testified that someone with these deficiencies may have problems with the execution of complex ideas, impaired judgment, difficulties with impulse control and emotional issues, and possible hypersexuality. He also stated that these deficiencies are consistent with individuals diagnosed with pedophilia.
The final witness presented by the defense was Robert Buckley, a private investigator. Buckley testified that he spoke with Ault’s mother, Barbara [Mat-son], who told him that Ault no longer had a relationship with his older brother Charles due to the sexual abuse that occurred when Ault was younger. According to Buckley, [Matson] stated that she was aware of the molestation but explained that the matter was not talked about in their family. At the end of Buckley’s testimony, the defense rested.
In rebuttal, the State read to the jury the transcript testimony of Dr. Sherry [Bourg] Carter, a psychologist who had testified at Ault’s previous trial. Dr. Carter testified that, at the time of her initial meeting with Ault, Ault reported that he had heard voices and suffered from hallucinations in the past, but that he was on medications to control these conditions. However, she found that his descriptions of his symptoms were inconsistent with each other and were also not consistent with medical knowledge regarding hallucinations. Based on interviews with Ault and a review of other records, Dr. Carter diagnosed Ault with severe psychopathy. Dr. Carter explained that this was a personality disorder rather than a mental illness. She defined a major mental illness as a condition that causes someone to be out of touch with reality or to lose control of his or her thought process. By contrast, individuals with personality disorders have reasonable control over their actions, but are impaired in their ability to relate to others, experience emotion, or behave in a socially appropriate manner. Such individuals, she explained, view others as objects rather than as people and have difficulty experiencing remorse. Overall, Dr. Carter concluded that Ault was faking mental illness in order to avoid responsibility for his actions. Dr. Carter also found that Ault was inconsistent in his reports of the sexual abuse he claimed to have suffered as a child and that, because he had given so many different versions of the events, it was difficult to evaluate whether any of his claims were truthful.
At the end of the proceedings, the jury recommended death by a vote of nine to three for the murder of Deanne Mu’min and recommended death by a vote of ten to two for the murder of Alicia Jones. In his written sentencing order, the trial judge found six aggravating circumstances applicable to both murders: (1) Ault was previously convicted of a felony and placed on community control (significant weight); (2) Ault was previously convicted of another capital felony or of a felony involving the use or threat of violence to another person (great weight); (3) the capital felony was committed while Ault was engaged in the commission of or an attempt to commit the crimes of sexual battery, aggravated child abuse, and kidnapping (great weight); (4) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest (significant weight); (5) the victim of the crime was a person less than twelve years of age; (6) the capital felony was especially heinous, atrocious, or cruel (HAC) (maximum weight).
The court found no statutory mitigating circumstances and three nonstatuto-ry mitigating circumstances: (1) Ault was raised in a dysfunctional family (little weight); (2) Ault was not adequately supervised by the Department of Corrections (little weight); (3) Ault told a victim of a prior sexual assault to call the police and that what he did was wrong (some weight). The court determined that the aggravating circumstances far outweighed the mitigating circumstances, noting specifically that the single aggravator of the murders being especially heinous, atrocious, or cruel was of such a magnitude as to overwhelm the mitigators. Following the jury’s recommendation, the trial judge sentenced Ault to death for each count of first-degree murder, and to fifteen years in prison for each of the remaining offenses. Ault appeals, raising numerous claims of error.

Ault v. State, 53 So.3d 175, 184-86 (Fla. 2010) (footnotes omitted) (hereinafter “Ault II”).

In the direct appeal of his new penalty phase, Ault argued that the trial court erred, in rejecting mitigating factors. This Court agreed, but found the error harmless beyond a reasonable doubt given the extensive aggravation in Ault’s case. Id. at 195-96, Ault also challenged his sentences based on proportionality, the admission of photographic evidence, the weight given to the jury’s recommendation, the failure to prepare a Presentencing Investigation Report, Ault’s exclusion from a pretrial conference, a motion to disqualify the judge based on bias, the denial of Ault’s pro se motions, and the constitutionality of Florida’s death penalty scheme. Id. at 196-207. This Court affirmed his sentences of death. Id. at 207. The United States Supreme Court denied certiorari on October 3, 2011. Ault v. Florida. 565 U.S. 871, 132 S.Ct. 224, 181 L.Ed.2d 124 (2011).

