text:
    Jose Antonio JIMENEZ, Petitioner, v. Pamela Jo BONDI, et al., Respondents.
    No. SC18-1975
    Supreme Court of Florida.
    December 12, 2018
    Martin J. McClain and Linda McDermott of McClain & McDermott, P.A., Wilton Manors, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, and Melissa Roca Shaw, Assistant Attorney General, Miami, Florida, for Respondents
   PER CURIAM.

This case is before the Court on the petition of Jose Antonio Jimenez, a prisoner under sentence of death and under an active death warrant, invoking the Court's authority to issue all writs necessary to the complete exercise of its jurisdiction, see art. V, § 3(b)(7), Fla. Const., based on the Court's ultimate jurisdiction under article V, section 3(b)(1) of the Florida Constitution. Jimenez challenges this Court's construction of an unpublished order regarding the post-warrant proceedings in his case, as well as this Court's authority to prohibit the filing of new claims in the circuit court by a death-sentenced defendant under an active death warrant after a deadline prescribed by this Court, without leave of this Court. In addition, Jimenez requests that we strike a finding in the prior unpublished order that his counsel violated an order of this Court by filing new claims in the circuit court after the deadline we established for doing so. Because this petition concerns an order we entered within our jurisdiction under article V, section 3(b)(1), and the relief sought, if granted, would have an immediate effect on specific actions counsel desires to take in relation to an active death warrant, we have jurisdiction under article V, section 3(b)(7). Cf. Bedford v. State , 633 So.2d 13, 14 (Fla. 1994). We exercise our discretion to accept jurisdiction over this petition.

Jimenez's petition relates to our unpublished order, entered November 21, 2018, granting in part and denying in part his motion for rehearing, reconsideration, or clarification. Jimenez's motion for rehearing, reconsideration, or clarification concerned our decision to withdraw a new scheduling order we had entered sua sponte on November 19, 2018, and to advise the parties that the schedule we set in a prior order, issued on July 18, 2018, and amended by order dated August 10, 2018, still governs Jimenez's post-warrant litigation. In the November 21 order at issue, we stated the following, in pertinent part:

[P]ursuant to this Court's August 10, 2018, order in SC18-1321, the deadline for proceedings in the trial court has passed and the parties have been directed that leave of this Court is required for further proceedings in the trial court. This direction was deemed necessary after Appellant's counsel violated this Court's scheduling order by bringing additional claims in the trial court after this Court's deadline to do so, and without leave of this Court. Those additional claims resulted in Case No. SC18-1321.
To the extent that this Court's vacated November 19, 2018, order created confusion, Appellant's motion is granted in part to clarify that no further proceedings in the trial court are authorized without prior leave of this Court. Appellant's motion is otherwise denied. Should Appellant seek leave from this Court in a future filing, Appellant is cautioned that because Appellant's death warrant was signed on July 18, 2018, the deadline has passed for requesting the production of public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3). Appellant is further cautioned that because all post-warrant issues have been fully litigated in Case Nos. SC18-1247 and SC18-1321, no further state court discovery or proceedings will be allowed without good faith allegations demonstrating good cause, such as newly discovered evidence, that would warrant additional state court post-warrant litigation.

Jimenez v. State , Nos. SC60-85014 & SC18-132 (Fla. Order filed Nov. 21, 2018).

Jimenez contends that, in determining that he violated our prior order, and in determining that the amended deadline for trial court proceedings set forth in the August 10 order precludes him from making new filings in the circuit court without leave of this Court to do so, we have misconstrued our own orders and ignored the principle of law that, once a mandate issues after an appeal, jurisdiction over the cause is returned to the circuit court. See State v. Miyasato , 805 So.2d 818, 824 (Fla. 2d DCA 2001) ("In general, the mandate in any case functions to end the jurisdiction of the appellate court and to return full jurisdiction of the case to the trial court."). He is mistaken.

Relevant Post-Warrant Proceedings

On July 18, 2018, in response to the Governor's scheduling of Jimenez's execution for August 14, 2018, we issued an order requiring that "[t]he proceedings pending in the trial court, if any, ... be completed and orders entered by 3:00 p.m., Tuesday, July 31, 2018." We then set a briefing schedule for "any proceeding that may come before this Court," requiring that the reply brief in any such proceeding be filed by August 8, 2018. Consistent with this Court's longstanding practice, this order was entered with no appeal pending. The order listed the case number from Jimenez's direct appeal, Case No. SC85014. Jimenez filed two motions in compliance with this schedule but also filed a new motion on August 6, 2018, in the circuit court, without leave of this Court to do so.

Although the August 6 filing violated this Court's order of July 18, 2018, no issue was made of this violation at that time, and the motion was considered by the circuit court and later this Court as though no such violation had occurred. On August 10, 2018, we entered an order amending the scheduling order, nunc pro tunc to the date of that order, to account for the late filing. We set a new deadline of August 10, 2018, at 4:00 p.m. for the completion of "[t]he proceedings pending in the trial court, if any," and then directed, "As that deadline has passed, no further proceedings in the trial court are permitted, including filings by either party, without prior leave of this Court." As explained in response to Jimenez's motion for rehearing, reconsideration, or clarification, this language was deemed necessary because counsel for Jimenez did not appear to understand that our order requiring the completion of all trial court proceedings by 3:00 p.m. on Tuesday, July 31, 2018, meant that he could not initiate new proceedings in the trial court after that date and time.

Analysis

In challenging our construction of the July 18 order, both as originally written and as amended, Jimenez contends that it did not preclude him from making new filings in the circuit court without leave of this Court because it encompassed only the "proceedings pending" on July 18. On the contrary, when this language is considered in context of the entire order and case, it precludes the institution of any new proceedings in the circuit court challenging Jimenez's death sentence or warrant, or his convictions, without leave of this Court. The order was entered in response to a death warrant due to the need to complete any proceedings that were to arise under our jurisdiction over death sentences by the time of the scheduled execution, and it set a schedule for "any proceeding that may come before this Court." Accordingly, the scheduling order, both as issued and as amended, prohibited the filing of new claims in the circuit court after the deadline set forth in that order.

Contrary to Jimenez's argument, the issuance of the mandate in the two postconviction appeals that ensued after the issuance of his death warrant did not render the scheduling order inoperable. The scheduling order was not issued solely for the purpose of our administration of those appeals or solely within our appellate jurisdiction over those appeals. It was entered before either appeal was filed and for the purpose of providing order in any proceedings that would challenge Jimenez's death sentence or the State's duty to carry it out, and to ensure that this Court would have sufficient time to consider any appeals Jimenez wished to bring before his scheduled execution.

