author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES— REPORT 2016-06.
    No. SC16-1185
    Supreme Court of Florida.
    [February 9, 2017]
    Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Barton Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize for publication and use the amended and newly adopted standard instructions. We have jurisdiction. See Art. V, § 2(a), Fla. Const.

The Committee proposes amending existing standard instructions 10.9 (False Reports of Bombing); 10.10 (False Reports of Bombing State-Owned Property); 13.1 (Burglary); and 21.7 (Giving False Name or Identification to Law Enforcement Officer Adversely Affecting Another). In addition, the Committee proposes new instruction 8.22(a) (Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official]). Following publication of its proposals by the Committee, two comments were received by the Committee, from the Florida Public Defenders Association and the Florida Association of Criminal Defense Lawyers, pertaining to the proposals to create new instruction 8.22(a) and to amend instructions 10.9 and 10.10. The Committee did not make any changes to its proposals. After the Committee filed its report, the Court did not publish the proposals. The Court authorizes instructions 13.1 and 21.7 as proposed, and authorizes instructions 8.22(a), 10.9, and 10.10, with modifications. The more significant amendments to the instructions are discussed below.

New instruction 8.22(a) (Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official] ), instructs upon the new misdemean- or crime in section 836.12(2), Florida Statutes (2016), enacted in chapter 2016-166, section 3, Laws of Florida. The new subsection provides as follows:

Any person who threatens a law enforcement officer, a state attorney, an assistant state attorney, a firefighter, a judge, or an elected official, or a family member of such persons, with death or serious bodily harm commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 836.12(2), Fla. Stat. (2016). With regard to instruction 8.22(a), upon consideration of the comments received by the Committee and the Committee’s response, we authorize instruction 8.22(a), and add a provision to instruct jurors that the State must prove that the defendant knew that the person threatened was within the class of protected persons identified in the statute, including “law enforcement officer,” “state attorney,” “assistant state attorney,” “firefighter,” “judge,” “elected official,” or “family member” of such persons.

Instruction 10.9, amended in light of the 2016 amendments to the statutory definition of the crime, in section 790.163(1), Florida Statutes (2016), see ch. 2016-156, § 1, Laws of Fla., is retitled “False Reports Concerning the [Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive, or a Weapon of Mass Destruction] [Use of Firearms in a Violent Manner Against a Person].” Instruction 10.10, also amended in light of the 2016 amendments to the statutory definition of the crime, in section 790.164, Florida Statutes (2016), see ch. 2016-156, § 2, Laws of Fla., is retitled “False Reports Concerning [The Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive, or a Weapon of Mass Destruction] [An Act of Arson or Other Violence] To Property Owned by the State [or Any Political Subdivision].” In both instructions 10.9 and 10.10, consistent with sections 790.163(3) and 790.164(3), respectively, and upon review of the comments received by the Committee and the Committee’s response thereto, the Court has replaced the Committee’s “inference provision” with the following language: “Proof that a person knowingly made a false report is prima facie evidence of that person’s intent to deceive, mislead, or otherwise misinform any person.”

Having considered the Committee’s report, jury instructions 8.22(a), 10.9, and 10.10, as modified by the Court, and instructions 13.1 and 21.7, as proposed by the Committee, and as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. 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. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

LAWSON, J., did not participate.

APPENDIX

8.22(a) THREAT TO [KILL] [DO SERIOUS BODILY HARM TO] A [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC OFFICIAL]

§ 836.12(2), Fla! Stat,

To prove the crime of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) threatened to [kill] [do serious bodily harm to] (person receiving threat).

2. At the time, (person receiving threat) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [elected official].

3. (Defendant) knew (victim) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [elected official].

Definitions. Give if applicable.

§ 836.m(l)(a), Fla. Stat.

“Family member” means:

1. An individual related to another individual by blood or marriage;

or

2. An individual who stands in loco parentis to another individual. “In loco parentis” means in place of a parent.

§ 836.12(l)(b), Fla, Stat.

“Law enforcement officer” means 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.

Definitions for part-time and auxiliary law enforcement officers can be found in § 9J/.3.10, Fla. Stat,

“Law enforcement officer” 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.

§ 836.12(l)(b)2, Fla. Stat.

“Law enforcement officer” includes a person who is employed by the Federal Government as a full-time law enforcement officer as defined by federal law, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to that prescribed for state law enforcement officers.

§ 633.102(9), Fla. Stat. '

“Firefighter” means an individual who holds a current and valid Firefighter Certificate of Compliance or Special Certificate of Compliance issued by the Division of State Fire Marshal under Florida law.

Give if applicable if the jury finds the defendant guilty of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], § 836.12(3), Fla. Stat.

Now that you have found the defendant guilty of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of the same crime.

“Conviction” means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offenses

Comments

*It is not clear whether Assault on a Law Enforcement Officer can be a lesser included offense of § 836.12(2), Fla. Stat., because both crimes are first degree misdemeanors. Practitioners may wish to review Sanders v. State, 944 So.2d 203 (Fla.2006) and Carle v. State, 983 So.2d 693 (Fla. 1st DCA 2008).

This instruction can be used for the felony crime in § 836.12(3), Fla. Stat., which is based on a prior conviction for § 836.12(2), Fla. Stat. If the felony is charged, it is error to inform the jury of the prior conviction until the verdict on the underlying crime is rendered. Therefore, if the information or indictment contains an allegation of a prior conviction, that allegation must not be read to the .jury before the verdict and the information or indictment must not be given to the jurors before the verdict. If the defendant is found guilty, the historical fact of a prior conviction shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2017.

10.9 FALSE REPORTS OF BOMBING CONCERNING THE [PLACING OR PLANTING OF A BOMB, DYNAMITE, OTHER DEADLY EXPLOSIVE, OR A WEAPON OF MASS DESTRUCTION] [USE OF FIREARMS IN A VIOLENT MANNER AGAINST A PERSON]

§ 790.163(1), Fla._Stat.

To prove the crime of (-crim^-Gharged-) False Report Concerning the [Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive, or a Weapon of Mass Destruction] [Use of Firearms in a Violent Manner Against a Person], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) made a false report to (■person—receiving'.report) any person concerning [the placing or planting of.(explosive alleged) ■ a bomb, dynamite, other deadly explosive, or a weapon of mass destruction] [the use of firearms in a violent manner against a person].