Ault filed an initial motion for postcon-viction relief on September 18, 2012, and an amended motion on July 19, 2013, alleging that both guilt and penalty phase counsel were ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In his initial and amended rule 3.851 postconviction motions, Ault alleged the following distinct claims: (1) guilt phase counsel Kevin Kulick’s performance was deficient because he made omissions and conceded guilt in the opening statement, failed to cross-examine witnesses, and failed to investigate defenses such that Ault was prejudiced; (2) penalty phase counsel Mitchell Polay was ineffective for failing to raise rejected statutory mental health mitigation as nonstatutory during the 2007 penalty phase; (3) Mr. Polay was ineffective for failing to investigate and raise Ault’s low IQ as mitigation; (4) Mr. Polay was ineffective for failing to adequately prepare Dr. Kramer for trial; (5) Mr. Polay was ineffective for failing to investigate and present mitigation; (6) Mr. Polay was ineffective for allowing the State to read Dr. Bourg Carter’s 1999 penalty phase testimony into evidence rather than seeking her live testimony in the 2007 penalty phase; and (7) Mr. Polay was ineffective for failing to move the trial court for dismissal, and appellate counsel was ineffective for failing to make a claim based on Ault’s demands for speedy trial. The postconviction court granted an evi-dentiary hearing on a portion of the claim relating to expert witness Dr. Bourg Carter’s prior testimony and summarily denied the other claims. In this appeal, Ault argues that the postconviction court erred in denying each of the claims, except Ault does not challenge the denial of the claim related to his demands for speedy trial.

INEFFECTIVE ASSISTANCE OF GUILT PHASE COUNSEL

When evaluating an initial rule 3.851 postconviction, motion, an evidentiary hearing must be held if the movant makes a facially sufficient claim requiring a factual determination. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852 & 3.993, 772 So.2d 488, 491-92 n.2 (Fla. 2000) (hereinafter “Amendments I”). Because the decision to grant an evidentiary hearing on a rule 3.851 motion is based on written materials before the court, the court’s ruling is a pure question of law this Court reviews de novo. See State v. Coney, 845 So.2d 120, 137 (Fla. 2003). When reviewing the summary denial of an initial rule 3.851 motion, this Court must accept the movant’s factual allegations as true and affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim or that there is no issue of material fact to be determined. See generally Amendments I, 772 So.2d at 491-92 n.2.

Where there is any question that a facially sufficient claim in an initial rule 3.851 motion inquires a factual determination, this Court presumes an evidentiary hearing is required. See id. This Court will affirm a summary denial “only when the claim is legally insufficient, should have been brought on direct appeal, or [is] positively refuted by the record.” Jackson v. State, 127 So.3d 447, 460 (Fla. 2013) (quoting Reynolds v. State, 99 So.3d 459, 471 (Fla. 2012)); see also Boyd v. State, 200 So.3d 685, 699 (Fla. 2015). Conclusory, nonspecific allegations are insufficient to obtain an evidentiary hearing on ineffective assistance of counsel in capital cases. See Wilcox v. State, 143 So.3d 359, 388-89 (Fla. 2014); Doorbal v. State, 983 So.2d 464, 482-83 (Fla. 2008).

This Court has determined that, in order to succeed on an ineffective assistance of counsel claim under Strickland, two elements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court defers to the circuit court’s factual findings that are supported by competent, substantial evidence, and reviews the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004).

There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. This Court must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id In Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

In the first claim of Ault’s amended motion, Ault argued that guilt phase counsel Kevin Kulick mounted a constitutionally insufficient defense. Ault alleged Mr. Kulick’s performance was deficient for conceding guilt when he told the jury in opening statement about Ault’s prior crimes, including arrest for rape and sexual battery of a child, and about a news media interview Ault gave. Ault claimed Mr. Kulick’s conduct was deficient when he told the jury Ault is borderline intellectually disabled and presented no supporting evidence in the guilt phase. Ault also alleged that counsel was deficient for discussing a voluntary intoxication defense, for telling the jury that an instruction on voluntary intoxication would be given, and for ultimately not securing the instruction. Ault further argued that Mr. Kulick was deficient for only cross-examining State witness Detective William Rhodes and resting without presenting any evidence. As to Strickland prejudice, Ault alleged generally that Mr. Kulick’s alleged deficiencies collectively created a reasonable probability that the outcome of the guilt phase would be different, undermining confidence in the verdict such that Ault was prejudiced.

We affirm the postconviction court’s summary denial of this claim because the record conclusively refutes the existence of Strickland prejudice. See Boyd, 200 So.3d at 699. Regardless of what further investigation, cross-examination, or alternative defenses Mr. Kulick might have conducted, the jury would still have heard Ault’s detailed confession, in which he described how he tested the victims’ trust by giving them a ride before the assault, the details of the assault, and how he believed he had to kill the victims so that he would not go back to jail and further traumatize his wife. In light of the evidence of Ault’s guilt, there is no reasonable probability that the alternative defense strategies Ault suggests in this claim undermine confidence in his convictions. Because Ault failed to establish prejudice, we need not make a specific ruling on the performance component of the Strickland ineffective assistance test. Maxwell, 490 So.2d at 932. Therefore, we deny relief on this claim.

HURST RELIEF

On remand from the United States Supreme Court, this Court interpreted Hurst v. Florida to “require[ ] that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.” Hurst v. State, 202 So.3d 40, 44 (Fla. 2016) (hereinafter “Hurst”). These findings “include the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances.” Id. This Court has determined that Hurst applies to a sentence that was final in 2009. See Mosley v. State, No. SC14-436, 209 So.3d 1248, 1284, 2016 WL 7406506 (Fla. Dec. 22, 2016). Ault’s sentence was final in 2011. See Ault v. Florida, 565 U.S. at 871, 132 S.Ct. 224. Therefore, Hurst is also applicable to Ault’s case, and this Court must examine whether any Hurst error was harmless beyond a reasonable doubt.