To the extent that Jimenez challenges our authority to enter a post-warrant scheduling order that sets a deadline for completion of trial court proceedings, and after which no further trial court filings or actions are permitted, we reject that challenge. As explained by this Court long ago in State ex rel. Davis v. City of Avon Park , 117 Fla. 565, 158 So. 159, 164 (1934) : "Every court has inherent powers to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to, or not in conflict with, valid existing laws and constitutional provisions." That inherent power is granted generally by article II, section 3 of the Florida Constitution ("The powers of the state government shall be divided into legislative, executive and judicial branches."); article V, section 1 of the Florida Constitution ("The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts."); Article V, section 2(a) of the Florida Constitution ("The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review [and] the administrative supervision of all courts ...."); and article V, section 3(b)(1) of the Florida Constitution (granting the supreme court exclusive jurisdiction over appeals in death penalty cases). This Court's jurisdiction to "hear appeals from final judgments of trial courts imposing the death penalty," art. V, § 3(b)(1), includes "all types of collateral proceedings in death penalty cases," State v. Fourth Dist. Ct. of Appeal , 697 So.2d 70, 71 (Fla. 1997). See Fla. R. App. P. 9.040(a) ("In all proceedings a court shall have such jurisdiction as may be necessary for a complete determination of the cause."). For these reasons, we reject Jimenez's challenge to our authority to issue or enforce the deadlines set forth in our post-warrant scheduling order.

Of course, if Jimenez had a good faith basis for filing a new document in the circuit court, our November 19 and 21 orders plainly allowed him to request leave of this Court to do so. He did not.

We decline to strike our prior finding that Jimenez's counsel violated our scheduling order. After considering Jimenez's arguments in the petition at issue, we reaffirm that he violated the July 18 order, as originally written, when he filed a new motion on August 6 in the circuit court without leave of this Court to do so. However, we have not sanctioned him or his client for this violation because we accept that counsel's actions were born out of an honest misunderstanding of the scheduling order and its effect. We noted the violation originally for instructive purposes only and have addressed it here only because Jimenez's request for relief requires that we do so.

For the foregoing reasons, we exercise jurisdiction over Jimenez's all writs petition and deny it.

It is so ordered. No rehearing will be entertained by this Court.

CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion, in which LEWIS and QUINCE, JJ., concur.

PARIENTE, J., concurring in result.

On the very narrow issue presented in this case, I agree that Jimenez is not entitled to relief because he was not entitled to a new scheduling order after the stay previously issued by this Court was lifted and the execution date reset. However, I write to ensure that the majority's opinion not be construed as a condemnation of Jimenez's counsel, Marty McClain-a tireless and zealous advocate for defendants on death row for decades.

First, I caution that the majority's opinion should not be read to preclude future defendants under an active death warrant from filing claims for relief. In this case, some of the problems arose, in my view, from the extremely short warrant period-that is, the time between the signing of the warrant and the execution date.

Governor Scott signed Jimenez's death warrant on July 18, 2018, scheduling his execution for 27 days later-August 14, 2018. Jimenez v. State , 43 Fla. L. Weekly S433, --- So.3d ----, ----, 2018 WL 4784203, *21 (Fla. Oct. 4, 2018) (Pariente, J., concurring in part and dissenting in part). As I explained in our October 4 opinion:

This extremely short warrant period created a fire drill approach to the review of Jimenez's claims. It was not until after the postconviction court denied Jimenez's sixth successive postconviction motion (filed on August 6, 2018) that this Court entered a stay of execution. ... The postconviction court and Jimenez's attorneys were forced to race against the clock in reviewing and presenting all of Jimenez's claims, respectively. But for this Court entering a stay of execution as a result of Jimenez's second post-warrant appeal, this Court would have also had inadequate time to thoroughly review his claims.

Id.

Before an execution may proceed, this Court has the solemn obligation to carefully ensure that there are no constitutional bars to the execution and that the defendant's rights have been protected. See id. ("[S]ome claims, such as those challenging the execution method, cannot be raised or evaluated until the signing of the death warrant. At the least, defendants must have adequate time to investigate and raise and courts must have adequate time to properly review these warrant-based claims."). When the machinery of the State is used to execute someone, this Court must remain vigilant, even if claims arise at the last minute.

As to Jimenez's August 6 filing, which gave rise to case number SC18-1321 and our subsequent opinion, I cannot agree with this Court determining post hoc that counsel acted inappropriately by filing claims based on newly discovered evidence. See majority op. at 726. That claim arose out of public records produced after the Governor signed the death warrant and resulted in this Court issuing a stay of execution so we could properly address the case on the merits, which we did in our October 4 opinion. See generally Jimenez, 43 Fla. L. Weekly S433, ---- So.3d ----.

While I ultimately concurred in the opinion affirming the postconviction court's denial of Jimenez's successive motion for post-conviction relief regarding newly discovered evidence, Mr. McClain's motions raised claims that were important to review, as they involved possible concerns regarding Jimenez's guilt. Rather than criticizing Mr. McClain for filing that claim, I applaud Mr. McClain's decades of work in representing defendants on death row.

During my tenure on this Court, the State has executed fifty-seven individuals, and I have concurred in the overwhelming majority of all of these death warrant opinions or orders. Jimenez's will be the fifty-eighth execution in the State of Florida since I joined the Court. During that time, no advocate has been more dedicated or zealous than Mr. McClain in representing capital defendants at all stages of their cases, including the very difficult time period after a death warrant is signed and execution scheduled. Mr. McClain never gives up, and for that he should be praised-not chastised.

In conclusion, I concur with the majority's decision that, based on the facts of this case, Jimenez was not entitled to a new scheduling order. However, I disagree with the majority's discussion that could be construed as a criticism of Mr. McClain for filing claims of newly discovered evidence after receiving records from a post-warrant records request. This Court depends on attorneys like Marty McClain to advocate for death row defendants-never a popular cause but essential to ensuring that each execution withstands constitutional scrutiny.

LEWIS and QUINCE, JJ., concur.