2. (Defendant) knew the report was false.

3. The report was made with intent to deceive, mislead or otherwise misinform (person—alleged-)—any person.

§ 790.163(3), Fla. Stat.

Proof that a person knowingly made a false report is prima facie evidence of that person’s intent to deceive, mislead, or otherwise misinform any person.

Definitions. Give if applicable,

§ 790.166(l)(a), Fla. Stat.

“Weapon of mass destruction” means:

1. Any device or object that is designed or intended to cause death or serious bodily injury to any human or animal, or severe emotional or mental harm to any human, through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

2. Any device or object involving a biological agent;

3. Any device or object that is designed or intended to release radiation or radioactivity at a level dangerous to human or animal life; or

4. Any biological agent, toxin, vector, or delivery system.

“(Explosive—alleged)-—is—defined as ■(■adapt the definition of the-explosive ■alleged from-§--79Q;QQ'3r(5)y-Pla-.-Stat;) ■ as re-qa-ired-by the allegations).

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

There are no definitions for “bomb,” “dynamite,” or “deadly explosive” in the statutes or case law, although there is a definition of “explosive” in § 790.001(5), Fla. Stat.

This instruction was adopted in 1981 and was amended in 1985 and 2017.

10.10 FALSE REPORTS OF BOMBING CONCERNING [THE PLACING OR PLANTING OF A BOMB, DYNAMITE, OTHER DEADLY EXPLOSIVE, OR A WEAPON OF MASS DESTRUCTION] [AN ACT OF ARSON OR OTHER VIOLENCE] STATE-0 WNEDTO PROPERTY OWNED BY THE STATE [OR ANY POLITICAL SUBDIVISION]

§ 790.164(1), Fla. Stat.

To prove the crime of False Reports-of Bombing—State-Owned—PropertyCon-cerning [the Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive or a Weapon of Mass Destruction] [an Act of Arson or Other Violence] to Property Owned by the State [or any Political Subdivision], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) made a false report to (person—al-leged)any person concerning [the placing or planting of a bomb, dynamite, other deadly explosive, or a weapon of mass destruction] [an act of arson or other violence] to property.

[the placing or-planting-of- (explosive [■■(alleged act of arson)-]* [-(other-violence alleged) ].

2. The property was owned by the State [or any political subdivision]

(person alleged).

3. (Defendant) knew the report was false.

4. The report was made with the intent to deceive, mislead or otherwise misinform (person alleged) any person.

§ 790.m(3), Fla. Stat.

Proof that a person knowingly made a false report is prima facie evidence of that person’s intent to deceive, mislead, or otherwise misinform any person.

Definitions. Give if applicable,

§ 790.166(l)(a), Fla. Stat.

“Weapon of mass destruction” means:

1. Any device or object that is designed or intended to cause death or serious bodily injury to any human or animal, or severe emotional or mental harm to any human, through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

2. Any device or object involving a biological agent;

3. Any device or object that is designed or intended to release radiation or radioactivity at a level dangerous to human or animal life; or

4.Any biological agent, toxin, vector, or delivery system.

§ 1.01(8), Fla, Stat.

“Political subdivision” means counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in this state.

“(Explosive—alleged-)-—is—defined—as leged-feom § 790,001(5),.■Fla.Statr-as-ge-quiped-by-the-aHegatiens)r

Lesser Included Offenses

Comments

* Although the crime set forth in § 790.164(1), Fla. Stat,, includes language covering a false report concerning the use of firearms in a violent manner against a person, that part of the statute does not pertain to a threat against property owned by the state or a political subdivision. For an allegation involving; a false report concerning the use of firearms in a violent manner against a person, the trial judge should refer to Instruction 10,9 •

There are no definitions for “bomb,” “dynamite,” or “deadly explosive” in the statutes or case law, although there is a definition of “explosive” in § 790.001(5), Fla. Stat.

This instruction was adopted in 1981 and was amended in 1985 and 2017.

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] in that [structure] [conveyance].

The offense intended cannot be trespass or burglary. If requested, the jury should be instructed on the elements of the offense(s) intended.

Give element 8 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, 421 So.2d 510 (Fla. 1982), and State v. Waters, 436 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] 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] [convey-anee] 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] 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] 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. If requested, the jury should be instructed on the elements of the offense(s) or forcible felony/felonies intended.

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 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.

Traveling from county of residence into another county with intent to commit a burglary and with purpose to thwart law enforcement efforts to track stolen property. § 8Jp3M, Fla. Stat.

If you find (defendant) guilty of [Burglary] [Attempted Burglary] [Solicitation to Commit Burglary] [Conspiracy to Commit Burglary], you must also determine whether the State proved beyond a reasonable doubt that:

1. (Defendant) had a county of residence within Florida; and

2. (Defendant) travelled any distance with the intent to commit a burglary in a county in Florida other than [his] [her] county of residence; and

3. The purpose of (defendant’s) travel was to thwart law enforcement attempts to track items stolen in the burglary.

“County of residence” means the county within this state in which a person resides.

Evidence of a person’s county of residence includes, but is not limited to:

1. The address on a person’s driver license or state identification card;

2. Records of real property or mobile home ownership;

3. Records of a lease agreement for residential property;

4. The county in which a person’s motor vehicle is registered;

5. The county in which a person is

enrolled in an educational institution;

6. The county in which a person is employed.

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 a vehicle 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 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 burglary 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(4), 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

Comments

When the compounded offense of burglary with an assault or burglary with a battery is charged, and- the jury -convicts the-jury- can-also-consider-ar-second conviction-on-the-less&r-included offenseS 'Of assault-or—battery-depending - on the - crime charged the jury can convict on two lesser-included offenses. See Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005).

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], 2008 [986 So.2d 563], 2013 [109 So.3d 721], and 2015 [176 So.3d 938], and 2017.

21.7 GIVING FALSE NAME OR IDENTIFICATION TO LAW ENFORCEMENT OFFICER ADVERSELY AFFECTING ANOTHER

3 p w S' CD O H-i CO C*

To prove the crime of Giving False Name or Identification to Law Enforcement Officer Adversely Affecting Another, the State must prove the following four elements beyond a reasonable doubt.