We explained the appropriate standard for harmless error review in Hurst:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” [State v.] DiGuilio, 491 So.2d [1129,] 1137 [Fla. 1986], and the State bears.an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst’s death sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless.error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So.2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So.3d at 68 (alteration in original). In other words, it must be clear beyond a reasonable doubt that a rational jury would have found all facts necessary to impose death unanimously and would have determined that death is the appropriate sentence. In Ault’s case, there is no such clarity for either recommendation of death.

After resentencing, the jury recommended death for the murder of Deanne Mu’min by a vote of nine to three and for the murder of Alicia Jones by a vote of ten to two. The circuit court agreed with the jury, finding three nonstatutory mitigators given some or little weight and six statutory aggravators, each given great, significant, or maximum weight. In light of the nonunanimous recommendations of death and failure of the jury to make any findings as to the aggravating and mitigating factors, any attempt to discern what jurors would have done if properly instructed under Hurst is purely speculative. Therefore, we cannot conclude that the Hurst error in Ault’s resentencing was harmless beyond a reasonable doubt.

CONCLUSION

Based on the foregoing, we affirm the postconviction court’s denial of relief on Ault’s ineffective assistance of guilt phase counsel claim, we do not address his remaining ineffective assistance of penalty phase counsel claims, and we grant relief under Hurst. Accordingly, we vacate his sentences of death and remand his case for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.

CANADY and LAWSON, JJ., concur.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant' to Hurst.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The circuit court grouped the seventy-one nonstatutory mitigators proposed by Ault into these six categories.

      . In his initial rule 3.851 postconviction motion, Ault alleged the following claims; (1) penalty phase counsel Mitchell Polay was ineffective for failing to object to Dr. Bourg Carter’s 1999 testimony being read into evidence and failing to prepare during the 2007 penalty phase; (2) Mr. Polay was ineffective for failing to raise rejected statutory mitigation as non-statutory during the 2007 penalty phase; (3) Mr. Polay was ineffective for failing to investigate Ault’s low IQ which should have been found as a mitigating factor; and (4) Mr. Polay was ineffective for failing to adequately prepare Dr. Kramer for trial. Ault alleged the following claims in his amended rule 3.851 postconviction motion; (1) guilt phase counsel Kevin Kulick’s performance was deficient because he made omissions and conceded guilt in opening statement, failed to cross-examine witnesses, and failed to investigate defenses such that Ault was prejudiced; (2) Mr. Polay was ineffective for failing to move the trial court for dismissal, and appellate counsel was ineffective for failing to make a claim based on Ault’s demands for speedy trial; (3) Mr. Polay was ineffective for failing to object to Dr. Bourg Carter's 1999 testimony being read into evidence and failing to prepare during the 2007 penalty phase; (4) Mr, Polay was ineffective for failing to raise non-statutoiy mental health mitigation during the 2007 penalty phase;, and (5) Mr. Polay was ineffective for failing to investigate Ault’s low IQ, which should have been found as a mitigating factor.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2016-01.
    No. SC16-724
    Supreme Court of Florida.
    [March 9, 2017]
    Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
    Julianne M. Holt, Past President, Florida Public Defender Association, Inc., Public Defender, 13th Judicial Circuit, Tampa, Florida, Responding with Comments
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing amendments to seven existing standard criminal jury instructions and the addition of two new instructions. We have jurisdiction. See Art. V, § 2(a), Fla. Const.

The Committee proposes amending existing instructions 3.6(a) (Insanity); 5.1 (Attempt to Commit Crime); 5.2 (Criminal Solicitation); 5.3 (Criminal Conspiracy); 6.6 (Attempted Manslaughter by Act); 7.7 (Manslaughter); and 8.25 (Violation of a Condition of Pretrial Release from a Domestic Violence Charge). The Committee also proposes adding new instructions 3.6(p) (Abnormal Mental Condition) and 7.7(a) (Aggravated Manslaughter).

Before filing its report with the Court, the Committee published its proposals for comment. Upon consideration of the comments submitted, the Committee modified some of its proposals. The Committee did not republish its proposals.

After the Committee filed its report, the Court published the Committee’s proposals for comment. A comment was received from the Florida Public Defender Association regarding existing instructions 3.6(a) and 8.25, and new instruction 3.6(p). A response was filed by the Committee.

Having considered the Committee’s report, the comment filed, and the Committee’s response, we hereby authorize for publication and use amended instructions 3.6(a), 5.1, 5.2, 5.3, 6.6, 7.7, and 8.25, and new instructions 3.6(p) and 7.7(a), with the following modification. We amend the new comment to instruction 5.3 to include the phrase “renunciation remains a defense to conspiracy to commit a crime where some harm was done.” The phrase was omitted by the Committee, and its addition conforms the new comment for instruction 5.3 with the new comment added to instructions 5.1 and 5.2.