      Prior to our November 19 order, Jimenez filed three new demands for public records in the circuit court, without leave of this Court to do so and in violation of our July 18 scheduling order, as amended on August 10 (which specifically stated that "no further proceedings in the trial court are permitted, including filings by either party, without prior leave of this Court"). Two of these requests were filed under rule 3.852(h)(3). As we cautioned in our November 21 order, these requests are untimely under the ten-day deadline set forth in rule 3.852(h)(3), as Jimenez's death warrant was signed on July 18, 2018. They are improper for the additional reason that rule 3.852(h)(3)"limits the request for production of additional public records under that subdivision to 'a person or agency from which collateral counsel has previously requested public records.' " Jimenez v. State , Nos. SC18-1247 & SC18-1321, --- So.3d ----, ----, 2018 WL 4784203, at *4 (Fla. Oct. 4, 2018). The third request was filed under rule 3.852(i), which requires the defendant to show that "the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence." Fla. R. Crim. P. 3.852(i)(1)(C). This request does not meet this requirement. However, the Department has filed a notice to the circuit court that it has complied with the demands in part, as a courtesy, by providing the requested medical records. Jimenez has not sought leave to file any proceeding in the circuit court after receiving these records.

      Since the death penalty was re-enacted after the United States Supreme Court held the death penalty unconstitutional in Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the State of Florida has executed ninety-six defendants.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Peter PERAZA, Respondent.
    No. SC17-1978
    Supreme Court of Florida.
    December 13, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Chief Assistant Attorney General, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, Florida, for Petitioner
    Eric T. Schwartzreich and Anthony J. Bruno of Schwartzreich & Associates, P.A., Fort Lauderdale, Florida, for Respondent
    Robert C. Buschel and Eugene G. Gibbons of Buschel Gibbons, P.A., Fort Lauderdale, Florida, for Amicus Curiae Fraternal Order of Police, Lodge # 31
   LAWSON, J.

This case is before the Court for review of State v. Peraza , 226 So.3d 937 (Fla. 4th DCA 2017). In Peraza , the Fourth District Court of Appeal certified that its decision directly conflicts with State v. Caamano , 105 So.3d 18 (Fla. 2nd DCA 2012), on the same question of law. The Fourth District also ruled upon and certified the following question as one of great public importance:

WHETHER A LAW ENFORCEMENT OFFICER, WHO WHILE MAKING A LAWFUL ARREST, USES DEADLY FORCE WHICH HE OR SHE REASONABLY BELIEVES IS NECESSARY TO PREVENT IMMINENT DEATH OR GREAT BODILY HARM TO HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE IMMINENT COMMISSION OF A FORCIBLE FELONY, IS LIMITED TO INVOKING A DEFENSE UNDER SECTION 776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY FROM CRIMINAL PROSECUTION UNDER SECTIONS 776.012(1) AND 776.032(1), FLORIDA STATUTES (2013), MORE COMMONLY KNOWN AS FLORIDA'S "STAND YOUR GROUND" LAW.

Peraza , 226 So.3d at 948. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we resolve the certified conflict and answer the certified question by holding that law enforcement officers are eligible to assert Stand Your Ground immunity, as held by the Fourth District.

BACKGROUND

On the afternoon of July 31, 2013, Jermaine McBean purchased an air rifle from a pawn shop and proceeded to carry it uncovered as he walked back to his apartment complex. A concerned citizen called the police to report that McBean appeared distraught and was acting in an aggressive manner as he walked with a weapon, reported as a firearm. It would later be revealed that McBean suffered from mental health disorders and had been hospitalized a week earlier after experiencing a mental breakdown.

Deputy Peter Peraza of the Broward County Sheriff's Office responded to an emergency police dispatch alerting officers to McBean's demeanor while walking down a highly trafficked public street displaying what appeared to be a shotgun or rifle. Deputy Peraza and another deputy quickly arrived at McBean's location and, walking closely behind him, issued loud and repeated commands for McBean to stop. Ignoring the commands, McBean turned into a nearby apartment complex and continued walking toward the apartment's gated pool. McBean finally stopped alongside the pool area but kept holding the weapon while facing away from the officers. He then brought the rifle over his head, turned towards the deputies and pointed the weapon directly at them. When Deputy Peraza perceived that McBean was aiming the weapon at him, Peraza fired his gun three times and shot McBean twice, killing him. These are the facts as found by the trial court after an evidentiary hearing. Although one witness testified that McBean did not point the weapon at the deputies, the trial judge rejected this testimony and resolved all factual disputes consistently with Deputy Peraza's self-defense theory.

After being indicted for manslaughter with a firearm, Deputy Peraza moved to dismiss the indictment, citing immunity from prosecution under sections 776.012(1) and 776.032(1), Florida Statutes (2013), commonly known as Florida's "Stand Your Ground" law, and under section 776.05, Florida Statutes (2013). After the evidentiary hearing, the judge made the findings set forth above and granted Deputy Peraza's motion to dismiss based upon Stand Your Ground immunity.

The State appealed, arguing that law enforcement officers are not eligible to assert immunity pursuant to the Stand Your Ground law because they are already provided a defense pursuant to section 776.05, which involves the justifiable use of force when making a lawful arrest. The State's argument on appeal was consistent with the holding in Caamano , 105 So.3d at 22. Significantly, a defense pursuant to section 776.05 (which does not use the term "immunity") is not subject to pretrial determination when facts are in dispute, and may only be presented as a defense at trial, before a jury.

The Fourth District disagreed with Caamano and held that a police officer making a lawful arrest may claim Stand Your Ground immunity and thereby secure a pre-trial immunity determination, just like any other person acting in self-defense in Florida. Peraza , 226 So.3d at 947.

ANALYSIS

The certified question presents an issue of statutory construction, which we review de novo. Borden v. East-European Ins. Co. , 921 So.2d 587, 591 (Fla. 2006). The starting point for any statutory construction issue is the language of the statute itself-and a determination of whether that language plainly and unambiguously answers the question presented. Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ("[W]hen the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.") (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931). This Court is "without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications." Id. (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams , 212 So.2d 777, 778 (Fla. 1st DCA 1968) ).

Section 776.012, part of the Stand Your Ground law, provides in pertinent part that

a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another ....

§ 776.012(2), Fla. Stat. (2013). Section 776.032, titled "Immunity from criminal prosecution and civil action for justifiable use of force," and also part of the Stand Your Ground law, provides in relevant part that

[a] person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force ....

§ 776.032(1), Fla. Stat. (2013) (emphasis added).