1. (Defendant) was [arrested] [lawfully detained] by a law enforcement officer.

2. (Defendant) [gave a false name] [falsely identified [himself] [herself] in any way] as (victim) to (name of officer or county jail personnel).

3. At the time, (name of officer or county jail personnel) was [a law enforcement officer] [personnel of a county jail].

4. (Victim) was adversely affected by the unlawful use of [his] [her] [name] [identification].

The court now instructs you that every (name of official position of [officer] [county jail personnel)) is [an officer] [personnel of a county jail] within the meaning of this law.

In giving this instruction, do not refer to the [officer] [county jail personnel] by name. The instruction must state the class of officer or personnel to which the individual named in the charge belongs, e.g., deputy sheriff, correctional officer, booking officer. See Wright v. State, 586 So.2d 1021 (Fla. 1991).

Give if lawfully detained is charged.

A person may be lawfully detained if the officer reasonably suspects that person violated or was about to violate the law.

. Lesser Included Offenses

Comments

*The difference between the third degree felony in § 901.36(2), Fla. Stat., and the first degree misdemeanor in § 901.36(1), Fla. Stat., is that the felony requires the state to prove element #4, Accordingly, the first three elements in this instruction can be used for the misdemeanor lesser-included offense.

This instruction was adopted in 2008 [995 So.2d 489] and amended in 2017.

      . 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_Jnstructions/' 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.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Cary Michael LAMBRIX, Appellant, v. STATE of Florida, Appellee. Cary Michael Lambrix, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC16-8
    No. SC16-56
    Supreme Court of Florida.
    [March 9, 2017]

      Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, William McKinley Hennis, III, Litigation Director, Capital Collateral Regional Counsel, Southern Region, Martin J. McClain, Special Assistant, Capital Collateral Regional Counsel, Southern Region, and Jessica Leigh Houston, Michael Chance Meyer, and Bryan E. Martinez, Staff Attorneys, Capital Collateral Regional Counsel, Southern Region, Fort Lauder-dale, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Scott Andrew Browne, Senior Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Appellee/Respon-dent
    Howard L. Dimmig, II, Public Defender, and Robert Arthur Young, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, Florida, for Amicus Curiae Florida Public Defender Association
    Billy Horatio Ñolas, Chief, Capital Ha-beas Unit, Office of the Federal Public Defender, Tallahassee; Florida, for Amicus Curiae Capital Habeas Unit of the Office of the Federal Public Defender for the Northern District of Florida
    Nancy Gbana Abudu, Miami, Florida, and Norman Adam Tebrugge, Tampa, Florida, for Amici Curiae American Civil Liberties Union Capital Punishment Project and the American Civil Liberties Union of Florida
    Sonya Rudenstine, Gainesville, Florida, and Karen Marcia Gottlieb, Florida Center for Capital Representation, Florida International University College of Law, Miami, Florida, for Amicus Curiae Florida Association of Criminal Defense Lawyers
   PER CURIAM.

Cary Michael Lambrix is a prisoner under sentence of death for whom a death warrant was signed. This Court stayed the death warrant as a result of the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 619, 193 L.Ed.2d 604 (2016), to determine if that opinion was entitled to retroactive application to a death sentence that was final in 1986.

Lambrix was convicted and sentenced to death for the 1983 first-degree murder of two victims after Lambrix had invited them to his trailer to eat dinner. Lambrix v. State, 494 So.2d 1143, 1145 (Fla. 1986). On direct appeal, this Court upheld Lam-brix’s two convictions of first-degree murder and his two death sentences. Id. at 1148.

After the Governor signed a death warrant on November 30, 2016, and the execution was set for February 11, 2016, this Court entered a scheduling order, providing a deadline by which Lambrix could file any successive motions for postconviction relief. Lambrix filed both a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 and a motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. On December 21, 2015, the postconviction court summarily denied both Lambrix’s successive motion for post-conviction relief and his motion for DNA testing. Lambrix appealed these orders to this Court and filed a petition for writ of habeas corpus. After the United States Supreme Court issued its opinion in Hurst v. Florida, 136 S.Ct. 616, this Court stayed his execution and permitted supplemental briefing and oral argument in order to fully consider the impact of Hurst v. Florida in this case. In accordance with our opinion in Asay v. State, 210 So.3d 1, 2016 WL 7406538 (Fla. Dec. 22, 2016), we conclude that Lambrix is not entitled to a new penalty phase based on Hurst v. Florida, and our opinion in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), and we further reject the other grounds for relief that he raised as devoid of merit. Accordingly, we affirm the postconviction court’s denial of relief and also deny Lambrix’s separate petition for habeas corpus.

FACTS AND PROCEDURAL HISTORY

The facts of this case are set forth in Lambrix’s direct appeal of his conviction and sentence of death:

On the evening of February 5, 1983, Lambrix and Frances Smith, his roommate, went to a tavern where they met Clarence Moore, a/k/a Lawrence Lam-berson, and Aleisha Bryant. Late that evening, they all ventured to Lambrix’ trailer to eat spaghetti. Shortly after their arrival, Lambrix and Moore went outside. Lambrix returned about twenty minutes later and requested Bryant to go outside with him. About forty-five minutes later Lambrix returned alone. Smith testified that Lambrix was carrying a tire tool and had blood on his person and clothing. Lambrix told Smith that he killed both Bryant and Moore. He mentioned that he choked and stomped on Bryant and hit Moore over the head. Smith and Lambrix proceeded to eat spaghetti, wash up and bury the two bodies behind the trailer. After burying the bodies, Lambrix and Smith went back to the trailer to wash up. They then took Moore’s Cadillac and disposed of the tire tool and Lambrix’ bloody shirt in a nearby stream.

Lambrix, 494 So.2d at 1145. Lambrix raised four issues on direct appeal, which this Court denied.