Accordingly, the instructions, as set forth in the appendix to this opinion, are authorized for publication and use. 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 in-forth in the appendix when this opinion be-structions as set shall be effective comes final.

It is so ordered.

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

LAWSON, J., did not participate.

Appendix

Appendix

3.6(a) INSANITY

An issue in this case is whether (defendant) was insane when the crime allegedly was committed.

A person is considered to be insane w'hen:

1. [He] [She] had a mental infirmity, disease, or defect.

2. Because of this condition

a. [he] [she] did not know' what [he] [she] was doing or its consequences or

b. although [he] [she] knew what [he] [she] was doing and its consequences, [he] [she] did not know' it was wrong.

Give-ifappUmbhr

A defendantwho-believ-ed that what- [he]-[she] was doing was morally right is not insane-if-the-defendant-lHaow that-what [he] [she] was doing violated societal standa-rds-or was against-tho4ftWr

All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue.

In determining the issue of insanity, you may consider the testimony of expert and nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but whether instead the defendant was insane at the time the crime allegedly was committed.

Give if applicable.

A defendant who believed that what fhel Ishel was doing was morally right is not insane if the defendant knew that what fhel Ishel was doing violated societal standards or was against the law.

Give if applicable.

Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is overcome by passion or temper.

*Give if avvlicable and if requested.

Although insanity is a defense, mental or psychiatric conditions not constituting insanity are not defenses to any crime in this case. Unless there is clear and convincing evidence that ('defendant') was insane at the time of the crimetsl alleged, any evidence of mental illness, an abnormal mental condition, or diminished mental capacity may not be taken into consideration to show that fhel fshel lacked the specific intent or did not have the state of mind essential to proving that The! fshel committed the crimefsl charged Tor anv lesser crime!.

Give if applicable.

If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise.

Give in all cases.

If you find that (defendant) committed the crime but you find by clear and convincing evidence that the defendant was insane, then you should And [him] [her] not guilty by reason of insanity.

If your verdict is that the defendant is not guilty by reason of insanity, that does not necessarily mean [he] [she] will be released from custody. T must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment or released.

Comments

I-f-dmgs-or alooh9-l-are-mvQlved;-se(3' Gimok v. &fe?fe-,-2Ql--So:2d 706 (Fla.

*This paragraph should be read only where it is applicable and appropriate under the facts of the case. “IDIiminished capacity is not a viable defense in Florida.” Evans v. State. 946 So. 2d 1, 11 (Fla. 2006): Lukehart v. State. 70 So. 3d 503, 515 (Fla. 2011). Evidence of an abnormal mental condition not constituting legal insanity is inadmissible “for the purpose of proving either that the accused could not or did not entertain the specific intent or state of mind essential to -proof of the offense, in order to determine whether the crime charged, or a lesser degree thereof, was in fact committed.” Chestnut v. State. 538 So. 2d 820 (Fla. 1989). In some cases, however, such evidence, or something that jurors might interpret as such evidence, might be admitted presumably for another purpose or might simnlv be obvious or apparent from the facts of the case. In such cases, it could be appropriate in the court’s discretion to give this instruction to avoid the -possibility of juror confusion.

See Instruction 3.6(p~) for an instruction regarding abnormal mental conditions not constituting insanity.

This instruction was adopted in 1981 [431 So.2d 600], and was amended in 1986 [483 So.2d 428], 1994 [636 So.2d 502], and 2006 1939 So. 2d 1052], and 2017.

3.6(nl ABNORMAL MENTAL CONDITION

*Give if applicable and if requested, and only if insanity is not an issue and if no notice of intent to rely on the defense of insanity has been filed. If insanity is an issue in the case, give instruction 3.6(a),

Mental illness, an abnormal mental condition, or diminished mental capacity is not a defense to any crime in this case. Any such evidence mav not be taken into consideration to show that the defendant lacked the specific intent or did not have the state of mind essential to proving that fhel [she! committed the crimefsl charged Tor anv lesser crime!.

Comments

*This instruction should be given only where it is applicable and appropriate under the facts of the case. ‘TD1 burnished capacity is not a viable defense in Florida.” Evans v. State. 946 So. 2d 1, 11 (Fla. 2006); Lukehart v. State. 70 So. 3d 503, 515 (Fla. 2011). Evidence of an abnormal mental condition not constituting legal insanity is inadmissible “for the purpose of proving either that the accused could not or did not entertain the specific intent or state of mind essential to proof of the offense, in order to determine whether the crime charged, or a lesser degree thereof, was in fact committed.” Chestnut v. State. 538 So. 2d 820 (Fla. 1989). In some cases, however, such evidence, or something that jurors might interpret as such evidence, might be admitted presumably for another purpose or might simply be obvious or apparent from the facts of the case. In such cases, it could be appropriate in the court’s discretion to give this instruction to avoid the possibility of juror confusion.

This instruction was adopted in 2017.