Because these statutes plainly and unambiguously afford Stand Your Ground immunity to any "person" who acts in self-defense, there should be no reason for further analysis. See Holly , 450 So.2d at 219. Put simply, a law enforcement officer is a "person" whether on duty or off, and irrespective of whether the officer is making an arrest. Although neither of the two statutes defines the word "person," it must be given its "plain and ordinary meaning." Green v. State , 604 So.2d 471, 473 (Fla. 1992). In common understanding, "person" refers to a "human being," Webster's Third New International Dictionary 1686 (1993 ed.), which is not occupation-specific and plainly includes human beings serving as law enforcement officers.

In reaching its contrary conclusion, the Second District Court of Appeal reasoned:

In construing a statute, a court's purpose is to give effect to legislative intent, which is the polestar that guides the court in statutory construction. In order to determine legislative intent, one must first look to the actual wording of the statute and give it its appropriate meaning. Then, the doctrine of in pari materia applies. This doctrine is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent. Consequently, related statutory provisions must be read together to achieve a consistent whole and where possible, courts must give full effect to all statutory provisions in harmony with one another.
Further, when construing multiple statutes addressing similar subjects, the specific statute ... covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.

Caamano , 105 So.3d at 20-21 (internal quotation marks and citations omitted).

The Fourth District criticized the Caamano court's analysis, explaining:

The source of our disagreement with Caamano appears to arise from the following statement from that case: "In order to determine legislative intent, one must first look to the actual wording of the statute and give it its appropriate meaning. Then, the doctrine of in pari materia applies. " 105 So.3d at 20 (emphasis added). Respectfully, to suggest that the doctrine of in pari materia applies in every case is incorrect as a matter of law. As the circuit court correctly found in this case, because sections 776.012(1)'s and 776.032(1)'s plain language is clear and unambiguous, Caamano "need not have gone into the doctrine of in pari materia at all." See English v. State , 191 So.3d 448, 450 (Fla. 2016) ("When the statutory language is clear or unambiguous, this Court need not look behind the statute's plain language or employ principles of statutory construction to determine legislative intent.") (emphasis added).

226 So.3d at 947.

Although we generally agree with the Fourth District's analysis, we also recognize that the Second District was attempting to harmonize arguably related statutes. As the Second District's analysis recognizes, given the question presented in this case and the arguments made, some consideration of section 776.05, Fla. Stat., is necessary in order to determine whether it creates an ambiguity not otherwise apparent on the face of sections 776.012(1) and 776.032(1), Fla. Stat. This is true because "[w]here possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another." M.W. v. Davis , 756 So.2d 90, 101 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 455 (Fla. 1992) ).

Section 776.05 was originally enacted in 1974, see chapter 74-383, Laws of Florida, and in relevant part provides that "[a] law enforcement officer ... need not retreat or desist from efforts to make a lawful arrest because of resistance ... [and is] justified in the use of any force ... [w]hich he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest." § 776.05, Fla. Stat. At the heart of the State's argument lies the observation that the defense recognized in this law enforcement use of force statute, section 776.05, may overlap in some cases with the defense created in section 776.012 ("[A] person is justified in the use of deadly force and does not have a duty to retreat if ... [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another"). In other words, there may be cases in which a person justified in the use of deadly force under section 776.012 is also a law enforcement officer justified in the use of force under section 776.05. In such cases, two different statutes would authorize a defense against criminal or civil liability. Giving effect to all statutory provisions in such cases necessarily means that a law enforcement officer who claims that his or her use of force was justified under both statutes must be permitted to assert a defense under either or both-because the Legislature plainly provided for both defenses and there is nothing in the actual language of either statute that purports to abrogate the other.

More importantly, what Deputy Peraza is asserting here is not simply a defense. Deputy Peraza is asserting immunity from prosecution. Therefore, the real question, clearly and precisely framed, is whether Deputy Peraza is "immune from criminal prosecution" such that he is entitled to a pretrial immunity determination. That immunity is addressed only in section 776.032(1), which plainly says that the immunity is afforded to any "person who uses force as permitted in s. 776.012." § 776.032(1). The State has pointed to no language from any statute, including section 776.05, that could reasonably be read as negating the plain and unambiguous language of the only statute affording the pretrial immunity determination that Deputy Peraza seeks.

We also recognize that the Second District's analysis reflects a good faith attempt to ferret out what the Legislature "intended" when it enacted a defense that partially overlapped a pre-existing defense. Although this Court has at times heralded the search for legislative "intent" as the first step and ultimate goal of all statutory analysis, see, e.g. , Bankston v. Brennan , 507 So.2d 1385, 1387 (Fla. 1987), we have also treated inquiry into the Legislature's "intent" as a secondary analysis to be employed when construing an ambiguous statute. See, e.g. , Lowry v. Parole & Probation Comm'n , 473 So.2d 1248, 1249 (Fla. 1985). Moreover, this Court has held that "[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." St. Petersburg Bank & Trust Co. v. Hamm , 414 So.2d 1071, 1073 (Fla. 1982) (quoting Van Pelt v. Hilliard , 75 Fla. 792, 78 So. 693, 694 (1918) ). Because even a clearly discernible Legislative intent cannot change the meaning of a plainly worded statute, it would only confuse matters to focus on what the Legislature might have intended rather than what the statute actually says. As recently explained in Shepard v. State , 259 So.3d 701, 703-04, 2018 WL 5660550 (Fla. Nov. 1, 2018), "where the Court is tasked with construing a statute, our first (and often only) step ... is to ask what the Legislature actually said in the statute, based upon the common meaning of the words used." (Internal quotation marks and citation omitted.) Here, the plain language of section 776.032(1) answers the question presented.

CONCLUSION

For the foregoing reasons, we resolve the certified conflict and answer the certified question by holding that law enforcement officers are eligible to assert Stand Your Ground immunity, even when the use of force occurred in the course of making a lawful arrest. Based upon the trial court's findings of fact, Deputy Peraza is entitled to that immunity and is therefore immune from criminal prosecution. Accordingly, we approve the Fourth District's decision and disapprove the Second District's decision.

It is so ordered.