The Governor signed a death warrant for Lambrix, scheduling his execution for November 30, 1988. In response to the death warrant, Lambrix then filed an initial postconviction motion, which was summarily denied. This Court affirmed the summary denial, concluding that even taking all of Lambrix’s allegations as true, there was no prejudice. Lambrix v. State, 534 So.2d 1151, 1153-54 (Fla. 1988). The dissent asserted that an evidentiary hearing should have been held. Id at 1154 (Kogan, J., dissenting). Lambrix also filed a petition for writ of habeas corpus in this Court, alleging that his appellate counsel was ineffective for failing to raise numerous claims, including: (1) the trial court erred in denying a motion for individual and sequestered voir dire concerning the effect of pretrial publicity; (2) it was error for Lambrix not to be present during a part of voir dire; (3) it was error for the court to have approved certain stipulations in Lambrix’s absence while the jury was being selected; and (4) the trial court erred in not instructing the jury as to voluntary intoxication. Lambrix v. Dugger, 529 So.2d 1110, 1111-12 (Fla. 1988). This Court denied relief. Id. at 1112.

In addition, either through counsel or in a pro se capacity, Lambrix has filed numerous successive petitions for postconviction relief and successive habeas petitions before the trial court and this Court—all of which have been denied. See, e.g., Lambrix v. State, 559 So.2d 1137, 1138 (Fla. 1990) (affirming the summary denial of a pro se petition for writ of habeas corpus, filed with the trial court, in which Lambrix asserted that his collateral counsel was ineffective for failing to raise a claim of juror misconduct because one of the jurors in his second trial failed to disclose that she had been on the venire prior to Lam-brix’s first trial); Lambrix v. Singletary, 641 So.2d 847, 848-49 (Fla. 1994) (denying a successive habeas petition that asserted an entitlement to relief based on Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), challenged various aggravators, and raised an ineffective assistance of counsel claim); Lambrix v. State, 698 So.2d 247, 248 (Fla. 1996), cert. denied, 522 U.S. 1122, 118 S.Ct. 1064, 140 L.Ed.2d 125 (1998) (affirming the summary denial of a successive postconviction motion that raised new ineffective assistance of counsel claims and alleged a Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), violation); Lambrix v. State, 39 So.3d 260, 275 (Fla. 2010), cert. denied, 562 U.S. 1145, 131 S.Ct. 917, 178 L.Ed.2d 766 (2011) (affirming the denial of multiple claims including newly discovered evidence claims); Lambrix v. State, 124 So.3d 890, 904 (Fla. 2013), cert. denied, — U.S. —, 134 S.Ct. 1789, 188 L.Ed.2d 760 (2014) (affirming the denial of two successive postconviction motions and denying a writ petition in a consolidated opinion). Lambrix also filed numerous other pleadings in this Court that have been denied or dismissed.

Lambrix has likewise filed federal pleadings before the federal district court, including a Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 in 1988. After granting an evidentiary hearing on the motion, the federal district court denied relief and the Eleventh Circuit Court of Appeals affirmed the denial of relief. Lambrix v. Dugger, No. 88-12107-CIV-Zloch (S.D. Fla. May 12, 1992), aff'd 72 F.3d 1500 (11th Cir. 1996). In these federal proceedings, Lambrix challenged whether he was entitled to relief based on his Espinosa claim. The United States Supreme Court ultimately affirmed the denial of relief on that claim, holding that Espinosa was not dictated by then-existing precedent, but announced a “new rule” as defined in Teague, and does not apply retroactively. Lambrix v. Singletary, 520 U.S. 518, 528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

In addition, Lambrix filed numerous other pro se pleadings in federal court that have been denied. See, e.g., Lambrix v. Jones, — U.S. —, 136 S.Ct. 537, 193 L.Ed.2d 432 (2015) (denying petition for writ of certiorari); In re Lambrix, — U.S. —, 136 S.Ct. 541, 193 L.Ed.2d 451 (2015) (denying petition for writ of habeas corpus); In re Lambrix, 563 U.S. 1007, 131 S.Ct. 2907, 179 L.Ed.2d 1263 (2011) (denying petition for writ of habeas corpus); In re Lambrix, 776 F.3d 789, 793 (11th Cir. 2015) (denying Lambrix’s application for leave to file a successive § 2254 petition, because the claims were precluded by the law-of-the-case doctrine and/or the prior-panel-precedent rule); Lambrix v. Sec’y, Fla. Dept. of Corrs., 756 F.3d 1246, 1249 (11th Cir. 2014) (affirming the district court’s denial of Lambrix’s motion for substitute counsel and denying his assertion that he was entitled to raise proeedurally-defaulted claims in a successive § 2254 habeas petition based on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)); In re Lambrix, 624 F.3d 1355 (11th Cir. 2010) (denying leave to file a successive petition for writ of habeas corpus). Lambrix filed his latest Motion for Relief from Judgement, which the federal district court denied on December 22, 2015, and subsequently denied the motion for certificate of appealability on January 28, 2016.

After the Governor signed a death warrant on November 30, 2015, Lambrix filed both a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851 and a motion’ for postcon-viction DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. On December 21, 2015, the postconviction court summarily denied both Lambrix’s successive motion for postconviction relief and his motion for DNA testing. Lambrix appeals these orders and has filed a petition for writ of habeas corpus,

ANALYSIS

On appeal to this Court, Lambrix raises the following claims: (1) whether he was deprived of effective assistance of counsel based on a conflict of interest and whether a United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), violation occurred; (2) whether he was denied his due process rights and a full and fair hearing on his DNA motion; (3) whether he was denied full and fair post-conviction proceedings; and (4) whether the totality of punishment that the State has imposed on him is unconstitutional. In addition, Lambrix filed a petition for writ of habeas corpus, raising three additional claims: (1) whether his constitutional rights were violated by the jury’s nonunan-imous recommendation for death during the penalty phase; (2) whether his post-conviction judge was biased; and (3) whether the clemency proceedings violated his constitutional rights. After the United States Supreme Court issued its opinion in Hurst v. Florida, this Court permitted supplemental briefing and oral argument so that the Court could fully consider the impact of Hurst v. Florida in this case. Following oral argument this Court issued its opinion in Hurst on remand from the United States Supreme Court: We address each of these claims in turn.