5.1 ATTEMPT TO COMMIT CRIME

§ 777,04(1), Fla.JStat.

Use when attempt is charged or is a lesser included offense.

[To prove the crime of Attempt to Commit (crime charged), the State must prove the following two elements beyond a reasonable doubt:]

Use when necessary to define “attempt” as an element of another crime fimeh-asfel-eny-murder).

[In order to prove that the defendant attempted to commit the crime of (crime charged), the State must prove the following beyond a reasonable doubt:]

1. (Defendant) did some act toward committing the crime of (crime attempted) that went beyond just thinking or talking about it.

2. [He] [She] would have committed the crime except that

a. [someone prevented [him] [her] from committing the crime of (crime charged).]

[or]

b. [[he] [she] failed.]

Give if applicable. Affirmative Defense. § 777.04(5)(a), Fla. Stat. Carroll v. State. 680 So. 2d 1065 (Fla. 3d DCA 1996). Ilarrimanv. State. 174 So. 3d 1044 (Fla. 1st DCA 2015).

It is aet-an-a defense to the crime of attempt to commit (crime charged) if the defendant abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known by the defendant that increased the probability of being apprehended.

If you find that the defendant proved by a preponderance of the evidence that ihel tshcl abandoned this! Iherl attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of ihisl iherl criminal purpose, you should find [him! iherl not guilty of fcrime attempted).

If the defendant failed to prove bv a preponderance of the evidence that Ihel [shel abandoned Ihisl [her! attempt to commit the offense or that Ihel ishel otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of Ihisl [her! criminal purpose, you should find fhiml fherl guilty of ('crime attempted') if all the elements of the charge have been proven beyond a reasonable doubt.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

As of November 2015. no case law addressed the issue of whether renunciation remanís a defense to an attempt to commit a crime where some harm was done.

This instruction was adopted in 1981 and amended in 2017.

5.2 CRIMINAL SOLICITATION

§ 777.04(2), Fla._Stat.

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

1. (Defendant) solicited (person alleged) to commit (offense solicited).

2. During the solicitation, (defendant)

[commanded]

[encouraged]

[hired]

[requested]

(person alleged) to engage in specific conduct, which would constitute the commission of (offense solicited) or an attempt to commit (offense solicited).

It is not necessary that the defendant do any act in furtherance of the offense solicited.

Define the crime solicited, If it is Burglary, also define crime that was object of the burglary. Also define "attempt" (see 5.1).

Definition

To “solicit” means to ask earnestly or to try to induce the-person solicited-to do the thing solicitcdanother person to engage in specific conduct.

Affirmative Defense. Give if applicable. § 777.04(5)(b), Fla. Stat. Carroll v. State. 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State. 174 So. 3d 1044 (Fla. 1st DCA 2015).

It is a defense to the charge of «Criminal «Solicitation if the defendant, after soliciting (person solicited) to commit the (offense solicited), persuaded (person solicited) not to do so, or otherwise prevented commission of the offense, under circumstances indicating a complete and voluntary renunciation of fhisl ilierl criminal purpose.

Renunciation is not complete and voluntary where the crime solicited was not completed because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known bv the defendant that increased the probability of being apprehended.

If you find that the defendant proved bv a preponderance of the evidence that fhel [shel persuaded ('person solicited) not to commit the (offense solicited), or otherwise prevented commission of the (offense solicited), under circumstances indicating a complete and voluntary renunciation of This! [her! criminal purpose, you should find fhiml fherl not guilty' of (“crime solicited).

If the defendant failed to prove bv a preponderance of the evidence that [hel fshel persuaded (person solicited) not to commit the (offense solicited), or that fhel [she! did not otherwise prevent commission of the (offense solicited"), under circumstances indicating a complete and voluntary renunciation of This! flier! criminal purpose, you should find [him! iherl guilty of (crime solicited! if all the elements of the charge have been proven beyond a reasonable doubt.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

As of November 2015, no case law addressed the issue of whether renunciation remains a defense to a solicitation to commit a crime where some harm was done.

This instruction was adopted in 1981 and amended in 2017.

5.3 CRIMINAL CONSPIRACY § 777.04(3), FlaJStat

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

1. The intent of (defendant) was that the offense of (object of conspiracy) would be committed.

If there is an issue as to whether the subject of the conspiracy was a crime, it may be necessary to define that crime.

2. In order to carry out the intent (defendant)

[agreed]

[conspired]

[combined]

[confederated]

with (person[s] alleged) to cause (object of conspiracy) to be committed either by them, or one of them, or by some other person.

It is not necessary that the

[agreement]

[conspiracy]

[combination]

[confederation]

to commit (object of conspiracy) be expressed in any particular words or that w'ords pass between the conspirators.

It is not necessary that the defendant do any act in furtherance of the offense conspired.

Affirmative Defense. Give if amlicable. $ 777.04(5)(c), Fla. Stat. Carroll v. State. 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State. 174 So. 3d 1044 (Fla. 1st DCA 2015).