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

      The Fourth District also found this case distinguishable from Caamano based upon a secondary finding by the trial court that Deputy Peraza was not making an arrest when he shot McBean. Peraza , 226 So.3d at 946. This is legally significant because section 776.05 immunity only applies when an officer is making an arrest. § 776.05(1), Fla. Stat. (2013). Because we have jurisdiction based upon the certified conflict, see art. V, § 3(b)(4), Fla. Const., and the certified question, see id. , we have elected to address the issue presented by the certified question, which renders analysis of the distinguishing fact unnecessary.

      Because "there is no occasion for resorting to the [secondary] rules of statutory interpretation and construction" when "the language of the statute is clear and unambiguous and conveys a clear and definite meaning," Holly , 450 So.2d at 219, these different directives are arguably at odds. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 312-14 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part).


author: CANADY, C.J.

text:
    Dante MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-200
    Supreme Court of Florida.
    December 13, 2018
    Rupak R. Shah of Escobar & Associates, P.A., Tampa, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau Chief, Kristen L. Davenport and Bonnie Jean Parrish, Assistant Attorneys General, Daytona Beach, Florida, for Respondent
    Michael R. Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida; and M. Stephen Turner of M. Stephen Turner, P.A., Tallahassee, Florida, For Amicus Curiae Florida Association of Criminal Defense Lawyers
    Arthur (Buddy) Jacobs of Jacobs Scholz & Associates LLC, Fernandina Beach, Florida, for Amicus Curiae Professor Gregory S. Parks for HazingPrevention.org
   CANADY, C.J.

For conduct committed in connection with the activities of the Florida A & M University's marching band, the Marching 100, Dante Martin was convicted of manslaughter, felony hazing resulting in death, and two counts of misdemeanor hazing. On appeal, the Fifth District Court of Appeal affirmed his convictions and sentences and rejected overbreadth and void-for-vagueness arguments Martin presented challenging the constitutionality of section 1006.63, Florida Statutes (2012), Florida's hazing statute. Martin sought review under article V, section 3(b)(3) of the Florida Constitution, based on the Fifth District's express declaration that the hazing statute is valid.

We granted jurisdiction, and we now consider Martin's various challenges to the constitutionality of the statute. Our analysis leads us to agree with the Fifth District's conclusion that Martin has presented no basis for declaring the hazing statute unconstitutional. We therefore approve the decision on review.

In explaining our decision, we begin with a review of the text of the hazing statute. We then briefly recount the facts regarding the episode involving the Marching 100 that was the basis for Martin's convictions. Next, we summarize the ruling of the district court rejecting Martin's arguments that the hazing statute is constitutionally invalid. Finally, we discuss the application of the relevant case law to Martin's overbreadth and void-for-vagueness claims regarding the hazing statute.

I.

The hazing statute, section 1006.63, contains both criminal and regulatory provisions. Subsection (1) provides a definition of hazing-including language specifically excluding from its coverage certain conduct-that is applicable to both the criminal and regulatory provisions. The specific criminal provisions are set forth in subsections (2)-(6), and the regulatory provisions are found in subsections (7)-(10). This case, of course, raises questions related to the criminal provisions. Of particular relevance here are the definition of hazing in subsection (1); the provisions of subsection (2) establishing the offense of third-degree felony hazing; the provisions of subsection (3) establishing the offense of first-degree misdemeanor hazing; and the provision of subsection (5) providing that certain enumerated circumstances are not defenses to a charge of hazing.

The definition of hazing is, of course, critically important to determining the scope of criminal liability under the statute. An act is not punishable as a crime under the statute unless it falls within the ambit of that definition. But an act may come within the definition of hazing and still not be a criminal offense. The provisions establishing felony hazing and misdemeanor hazing both contain additional elements that go beyond the definition of hazing. An examination of those elements readily reveals that they substantially narrow the scope of criminal liability under the hazing statute.

(1) As used in this section, "hazing" means any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution . "Hazing" includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating , branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student. Hazing does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective.

§ 1006.63(1), Fla. Stat. (emphasis added).

The offense of felony hazing is established in subsection (2):

A person commits hazing, a third degree felony, punishable as provided in s. 775.082 or s. 775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person .

§ 1006.63(2), Fla. Stat. (emphasis added).

Subsection (3) creates the offense of misdemeanor hazing:

A person commits hazing, a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing creates a substantial risk of physical injury or death to such other person .

§ 1006.63(3), Fla. Stat. (emphasis added).

Subsection (5) contains a provision that negates certain potential defenses to a hazing charge:

It is not a defense to a charge of hazing that:
(a) The consent of the victim had been obtained;
(b) The conduct or activity that resulted in the death or injury of a person was not part of an official organizational event or was not otherwise sanctioned or approved by the organization ; or
(c) The conduct or activity that resulted in death or injury of the person was not done as a condition of membership to an organization.

§ 1006.63(5), Fla. Stat. (emphasis added).

As pertinent here, the definition of hazing extends to an "action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student." § 1006.63(1), Fla. Stat. A significant strand in the definition of hazing expressly extends its coverage to "any brutality of a physical nature, such as whipping" or "beating." Id. "[C]ustomary athletic events or other similar contests or competitions" are expressly excluded from the definition of "hazing." Id.

The offenses of felony hazing and misdemeanor hazing both require that the offender "intentionally or recklessly commits an[ ] act of hazing." § 1006.63(2) - (3), Fla. Stat. And the two offenses both contain an additional element related to the consequence of the act of hazing. The felony offense requires that "the hazing results in serious bodily injury or death" of the victim. § 1006.63(2), Fla. Stat. For the misdemeanor offense to be established, the act of hazing must "create[ ] a substantial risk of physical injury or death" to the victim. § 1006.63(3), Fla. Stat.

Under subsection (5), the consensual participation of the victim in the event or situation that constitutes hazing is not a defense. § 1006.63(5)(a), Fla. Stat. Likewise, it is no defense that the hazing was not officially sanctioned or that it "was not done as a condition of membership." § 1006.63(5)(b)-(c), Fla. Stat.

II.