POSTCONVICTION MOTION

Conflict of Interest and Cronic Claim

In his first claim on appeal, Lam-brix contends that his trial counsel had a conflict of interest. As support for this claim, Lambrix relies on an FBI report that allegedly reflects that at the time of trial, a member of the defense team believed Lambrix was a difficult client and had lied to them—a document that was received by defense counsel in 1999. Lambrix frames this claim both as a conflict of interest claim and a claim supported by Cronic, 466 U.S. at 648, 104 S.Ct. 2039. The postconviction court denied this claim, first concluding that the FBI report, raised now, is untimely and procedurally barred since defense counsel recognized that Lambrix’s prior attorney received the document in 1999, and thus the claim was clearly not raised within the one-year deadline from the time that the evidence was or could have been discovered. Further, the postconviction court held that even on the merits, the claim should be denied, explaining:

[T]he person giving the statement merely indicated to the FBI agent that Defendant was a difficult client, had not been forthcoming, and had threatened to complain about counsel in collateral proceedings if his trial outcome was not favorable. The record reflects that these statements have all turned out to be true. There is no actual conflict of interest on the part of trial counsel based solely on the statement of an unknown individual from the Public Defender’s Office to the FBI agent.

The postconviction court did not err in denying relief.

Lambrix’s claim is untimely. As this is a successive postconviction motion filed more than one year after the convictions and sentences became final, in order for this claim to be considered, it must meet one of three narrow exceptions: (1) the facts on which the claim is predicated were not known to himself or his attorney and “could not have been ascertained by the exercise of due diligence;” (2) a fundamental constitutional right that was not established within the one-year time frame after the judgment and sentence became final and which has been held to apply retroactively; or (3) postconviction counsel negligently failed to file a full or timely motion. See Fla. R. Crim. P. 3.851(d)(2).

In this case, Lambrix asserts he can raise this claim based on newly discovered evidence and relies on an FBI report that he acknowledges his counsel received in 1999. “To be considered timely filed as newly discovered evidence, the successive rule 3.851 motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence.” Jimenez v. State, 997 So.2d 1056, 1064 (Fla. 2008).

While Lambrix recognizes that this “new” evidence was received seventeen years ago, he asks this Court to excuse the extreme untimeliness for two reasons. First, he asserts that three days after his counsel received the annotated FBI records, his counsel at Capital Collateral Regional Counsel-Middle Region (CCRC-Middle) was removed from the case, and the judge appointed registry counsel and later CCRC-South. By the time that Lam-brix’s case was finally moved to CCRC-South and his new attorneys obtained all of the files, more than one year had passed from the date CCRC-Middle received the report. However, Lambrix never explains how such a justification would excuse a seventeen-year delay, particularly when Lambrix has filed numerous successive postconviction motions since 1999 without raising this claim. In essence, Lambrix is asserting that no time limit should exist in this case—a clearly meritless position.

Second, Lambrix contends that there was never an opportunity to file his Cronic claim in a timely manner because a 2007 order by the posteonviction court prohibited any ineffective assistance of counsel claims to be litigated after the initial rounds of postconviction litigation ended in 1992. However, if Lambrix sought to raise a claim to the postconviction court and was denied the opportunity, he was required to appeal it in those proceedings, as opposed to waiting until a death warrant was signed. Accordingly, we deny this claim because it is untimely and procedurally barred. See, e.g., Porter v. State, 653 So.2d 374, 378 (Fla. 1995) (affirming summary denial of conflict of interest claim where the information which formed the basis of the conflict claim was available to the defendant).

Even if we addressed this claim on the merits, the allegations raised are inadequate to establish a Cronic claim. Specifically, in Cronic, the United States Supreme Court held that the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate” by requiring defense counsel to put the prosecution’s case to meaningful adversarial testing and that if no meaningful adversarial testing occurred at all, a defendant does not need to specifically show prejudice. 466 U.S. at 656-59, 104 S.Ct. 2039; see also Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir. 1991) (en banc) (holding that Cronic “created an exception to the Strickland [v.Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard for ineffective assistance of counsel and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed”). In Cronic, however, the Supreme Court held that the Sixth Amendment was not violated—despite the fact that defense counsel was given only twenty-five days to prepare for trial, that counsel was young and inexperienced in criminal matters, that the charges were complex, and that some witnesses were not easily accessible—in the absence of showing of actual ineffectiveness. Cronic, 466 U.S. at 665-67, 104 S.Ct. 2039.

This case does not involve the situation required to create a Cronic violation, which is limited to circumstances where “the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the ‘likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.’ ” Crain v. State, 78 So.3d 1025, 1042 n.11 (Fla. 2011) (quoting Chavez v. State, 12 So.3d 199, 212 (Fla. 2009)). In this case, counsel was never denied so Lambrix cannot rely on the per se rule from Cronic to avoid establishing prejudice. See, e.g., id. (denying a Cronic claim where the assistance of counsel was not denied entirely or withheld during a critical stage of the proceeding). Thus, this claim is meritless.

Full and Fair Hearing on Lambrix’s DNA Motion

In his second claim, Lambrix challenges the postconviction court’s denial of his motion for DNA testing, which summarily denied the motion as follows:

1. Defendant requests DNA testing of the female victim’s clothing, the tire iron, and the t-shirt wrapped around the tire iron. The motion indicates that Defendant believes the latter two items are in the custody of the Glades Clerk, but that he has been unable to locate the female victim’s clothing. Defendant believes that had DNA evidence that did not match Defendant been presented to the jury, it would have been “more likely” to present a reasonable doubt to the jury, leading to an acquittal.
2. Rule 3.853 requires that a motion for DNA testing must demonstrate (1) a statement of the facts relied upon in support of the motion, including a de--scription of the physical evidence containing DNA. to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained; (2) a statement that the evidence was not previously tested for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing'that the movant is not the person who committed the crime; (3) a statement that the movant is 'innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime; and (4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received.
3. Defendant has failed to make facially or legally sufficient allegations. While Defendant asserts his innocence, he has failed to demonstrate how testing those items would exonerate him or mitigate his sentence. Further, Defendant’s identity is not a genuinely disputed issue in this case, since Defendant admits he was present, and asserts the defense of self defense. Defendant filed a prior 3.853 motion in conjunction with his fourth successive 3.851 motion, seeking testing of the hairs found on the t-shirt, which were both denied on the merits. Defendant concedes that the female victim’s clothing is missing. Apparently, inquiries to the Lee, Hendry and Glades Clerks, and the Hendry and Lee County Sheriffs Offices resulted in responses that those locations did not have that evidence. The agencies deny having any physical evidence. Letters between defense counsel and the Glades County Sheriffs Office indicate that a hurricane damaged the storage facility, and the evidence in this case was likely destroyed with the files. Copies are attached. Thus, it appears that the victim’s clothing is unavailable, through no fault of the State.
4, In this case, even if the items were available to be tested, it is unlikely that, after three decades, there would be any viable DNA remaining to test, especially since the tire iron and t-shirt were found submerged in a stream, which would have washed away any blood evidence. Indeed, Defendant concedes that the FDLE report indicated no blood was found on those two items. Where a defendant cannot show that DNA will prove or negate a material fact, a request for testing should be denied. Scott v. State, 46 So.3d 529 (Fla. 2009). Since the female victim was strangled, and Defendant admits he was involved in an altercation with the male victim, he cannot reasonably show how DNA testing of these items would give rise to a reasonable probability that he did not commit the crimes, or would result in a lesser sentence. Even if testing of the evidence found DNA and demonstrated that the DNA did not match Defendant, it would not prove that Defendant was not present at the crime scene or the perpetrator of the crime. This kind of speculation has been held as a basis for denying a Rule 3.853 motion. See Overton v. State, 976 So.2d 536, 568-570 (Fla. 2007). As such, the evidence would not prove or negate a material fact, and would likely be inadmissible and irrelevant at trial or any future hearings.
5.Defendant has not established that the evidence would exonerate him, or result in a lesser sentence. The Court finds there is no reasonable probability that Defendant would have been acquitted or received a lesser sentence if the DNA results had been admitted at trial, especially in light of the other overwhelming evidence adduced at trial, including the testimony of witnesses that the Defendant admitted killing the yic-tims. DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence. Consalvo v. State, 3 So.3d 1014, 1016 (Fla. 2009). The Court notes that, while Rule 3.853 allows for a motion to be filed at any time, Defendant had three decades to bring such a motion, and instead waited to file this motion until the death warrant had been signed. It appears that the motion was filed solely for the purposes of delaying the execution.

As this Court has previously set forth when addressing the denial of a previous motion for DNA testing that Lam-brix filed, “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Lambrix, 124 So.3d at 895-96 (quoting Scott v. State, 46 So.3d 529, 533 (Fla. 2009)). “[A] trial court does not err in denying a motion for DNA testing where the defendant cannot show that there is a reasonable probability that the absence or presence of DNA at a crime scene would exonerate him or lessen his sentence.” Id. at 896.

Lambrix has failed to explain how DNA testing of any of the items would lead to his exoneration of the crime or a reduced sentence. As to the tire iron and the shirt wrapped around the tire iron, as Lambrix himself acknowledges, prior testing already established that there was no blood on these items—an unsurprising result since the items were disposed of in a stream. Regarding Bryant’s clothing, Lam-brix provides no reason how Moore’s DNA on Bryant would exonerate Lambrix. The facts already established that Lambrix and Smith invited a couple they met at a bar to their trailer—Bryant and Moore. Further, DNA testing was performed on Bryant’s panties. Simply alleging that Bryant was found nude from the waist down- and Moore’s DNA may be on her- clothing does not establish how that would exonerate Lambrix of killing both Bryant and Moore, particularly when Moore and Bryant were together that evening. As this Court has held, “[i|t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Zeigler v. State, 116 So.3d 255, 258 (Fla. 2013) (quoting Consalvo v. State, 3 So.3d 1014, 1016 (Fla. 2009)). Lambrix has not done so.

Accordingly, Lambrix is not entitled to relief.

Full and Fair Postconviction Proceedings

As his third claim, Lambrix states vague and conclusory allegations that this Court’s December 1, 2015, scheduling order, providing a deadline by which Lam-brix could file any successive motions for postconviction relief, prevented him from making the record he feels would be necessary in the case, but never states exactly what records he was denied based on the scheduling order. This claim is insufficiently pled. Further, a review of the evidentia-ry hearing and the circuit court’s order likewise does not support the contention that the circuit court was unable to undertake any specific action based on the schedule. As this Court has repeatedly held, conclusory allegations do not establish a legally sufficient claim for postconviction relief. Troy v. State, 57 So.3d 828, 840 (Fla. 2011). Further, if Lambrix had raised a meritorious claim and needed additional time to litigate the claim or to ensure an accurate and full record, a stay could be granted. He simply has not raised any claim that requires a stay.

Further, to the extent that Lambrix is challenging the constitutionality of section 119.19, Florida Statutes, and Rule 3.852, he has previously raised this same' challenge, which this Court denied as follows:

As this Court has consistently upheld the constitutionality of section 119.19 and rule 3.852, we deny Lambrix’s constitutional challenge to- section 119.19 and rule 3.852 without further discussion. See, e.g., Wyatt v. State, 71 So.3d 86, 111 (Fla. 2011) (denying claim that these provisions unconstitutionally restrict a defendant’s right to public-records access because they impermissibly mandate that his demand for public records not be “overly broad or unduly burdensome” and that he make his own search for records).

Lambrix, 124 So.3d at 895 n.2. Thus, Lambrix is not entitled to relief.

Whether the Totality of the Punishment is Unconstitutional

In his final posteonviction claim, Lambrix alleges that the totality of the punishment the State has imposed on him, which now includes not just execution, but also more than three decades of being on death row, violates the Eighth Amendment. In support, Lambrix relies on language contained in Justice Stevens’ memorandum opinion regarding the United States Supreme Court’s denial of certiorari review in Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995).

This Court has consistently rejected this claim, including for inmates who have been on death row longer than Lambrix:

Correll next contends that the length of time he has spent on death row, over twenty-nine years, constitutes cruel and unusual punishment. ... [Tjhis Court has repeatedly rejected such challenges. See, e.g., Pardo v. State, 108 So.3d 558, 569 (Fla. 2012) (twenty-four years); Johnston v. State, 27 So.3d 11, 27 (Fla. 2010) (almost twenty-five years); Tompkins v. State, 994 So.2d 1072, 1085 (Fla. 2008) (twenty-three years); Booker v. State, 969 So.2d 186, 200 (Fla. 2007) (almost thirty years). Further, executions of inmates who have been on death row as long as, or longer than, Correll have been permitted. See, e.g., Ferguson v. State, 101 So.3d 362, 366 (Fla. 2012) (more than thirty years); Waterhouse v. State, 82 So.3d 84, 87 (Fla. 2012) (more than thirty-one years); Valle v. State, 70 So.3d 530, 552 (Fla. 2011) (thirty-three years). Correll is not entitled to relief on this claim.