It is a defense to the charge of «Criminal «Conspiracy that (defendant), after conspiring with one or more persons to commit the (object of conspiracy), persuaded (person alleged) not to do so, or otherwise prevented commission of the (object of conspiracy'), under circumstances indicating a complete and voluntary renunciation of fhisl iherl criminal purpose.

Renunciation is not complete and voluntary where the crime that was conspired to was not completed because of unanticipated difficulties. unexpected resistance, a decision to postpone the crime to another time, or circumstances known bv the defendant that increased the probability of being apprehended.

If you find that the defendant proved bv a preponderance of the evidence that The! Ishel persuaded (person alleged*) not to commit the (object of conspiracy'), or otherwise prevented commission of the (object of conspiracy'). under circumstances indicating a complete and voluntary renunciation of fhisl fherl criminal purpose, you should find Ihiml fherl not guilty of Conspiracy to Commit (mine of crime').

If the defendant failed to prove bv a preponderance of the evidence that fhel fshel persuaded ('person alleged*) not to commit the (object of conspiracy'). or that fhel fshel did not otherwise prevent commission of the fobject of conspiracy*), under circumstances indicating a complete and voluntary renunciation of fhisl fherl criminal purpose, you should find fhiml fherl guilty of Conspiracy to Commit (name of crime'), if all the elements of the charge have been proven beyond a reasonable doubt.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

As of November 2015. no case law addressed the issue of whether renunciation remains a defense to conspiracy to commit a crime where some harm. was done.

This instruction was adopted in 1981 and amended in 2017.

6.6 ATTEMPTED MANSLAUGHTER BY ACT

§§ 782.07 and 777.04, Fla. Stat.

To prove the crime of Attempted Manslaughter by Act, the State must prove the following element beyond a reasonable doubt:

(Defendant) intentionally committed an act [or procured the commission of an act], which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

However, the defendant cannot be guilty of Attempted Manslaughter by Act by committing a merely negligent act. Each of us has a duty to act reasonably and use ordinary care toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

It is not an attempt to commit-manslaughter if thc-defendant-abtindonod the flttcmpt-to-commit4ho-effen.se or otherwise-prevented its commission under circumstances-indicating-a-completo-nnd yoluntnry-renuneintion of [his] [hor]-criminal-purpe^er

Give only if procurement is alleged and proven.

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

In order to convict of Attempted 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 w hich would have caused death and was not justifiable or excusable attempted homicide, as I have previously ex-plained-thosetermsinstructed you. (The explanations of justifiable attempted homicide and excusable attempted homicide are in Instruction 6.1. Introduction to Attempted Homicide.)

Lesser Included Offenses

Comments

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

There is no crime of attempted ii^hintoi^maiislaughter' (16.⅛ manslaughter by culpable negligence. See Taylor v. State, 444 So. 2d 931 (Fla. 1983)).

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 1994 |636 So. 2d 502] and amended in 2014 [ 132 So. 3d 11241 and 2017.

7.7 MANSLAUGHTER

§ 782.07, Fla. Stat.

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

1. (Victim) is dead.

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

2. a. (Defendant) intentionally committed an act 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, as I have previously instructed you.-?- (The explanations of justifiable homicide and excusable homicide are in Instruction 7.1. Introduction to 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 H-emieider

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, orto commit-n-felony in any' dwollkig-houseln-which-the dcfcndnnt-VTOS-at the timc of-thc killing. § 782.02—Fla, Stafe

Excusable Homicide:

The killing of a human being-is-excusabh^ and-tbercforc lawful?-under any one of-the-following-threc circumstances:

⅛-When-t-he- lulling is committed by accident and-misfortune in-doing-any lawful net by lawful means-with- usunl ordinary caution and without-any unlawful intentrur

On-When-the lulling occurs by accident and-misfortune in the heut-nf-passion, upon-any- sudden and sufficient provocation or

&-When-the killing-is-eommitted by accident and misfortune resulting from a-sudden comba-t-if-a- dangerous weapon is not used and the killing is not-done in a e-ruel er-unusual manner.

§ 782.03, Fla. Stat.

Give only if 2a alleged and proved.

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, justified, 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.

§ 782i07-(2)~(4), Fla. Stat-Enhanced penalty' "if 2c -atteged-emd-pr-ove d-..Give-a, b, or a, as-applie&bler

If you find the defendant guilty of manslaughtorryou must-then determine whether tho-Stato-has furthor proved beyond-a-reas&nable-deubt that?

⅜-(Victim)was at-the-time-[an-elderly person] [a disabled adultj-whose-death was caused by the neglcct-of-(clefendan% a caregiver;-

fe-(Victim) was-a child-whoso death was caused-by-the-negleet of (defendant^ a caregiver.

fe-(V-ietHB^'as at the time [nn offker]-{-a-firefighter] [an emergency medical technician] [a-parnmedte]-who was-at the time performing duties that were within the course-of [his] [her-J-empleymentr--The court now instructs-you-tha-t-(official title of-viotim) is- [an- officer] [a firefighter] [an emergeney-medic-al-tec-hnician] [a paramedic].-

Definitions. Giva-if applicable?