On appeal from the judgment and sentences, the Fifth District set out the facts of the crimes:

[Martin] was a member of the percussion section of the Florida A & M University's marching band, the "Marching 100." Members of the percussion section are entitled to ride to away events in a motor coach known as "Bus C." [Martin] was president of Bus C.
A tradition or ritual known as "Crossing Bus C" has existed at the University for some time. The ritual consists of three components: 1) the hot seat, 2) the prepping, and 3) the crossing. During the hot seat, the participant takes a seat on Bus C (near the front) and is struck or hit repeatedly by others, including members of the percussion section. Next, the participant is prepped. During the prepping, the participant stands up and places his or her hands on the luggage rail and is then slapped a number of times with full force by the others on the bus. After the prepping, the participant crosses from the front of the bus to the back while others slap, kick, and punch the participant. [Martin], as bus president, decided when someone could cross Bus C.
On [November 19, 2011], Keon Hollis, Robert Champion, and [Martin], as members of the Marching 100, performed at the Florida Classic in Orlando, Florida. Immediately following the band's performance, [Martin] asked Hollis if he planned to cross the bus. Hollis indicated that he wanted to do so. Later, Jonathan Boyce, also a member of the band, received a text from [Martin] asking him to convey to Hollis and Champion that if they wanted to cross "it's available" to them.
That night, Lissette Sanchez (another member of the percussion section), Hollis, and Champion crossed Bus C, and [Martin] participated in these crossings. Champion was the last to cross. When Champion made it to the back, he appeared tired, but indicated, "I'm good."
After the crossings were completed, everyone left the bus except Champion. When Boyce noticed that Champion was not with him, he returned to the bus. He found Champion in the back of the bus panicking; and, shortly thereafter, Champion passed out. Champion was taken to a hospital, but efforts to save his life were not successful.
Champion's body was transferred from the hospital to the medical examiner's office. Dr. Sarah Irrgang, the associate medical examiner, visually examined Champion's body. She observed some discoloration and a few superficial abrasions, she took several photographs, and then released Champion's body for bone harvesting. The next day, after his leg bones had been harvested, Champion's body was returned to the medical examiner's office. At that time, Dr. Irrgang noticed unevenness in the skin on Champion's torso, suggesting swelling. This observation prompted Dr. Irrgang to investigate further. She took a number of pictures of Champion's body during the ensuing autopsy. Based on her investigation, she determined that the manner of death was homicide.

Martin v. State , 207 So.3d 310, 313-14 (Fla. 5th DCA 2016).

III.

In evaluating Martin's overbreadth and vagueness challenges, the Fifth District began by acknowledging the analytical framework set forth by the Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. :

When addressing constitutional challenges to statutes based on the doctrines of overbreadth and vagueness,
[a] court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
State v. Kahles , 644 So.2d 512, 512-13 (Fla. 4th DCA 1994) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ), approved , 657 So. 2d 897 (Fla. 1995) (footnotes omitted).

Martin , 207 So.3d at 314-15.

In line with this framework, the Fifth District first considered Martin's argument that the hazing statute is unconstitutionally overbroad on its face. The district court rejected Martin's argument on this point because Martin failed to make the necessary showing that the hazing statute "is susceptible of application to speech or conduct protected by the First Amendment." Id. at 316. According to the Fifth District, Martin "ha[d] not demonstrated that the hazing statute criminalizes any speech or conduct protected by the First Amendment" and "his overbreadth challenge [therefore] fails." Id. The court also rejected an as-applied overbreadth challenge, concluding that Martin had not shown "that the hazing statute criminalized his own conduct, which was protected by the First Amendment." Id.

After addressing the overbreadth challenges, the court turned to Martin's argument that the hazing statute is unconstitutionally vague. In brief, the district court ruled that Martin's conduct was "plainly prohibited by the statute," and that Martin therefore "lack[ed] standing to challenge the statute." Id. at 317. Specifically, the court rejected the argument that the reference in the statutory definition of hazing to "brutality of a physical nature" was vague. Id. The court reasoned that because the victims "were beaten repeatedly," the defendant's participation in the episode violated the plain terms of the statute. Id. Similarly, the court rejected Martin's argument that the statutory exception for "competitions" was vague. In doing so, the court referred to certain dictionary definitions of "competition"-including the definition in Webster's Third New International Dictionary of competition as "a common struggle for the same object"-to show that the term "competition" "is sufficiently definite such that the defendant was not forced to guess at its meaning." Id. at 317-18.

IV.

A.

We first examine Martin's argument that the hazing statute is unconstitutionally overbroad on its face for criminalizing constitutionally protected speech and conduct. Martin bases this overbreadth argument specifically on the claim that subsection (5)(a) of the hazing statute-which provides that the victim's consent is not a defense-makes criminal a substantial amount of protected speech and conduct. Martin contends that the "statute's criminalization of voluntary acts in many circumstances chills commonplace and customary conduct." This argument fails to show that the criminal hazing statute meets the standard required for establishing that a statute is unconstitutionally overbroad.

Under the First Amendment facial overbreadth doctrine, "[l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma , 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The Court has said that the "function" of "facial overbreadth adjudication" is "a limited one at the outset" and that it "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." Id. at 615, 93 S.Ct. 2908.

The Court thus has recognized that "[a]lthough such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe." Id. The overbreadth doctrine therefore requires that "particularly where conduct and not merely speech is involved ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. ; see also United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ("According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.... In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep."). "Application of the overbreadth doctrine ... is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort." Broadrick , 413 U.S. at 613, 93 S.Ct. 2908.

As pointed out in the earlier discussion of the text of the hazing statute, the criminal provisions of the statute require that "the hazing results in serious bodily injury or death" (for a felony offense) or that "the hazing creates a substantial risk of physical injury or death" (for a misdemeanor offense). § 1006.63(2) - (3), Fla. Stat. The focus of the criminal hazing statute thus undoubtedly is on physical harm and the risk of physical harm. Any impact on speech or expressive conduct is insubstantial and purely incidental to the purpose of preventing physical harm. Given the "plainly legitimate sweep" of the hazing statute, it cannot be said that the statute "prohibits a substantial amount of protected speech." The "strong medicine" of the overbreadth doctrine has no application in this context. Martin's overbreadth challenge fails.

B.

We turn now to Martin's void-for-vagueness claims, in which he argues that the hazing statute is unconstitutionally vague not only as applied to him but also on its face. His as-applied argument is based largely on the assertion that the term "competition" in the last sentence of the definition of hazing in subsection (1) "lacks precision." In brief, Martin contends that because "the bus crossing bore sufficient indicia of being a competition," the statute was unconstitutional as applied to him. Martin's argument that the statute is facially invalid relies more broadly on the last sentence of the definition of hazing. He contends that uncertainty in the interpretation of the terms contained in that sentence-which excludes certain categories of conduct from the scope of the definition of hazing-renders the statute void for vagueness in "its entirety." Martin has failed to establish that the statute is invalid either facially or as-applied.