Correll v. State, 184 So.3d 478, 486 (Fla.), cert. denied, Nos. 15-6551 & 15A424, — U.S. —, — S.Ct. —, 193 L.Ed.2d 307, 2015 WL 6111441 (Oct. 29, 2015). Further, Lambrix has contributed to the lengthy time and delay by continually challenging his convictions and sentences. He “cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction[s] and sentence[s].” Valle v. State, 70 So.3d 530, 552 (Fla. 2011) (quoting Tompkins, 994 So.2d at 1085).

Thus, we deny this claim.

HABEAS PETITION

Nommanimous Jury Recommendation for Death and Hurst Challenge

In his motion for posteonviction relief, Lambrix raised a Sixth Amendment claim based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), arguing that his case should be stayed pending the outcome of the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). The posteonviction court summarily denied the claim, relying on our decision in Hurst v. State, 147 So.3d 435 (Fla. 2014), which denied a Ring claim based on prior United States Supreme Court precedent that upheld Florida’s capital sentencing scheme. Before this Court, Lambrix raised his Ring/Hurst v. Florida claim in his habeas petition, rather than in the appeal of his posteonviction motion. While this case was pending, the United States Supreme Court reversed our decision in Hurst v. State and, for the first time, expressly overruled Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), two decisions that had held Florida’s capital sentencing scheme did not violate the Sixth Amendment. Hurst v. Florida, 136 S.Ct. at 624. Lambrix contends that he is entitled to retroactive application of Hurst v. Florida and thus, his sentences of death must be vacated.

For the reasons cited in Asay, 210 So.3d at 5-6, we reject Lambrix’s claim. Lam-brix’s conviction was final in 1986 and accordingly he is not entitled to relief based on Hurst.

Whether the Postconviction Judge was Biased

In his second habeas claim, Lam-brix challenges whether this Court erred in denying a claim in prior proceedings that alleged his postconviction judge was biased. See Lambrix, 124 So.3d 890. In particular, during a prior appeal from a successive motion for postconviction relief and a petition for writ of prohibition, Lam-brix asserted that the postconviction judge was biased based on her rulings and because the judge failed to reveal that she had been previously employed as an Assistant State Attorney. In addition, Lambrix asserted that a staff attorney working for the Twentieth Judicial Circuit had assisted Lambrix. Id. at 897. During those prior proceedings, this Court remanded the proceeding for an evidentiary claim, but the claim was subsequently denied. Id. This Court fully considered Lambrix’s position and rejected it in that proceeding. Id. at 898.

Lambrix cannot use a successive petition for writ of habeas corpus to raise claims that he raised in a prior proceeding. As this Court has long held, “[h]abeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postcon-viction proceedings.” Diaz v. State, 132 So.3d 93, 122 (Fla. 2013) (quoting Wright v. State, 857 So.2d 861, 874 (Fla. 2003)). As this ground clearly was already raised and rejected by this Court, this claim is procedurally barred.

Clemency Proceedings

In his final habeas claim, Lambrix contends that his clemency proceedings have been inadequate, even though he acknowledges that he had three prior opportunities, or three prior “bites of the clemency apple.” In support, he contends that his initial clemency proceeding occurred prior to his federal habeas proceedings and the clemency board did not even question him, while the last two proceedings did not involve any interviews or formal proceedings.

This Court has previously rejected similar claims. For example, in Pardo v. State, 108 So.3d 558, 568-69 (Fla. 2012), we denied a challenge to the clemency proceeding based on a lack of opportunity to present witnesses and evidence and based on allegations that the clemency interview took place decades before Pardo’s death warrant was signed. This Court reasoned as follows:

First, Pardo had a clemency proceeding in 1990 at which he was represented by counsel, and we have previously rejected the argument that a defendant is entitled to present a full accounting of mitigation evidence as part of the clemency process. See Grossman v. State, 29 So.3d 1034, 1044 (Fla. 2010); Johnston v. State, 27 So.3d 11, 25 (Fla. 2010); Glock v. Moore, 776 So.2d 243, 252-53 (Fla. 2001). Second, we have likewise rejected the argument that a long time lapse between a defendant’s clemency proceeding and the signing of his death warrant renders the clemency process inadequate or entitles the defendant to a second proceeding. See Gore [v. State], 91 So.3d [769,] 778-79 [(Fla. 2012)]; Johnston, 27 So.3d at 25-26; Bundy v. State, 497 So.2d 1209, 1211 (Fla. 1986).

Id. at 568. To the extent that Lambrix is challenging the decision reached by the executive branch, we have consistently held, “clemency is an executive function and ..., in accordance with the doctrine of separation of powers, we will not generally second-guess the executive’s determination that clemency is not warranted.” Id.; see also Johnston, 27 So.3d at 26 (“[W]e decline to depart from the Court’s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases.”); Rutherford v. State, 940 So.2d 1112, 1122-23 (Fla. 2006) (denying a similar clemency claim because the defendant had a clemency proceeding and because clemency is an executive function). Accordingly, this claim should be denied.

CONCLUSION

In accordance with our analysis above, we affirm the postconviction court’s denial of Lambrix’s successive rule 3.851 motion for postconviction relief and deny his petition for writ of habeas corpus. Additionally, we lift the stay entered' on February 2, 2016.

It is so ordered.

LABARGA, C.J., and P.OLSTON, J., concur.

PARIENTE, J., concurs in result with an opinion.

CANADY, J., concurs in result.

LEWIS, J., concurs in part and dissents in part.

QUINCE, J., recused.

LAWSON, J., did not participate.

PARIENTE, J.,

concurring in result.