“Child” moans any person under thc-age-of 18 years.

§782.03-; -FlckrStetr

“Dangerous weapon” is any weapon-that-,-talang-into account the manner-in which it was usodris-likeIy to produce-death-or great bodily-harm-.-

“Elderly-person” moans -a-porson 60 yonrs-of-age-or- older who is suffering-from the infirmities -of-aging as ma-nifested-by-ftdvanced agerorgamc-brain- damage, or physical mental, or cmotional-dysiunc-tioning, to the extent th-at-the-ability of the-per son-to-p ro vide adequately for the-person»s-ow-n-care or protect-ion4s-impaired;-

“Disab-Ied-adult-’-means a- person 18 years-of-age-ee-oldor who suffers-from a condition-of -physical or-montal-incapac-iiation duo to developmental disability, organic brain-damage^or-mcntalillness, or who has onc-or more physic-ahor montalfim-iiations-t-hat-rostrictthe-person’s ability to perform-t-he normal-activities of daily living;-

“Facility” means-any-lecation providing day or-residential care or treatment for eldorly-pcrsons--or disabled-aduIts.--T-he-term “facility” may inelude;-but is not limited tO;any-hospital; training center, state institution, nursing honm,-assisted4iving facility, adult family-care home, adult day care center, group home-montal-heatth-t-roatmcnt center-, or continuing care community.

As applied to an Elderly-Person or a Disabled Adult,

-Garegiyor”--moans a porson-who-has-boon 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 Iimited-tovrelatives, court appomted-or voluntary guardians? adult household members, neighbors, health-care providers, and employees and volunteers of facilities.

Aíh&pplied-íe-ét- Qhikl-

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

§ 825.1O2(3){B)-0in-§-827i63(3)(a}Td5'4a^Stat:~ Give 1 or 2 as applicable.’ -Neglect of-[a-child”] [an elderly-person”] [a disabled-adult”] means:

t-A-cnregiver-s failure or omission to provide [a child]-[an elderly person-Ha-disabled adult] with-the-earersupervision, and sen-ices necessary to maintnin [a-c-hM-s-j -fan-olderly person’s] [a disabled adult-sj-ph-ysical and mental health, including, but not-limited to, food, nutr-hion-e-lothing, shelter; supervision, medicine;-and medical services that a prudent person would consider-essontial for the well-being of the [child] [elderly person]-[disabled adult];

or

½-A caregiver’s failure-to-make-reasonable effort to protect [a child]-[an-elderly person] [a disabled-aduitj-fr-om-abuse; neglec-t-o-r-ex-ploitation by another person;

Repea-ted-eonduc-t-or-a-single incident or omission by a caregiver-that results in, or could roasonably-be expected to result in, a substantial-risk-of death of [a child] [an-elderly person] [a disabled adult] may bo considered in determining neglect»

Dejmitiomr-As appliad-to-Dem^naiad-Pars-onmh

§ 112.191 and § 633.35, Ffo.-⅞⅛

“Firefighter-moans any-fuH-time-duly cmployed-uwRirmod fírefightcr-omployedby-att^apteyerv-w-hese primary duty-ts-flie-prev-ention-and cxtinguishing-of-fire.s,the-protection of liffr-and-propcrty thero from-rthe ontorcement ot-niuti icipal, county, and state fire-preveation codes-, as-well-as the enforcement of apy-Iaw-peftaining to the preventionand-eontrol of fires-,who is certified by the Division of State Eire Ma-rehal of the Depart-men t-o-f Einuncial-SoryicoSj wh& is ¾-iacmbor of u daly co-n^tR-uted-fiyo department off such-employer or who-is-a-vofanteer firefighter?

§ 9-13.10(1 l),P!a.-Sia1r

‘‘Officer”-mean.s-itny-person cmployedor-nppointedas a full-time-,-pftri-time or au-xiiiury-tow enforcement officery correctional office^ or-correet-iena-l probation officer.-

§ 401.23, Fla. Stat.

"Emergency-Medical Teehnic-ian-’-meamHi person-who is certified by the Departm cnt of Health to-perform b asic life support?

§-m.23¿F$etrStok

“Paramedic--means a person-w-ho-io-certified by the-Departmen-t-o-f Health to perform basic and advanced life support.

Lesser Included Offenses

Comments

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.

-Inal judges should carofullv study See Everslev 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 Manslaughtavfeere-is no statutory requirement that tho defendant have knowledge of the olassificafion-of-the-vlotim; ther-efore-the-sohedule of lesser-ineluded offenses does-not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Qffieer,-Battery"On a-k-t-w-Enforoement Offi^r-rOT-Assault on a Law Enforcement Officer. 'Haose-offensesdaave-a-different definition-of-officer. Additionally, the exoluded- lesser inoluded-offenses require proof of knewmg-that-the-com-m-s&ion of ■the-effense-was-on an-offi&er-whe was engaged-in-the -lawful performance of a ■l-egai-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], 2010 [41 So.3d 853], aad-2011 175 So. 3d 2101. and 2017.