It has long been recognized "[t]hat the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties" and that "a statute which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. Gen. Constr. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado , 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

In discussing the standards governing facial vagueness challenges, the Court has previously said that a law is facially unconstitutional only if it "is impermissibly vague in all of its applications." Hoffman Estates , 455 U.S. at 495, 102 S.Ct. 1186 ; see also United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("A facial challenge to a legislative Act is[-outside the limited context of the First Amendment overbreadth doctrine-]the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."). But the Court more recently explained in Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 2560-61, 192 L.Ed.2d 569 (2015), that "although statements in some of [the Court's] opinions could be read to suggest otherwise, [the Court's] holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp." The Court this year reinforced the point in Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 1214 n.3, 200 L.Ed.2d 549 (2018) (" Johnson made clear that our decisions 'squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp.' " (quoting Johnson , 135 S.Ct. at 2561 ) ).

Thus a "shapeless," Johnson , 135 S.Ct. at 2560, "hopeless[ly] indetermina[te]," id. at 2558, statute that produces "grave uncertainty," id. at 2557, regarding its scope will not survive a facial vagueness challenge even though "some conduct ... clearly falls within the provision's grasp," id. at 2561. See Salman v. United States , --- U.S. ----, 137 S.Ct. 420, 428-29, 196 L.Ed.2d 351 (2016) (rejecting an as-applied vagueness challenge in part because the petitioner failed to demonstrate that the statute was "shapeless," plagued by "hopeless indeterminacy," or subject to "grave uncertainty" regarding its scope (quoting Johnson , 135 S.Ct. at 2557, 2558, 2560 ) ). Put another way, a statute that contains "no standard whatever by which criminality c[an] be ascertained ... is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' " Parker v. Levy , 417 U.S. 733, 755, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Coates v. City of Cincinnati , 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) ); see Smith v. Goguen , 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) ("Such a provision simply has no core.").

To understand the proper scope of the void-for-vagueness doctrine, that doctrine must be viewed in conjunction with the rule of lenity. In Skilling v. United States , 561 U.S. 358, 403, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), the Court-in rejecting a void-for-vagueness challenge-recognized that the "case law's current" requires courts if possible "to construe, not condemn, [legislative] enactments." The Court there pointed generally to the well-established rule that "before striking a ... statute as impermissibly vague" courts should "consider whether the prescription is amenable to a limiting construction," id. at 405, 130 S.Ct. 2896, and specifically to "the familiar principle that 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' " id. at 410, 130 S.Ct. 2896 (quoting Cleveland v. United States , 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) ). We have likewise applied the rule of lenity to resolve an ambiguity in the scope of a criminal statute rather than declaring the statute unconstitutionally vague. See State v. Weeks , 202 So.3d 1, 4 (Fla. 2016) (rejecting void-for-vagueness challenge, applying the rule of lenity and stating that "by applying well-established principles of statutory construction, we conclude that we are able to construe the statute in a manner that avoids holding it unconstitutionally vague and does not effectively rewrite the statute"). Run-of-the-mill ambiguity regarding particular applications of a criminal statute therefore does not warrant application of the void-for-vagueness doctrine. Cf. Dimaya , 138 S.Ct. at 1232 (Gorsuch, J., concurring in part and concurring in judgment) ("The implacable fact is that this isn't your everyday ambiguous statute. It leaves the people to guess about what the law demands-and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation.").

Here, at most, the various detailed arguments that Martin raises concerning the terms of the hazing statute do not point to anything that goes beyond run-of-the-mill ambiguity. And no actual ambiguity in the terms of the statute has been identified by Martin that has any bearing on the offenses for which Martin was convicted. The conduct in which Martin was involved falls squarely and unambiguously within the statute's core proscription of "brutality of a physical nature, such as whipping" or "beating" that "intentionally or recklessly" "results in serious bodily injury or death" or "creates a substantial risk" of such harms. § 1006.63(1) - (3), Fla. Stat.

We categorically reject Martin's argument that section 1006.63(1) failed to place him on adequate notice that "Crossing Bus C" is not an exempt "competition[ ]" under the statute and failed to provide explicit standards of enforcement for the undefined term "competition[ ]." Martin's argument on this score is based on reading the term "competition[ ]" in isolation from its statutory context. The final sentence of the definition of hazing provides that hazing "does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective." § 1006.63(1), Fla. Stat. The most natural reading of this sentence requires understanding that the word "similar" modifies the terms "contests or competitions." See id.

This conclusion is bolstered by the fact that "customary athletic events" such as football, baseball, basketball, soccer, and hockey as well as track and field events are commonly referred to both as "contests" and "competitions." Indeed, "competition" and "contest" are ordinarily understood to be synonymous. See The American Heritage Dictionary 376, 397 (5th ed. 2011) (defining the term "competition" as "a contest" and defining the term "contest" as "[a] competition, especially one in which entrants perform separately and are rated by judges"). This conclusion is further bolstered by the fact that in order to interpret the word "similar" as disjunctive to the term "competition[ ]," this Court would have to adopt the nonsensical view that a "customary athletic event[ ]" is not, in fact, a "competition[ ]." See § 1006.63(1), Fla. Stat.

Therefore, the relevant question is not whether the term "competition[ ]" is vague, but rather whether the term "similar ... competition[ ]" is vague. It is not. The tradition or ritual known as "Crossing Bus C" is not a "similar ... competition[ ]" to any "customary athletic event[ ]." See id. The crossing of Bus C simply does not comport with any commonly accepted understanding of a "competition[ ]" similar to a "customary athletic event[ ]": the person crossing is not competing against another person or group of persons, no one keeps score during the crossing because there is no system of scoring, the crossing is not timed, no prize is awarded after the crossing, no referee oversees the crossing (either to enforce rules or protect the life of the participant), and the participant "wins" the crossing by surviving a brutal beating. To the contrary, the crossing most closely resembles the infamous military punishment known as the "running of the gauntlet."

V.

We approve the conclusion that Martin's challenges to the constitutionality of the hazing statute are without merit. We therefore approve the decision of the Fifth District affirming Martin's convictions and sentences.

It is so ordered.

QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

PARIENTE and LEWIS, JJ., concur in result.