Lambrix is the subject of a pending death warrant. Majority op. at 980. The jury’s recommendations for a sentence of death by votes of eight to four and ten to two without any factual findings indicate that the Hurst error in Lambrix’s case was not harmless beyond a reasonable doubt. See Hurst v. State, 202 So.3d 40, 65 (Fla. 2016); Lambrix v. State, 494 So.2d 1143 (Fla. 1986). Therefore, I would vacate Lambrix’s sentences of death and remand for a new penalty phase under Hurst based on my opinion in Asay v. State, 210 So.3d 1, 2016 WL 7406538 (Fla. Dec. 22, 2016), and elaborated on in Gaskin v. State, 218 So.3d 399, 2017 WL 224772 (Fla. Jan. 31, 2017). Nevertheless, I recognize that I am bound by this Court’s precedent in Asay, which is now final; and, because Lambrix’s sentences became final in 1986, a majority of this Court would not apply Hurst retroactively to his case. Accordingly, I concur in result.

      . On direct appeal, Lambrix asserted: (1) the exclusion of jurors opposed to the death penalty is unconstitutional and the trial court erred in excluding one of the potential jurors for cause; (2) the trial court violated his right to confront witnesses by limiting his cross-examination of the state’s key witness, Frances Smith; (3) the trial court erred in restricting the cross-examination of Connie Smith (no relation to Frances), a special agent with the Florida Department of Law Enforcement; and (4) the trial court erred in allowing the medical examiner, Dr. Schultz, to use the term "homicide” in reference to the deaths of the victims. Lambrix, 494 So.2d at 1145-48.

      . On appeal, Lambrix asserted that his trial counsel was ineffective because: (1) counsel failed to develop additional evidence that would have permitted a jury instruction on voluntary intoxication, and (2) counsel failed to introduce evidence of Lambrix’s alcoholism during the penalty phase of the trial.

      . See, e.g., Lambrix v. Friday, 525 So.2d 879 (Fla. 1988) (table decision dismissing extraordinary relief) (Case No. 71,818); Lambrix v. Martinez, 534 So.2d 400 (Fla. 1988) (table decision dismissing mandamus) (Case No. 73,120); Lambrix v. Reese, 705 So.2d 902 (Fla. 1998) (table decision denying mandamus) (Case No. 91,724); Lambrix v. State, 727 So.2d 907 (Fla. 1998) (table decision denying prohibition) (Case No. 94,221); Lambrix v. State, 766 So.2d 221 (Fla. 2000) (table decision dismissing mandamus) (Case No. SC00-744); Lambrix v. State, 900 So.2d 553 (Fla. 2005) (table decision dismissing mandamus) (Case No. SC04-2020); Lambrix v. State, 944 So.2d 345 (Fla. 2006) (table decision dismissing mandamus) (Case No. SC06-38); Lambrix v. State, 74 So.3d 1083 (Fla. 2011) (unpublished order denying petition for writ of mandamus and/or writ of prohibition) (Case No. SC10-1517); Lambrix v. Crews, 118 So.3d 221 (Fla, 2013) (unpublished order denying claim based on Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)) (Case No. SC11-1138); Lambrix v. State, 139 So.3d 298 (Fla.), cert. denied, — U.S. —, 135 S.Ct. 174, 190 L.Ed.2d 124 (2014) (unpublished order denying claim based on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)) (Case No. SC13-1471).

      . Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


text:
    IN RE: AMENDMENTS TO FLORIDA RULE FOR CERTIFIED AND COURT-APPOINTED MEDIATORS 10.900.
    No. SC17-259
    Supreme Court of Florida.
    [May 4, 2017]
   PER CURIAM.

The Court, on its own motion, amends Florida Rule for Certified and Court-Appointed Mediators 10.900 (Supreme Court Chief Justice Review) to clarify the procedure for submitting a notice of review of mediator disciplinary action to the Chief Justice of this Court.

The amendments to rule 10.900 require a notice of review of mediator disciplinary action to be filed with the Clerk of this Court, rather than, as currently required, submitted directly to the Chief Justice who, under the rule, either conducts the review proceedings or designates another reviewer. Requiring filing with the Clerk will provide a clear mechanism for submitting a notice of review and all other documents submitted in review proceedings. This requirement also will streamline the submission process and make oversight of the “filings” in these review proceedings more manageable for court staff.

Accordingly, we amend the Florida Rules for Certified and Court-Appointed Mediators as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

APPENDIX

RULE 10.900. SUPREME COURT CHIEF JUSTICE REVIEW

(a) Right of Review. Any mediator or applicant found to have committed a violation of these rules or otherwise sanctioned by a hearing panel shall have a right of review of that action. Review of this type shall be by the chief justice of the Supreme Court of Florida or by the chief justice’s designee. A mediator shall have no right of review of any resolution reached under rule 10.800(g) and 10.810(i).

(b) Rules of Procedure. The Florida Rules of Appellate Procedure, to the extent applicable and except as otherwise provided in this rule, shall control all appeals of mediator disciplinary matters.

(1) The jurisdiction to seek review of disciplinary action shall be invoked by submitting filing an original and 1 copy of a Notice of Review of Mediator Disciplinary Action to the chief justice with the clerk of the supreme court within 30 days of the panel’s decision. A copy shall also be provided to the DRC.

(2) The notice of review shall be substantially in the form prescribed by rule 9.900(a), Florida Rules of Appellate Procedure. A copy of the panel decision shall be attached to the notice.

(3) Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.210, Florida Rules of Appellate Procedure, shall be served within 30 days of submitting the notice of review. Additional briefs shall be served as prescribed by rule 9.210, Florida Rules of Appellate Procedure.

(c) Standard of Review. The review shall be conducted in accordance with the following standard of review:

(1) The chief justice or designee shall review the findings and conclusions of the panel using a competent substantial evidence standard, neither reweighing the evidence in the record nor substituting the reviewer’s judgment for that of the panel.

(2) Decisions of the chief justice or des-ignee shall be final upon issuance of a mandate under rule 9.340, Florida Rules of Appellate Procedure.

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

      . The procedure for seeking review of a disciplinary action by a Mediator Qualifications and Discipline Review Board hearing panel was recently moved from rule 10.880 to rule 10.900 in In re Amendments to the Florida Rules for Certified and Court-Appointed Mediators, 202 So.3d 795 (Fla. 2016).

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.; § 44.106, Fla. Stat. (2016).

      . All comments must be filed with the Court on or before July 3, 2017, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.