7.7(al AGGRAVATED MANSLAUGHTER

$ 782.07121. $ 782.07131 and § 782.07i4\ Fla. Stat.

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

1. (Victim') is dead.

2. The death of (victim! was caused by the culpable negligence of (defendant!.

Give 3a or 3b as applicable.

3. a. CVictim! was at the time Fan elderly person! fa disabled adult! [a child! and (victim’s^ death was caused by the neglect of (defendant!, a caregiver for (victim!.

b. ('Victim! was [an officer! fa firefighter! Ian emergency medical technician! la paramedic! who was at the time performing duties that were within the course of íhisl flier! employment.

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. The defendant cannot be guilty of manslaughter by causing a death because of a merely negligent act. 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 safety7 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.

The defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously instructed you. CFhe explanations of justifiable homicide and excusable homicide are in Instruction 7.1, Introduction to Homicide.)

Definitions. Give as applicable.

$825.101(4). Fla. Stat.

“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 dvsfunctioning. to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

§825.101(3). Fla. Stat.

“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 person’s ability to perform the normal activities of daily living.

£ 827.01(2). Fla. Stat.

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

As applied to an Elderly Person or a Disabled Adult. § 825.101(2). Fla. Stat

“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.

§825.101(6). Fla. Stat

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

As applied to a Child. § 827.01(1). Fla. Stat

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

§ 825.102(3)(a) or § 827.03(3)(e). Fla. Stat.

“Neglect of hi child”! Ian elderly person”! [a disabled adult”! means:

1. A caregiver’s failure or omission to provide fa child! Tan elderly person! Ta disabled adultl with the care, supervision. and services necessary to maintain fa child’s! fan elderly person’s! la 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 fchild! felderlv person! Ídisabled adultl:

or

2. A caregiver’s failure to make reasonable effort to protect ia child! [an elderly person! fa disabled adultl from abuse, neglect or exploitation bv another person.

Neglect may be based on repeated conduct or on a single incident or omission bv a caregiver that results in. or could reasonably be expected to result in. serious physical or fosvchological! fmental! injury, or a substantial risk of death to ia child! fan elderly person! ia disabled adultl.

Definitions. As applied to Designated Personnel.

£ 943.10Í14), Fla. Stat. See £ 943.10■ Fla. Stat. for further definitions,

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

£ 112.191 and £ 633.35. Fla. Stat.

“Firefighter” means any full-time duly employed uniformed firefighter employed bv 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 anv law pertaining to the prevention and control of fires. who is certified bv 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.

£ 401.23. Fla. Stat.

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

£ 401.23. Fla. Stat.

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

Lesser Included Offenses

Comments

♦Non-homicide lesser-included offenses do not have to be given if the narties aeree causation is not in dispute and that the victim is dead.

There is no statutory reciuirement that the defendant have kiimvlcdue of victim's status and as of November 2015, there was no case law addressing that issue.

Tins instruction was adopted in 2017.

8.25 VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A DOMESTIC VIOLENCE CHARGE

§741.29(6), Fla. Stat.

To prove the crime of Violation of a Condition of Pretrial Release from á Domestic Violence Charge, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was arrested for an act of domestic violence.

2. Before [his] [her] trial, (defendant’s) release on the domestic violence charge was set with a condition of (insert condition of pretrial release in Fla. Stat. 903.047).

3. (Defendant) knew that a condition of [his] [her] pretrial release was (insert condition),

4. (Defendant) willfully violated that condition of pretrial release by (insert the manner in which the defendant is alleged to have violated pretrial release).

Definitions.

§ 741.28, Fla. Stat.

“Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

“Family or household members” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Patterson v. State, 512 So. 2d 1109 (Fla. l^stDCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Appendix—Continued

Give as avvlicable and if the defendant is charged with violating a no contact order. £ 903.047(1)(h), Fla. Staf.

An order of “no contact” is effective immediately and is valid for the duration of the pretrial release or until it is modified by a judge.

Unless otherwise stated by the judge, “no contact” means it is prohibited for (defendant-) to have communicated orally or in any written form, either in person, tclenhonicallv, electronically, or in any other manner. either directly or indirectly through a third person, with [(victim)! fori Ram-other person named in the order'll.

It is also a violation of a “no contact” order if (defendant*):

a. had physical or violent contact with (victim) lorl [(other named person'll or this! fori [her! property.

b. was within 500 feet of (victim's') fori ff other named person's'll residence, even if the defendant and (victim) lorl [(other named person)! share the residence.

c. was within 500 feet of (victim's-) fori fiother named person's!! [vehicle 1 Inlace of employment! lorl ffa specified place frequented regularly by such person) I.

Lesser Included Offenses

Comment

This instruction was adopted in 2014 IT 41 So. 3d 12011 and amended in 2017.

      . The Committee’s report initially included a proposal to amend existing instruction 28.4(a) (Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property). The proposal was subsequently withdrawn by the Committee.

      . 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_instrucflons/ 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.