      455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).


author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-07.
    No. SC18-1478
    Supreme Court of Florida.
    December 13, 2018
    Judge F. 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
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions, including amendments to two instructions, the deletion of one instruction, and the creation of two new instructions. The Committee asks the Court to authorize the new and amended standard jury instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard criminal jury instructions 3.6(o) (Transferred Intent) and 3.9(c) (Eyewitness Identification). In addition, the Committee proposes deleting standard criminal jury instruction 8.8 (Aggravated Stalking (Victim under 16 years of age) ) and creating new instructions 8.27 (Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult) and 8.28 (Violation of a Risk Protection Order). Following publication in The Florida Bar News , no comments were received by the Committee. The more significant amendments to the instructions are discussed below.

First, revisions are made to instruction 3.9(c) to provide clarification and improve readability. Instruction 3.9(c) is amended to add "[live] [photo]" before the word "lineup" in appropriate places and "photo" before the word "lineup" where the instruction solely refers to a photo lineup.

Next, the Committee proposes deleting instruction 8.8 because there are two standard instructions that pertain to section 784.048(5), Florida Statutes (2018), aggravated stalking of a victim under 16 years of age-criminal jury instructions 8.7(c) and 8.8. The Committee proposes keeping instruction 8.7(c) and deleting instruction 8.8 since 8.7(c) is the more up-to-date instruction.

Additionally, we authorize new instruction 8.27, which the Committee created in response to the enactment of section 825.1036(4), Florida Statutes (2018), effective July 1, 2018. See ch. 2018-100, § 3, Laws of Fla. In section 825.1036(4), the Legislature created a first-degree misdemeanor crime for a person who willfully violates an injunction for protection against a vulnerable adult in an enumerated way. New instruction 8.27 instructs jurors as to the elements of that crime.

Last, we authorize new instruction 8.28, which the Committee created in response to the enactment of section 790.401, Florida Statutes (2018). See ch. 2018-3, § 15, Laws of Fla. In section 790.401(11)(b), the Legislature created a new crime for a person who has in his or her custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition with knowledge that he or she is prohibited from doing so by a risk protection order. New instruction 8.28 instructs jurors as to the elements of that crime.

Having considered the Committee's report, we authorize for publication and use new and amended instructions 3.6(o), 3.9(c), 8.27, and 8.28, as proposed, and as set forth in the appendix to this opinion. We delete instruction 8.8 as proposed by the Committee and reserve that instruction number for future 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 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 set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

3.6(o) TRANSFERRED INTENT

If a person intends to [hit] [strike] [shoot] a person, and in the process [hits] [strikes] [shoots] a different person, the law transfers the intent to [hit] [strike] [shoot] from the person who was aimed at the intended person to any person who was actually [hit] [struck] [shot].

Comments

See State v. Brady, 745 So.2d 954 (Fla. 1999) andNelson v. State, 853 So.2d 563 (Fla. 4th DCA 2003). Also, inMordica v. State, 618 So.2d 301, 303 (Fla. 1st DCA 1993), the First District rejected the contention that the doctrine of transferred intent is applicable only where the defendant entirely misses the intended victim and hits the unintended victim.

The doctrine of transferred intent may not apply to the crime of Attempted First-Degree Murder.See Bell v. State, 768 So.2d 22 (Fla. 1st DCA 2000)(stating that if the issue is whether the defendant attempted to murder multiple victims, then such specific intent is not subject to transfer but rather such intent should be independently evaluated as to each victim);but see Frederick v. State, 93 So.3d 445 (Fla. 4th DCA 2012)(holding that the giving of a transferred intent instruction was not fundamental error because defendant was not charged with attempting to murder multiple victims).

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2017 [228 So.3d 87] and 2018.

3.9(c) EYEWITNESS IDENTIFICATION

Give if eyewitness identification is a disputed issue and if requested.

You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:

1. The capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance.
2. Whether the identification was the product of the eyewitness's own recollection or was the result of influence or suggestiveness.
3. The circumstances under which the defendant was presented to the eyewitness for identification.
4. Any inconsistent identifications made by the eyewitness.
5. Any instance in which the eyewitness did not make an identification when given the opportunity to do so.
6. The witness's familiarity with the subject identified.
7. Lapses of time between the event and the identification[s].
8. Whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification.
9. The totality of circumstances surrounding the eyewitness's identification.

Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.

You have heard testimony concerning a [live] [photo] lineup conducted by a law enforcement agency. Florida law requires that the person conducting the [live] [photo] lineup must not have participated in the investigation of the crime alleged and must not have been aware of which person in the [live] [photo] lineup was the suspect.

When an independent administrator was not used. Give as applicable.

As an alternative, it is permissible under Florida law if

[an automated computer program automatically administered the photo lineup directly to an eyewitness and prevented the person conducting the photo lineup from seeing which photograph the eyewitness viewed until after the procedure was completed.]

[photographs were placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the person conducting the photo lineup did not see or did not track which photograph was presented to the eyewitness until after the procedure was completed.]

[the photo lineup procedure achieved neutral administration and prevented the person conducting the photo lineup from knowing which photograph was presented to the eyewitness during the identification procedure.]

Give in all cases involving a lineup.

Also, before conducting a [live] [photo] lineup, the eyewitness must be instructed that:

1. The perpetrator might or might not be in the [live] [photo] lineup;

Give #2 only when an independent administrator was used.

2. The person conducting the [live] [photo] lineup does not know the suspect's identity;
3. The eyewitness should not feel compelled to make an identification;
4. It is as important to exclude innocent persons as it is to identify the perpetrator; and
5. The investigation will continue with or without an identification.

The eyewitness must acknowledge, in writing, that he or she received a copy of the [live] [photo] lineup instructions. If the eyewitness refused to sign a document acknowledging receipt of the instructions, the person conducting the [live] [photo] lineup must document the refusal of the eyewitness to sign a document acknowledging receipt of the instructions, and the person conducting the [live] [photo] lineup must sign the acknowledgment document himself or herself.

You may consider compliance or noncompliance with these requirements to determine the reliability of an eyewitness identification made during a [live] [photo] lineup procedure.

Comment

This instruction was adopted in 2013 [141 So.3d 132] and amended in 2013 [122 So.3d 302],and 2018 [238 So.3d 192], and 2018.

8.8 AGGRAVATED STALKING (Victim under 16 years of age) § 784.048(5), Fla. Stat.

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

1. (Defendant) willfully, maliciously, and repeatedly [followed]
2. [harassed] [or] [cyberstalked] (victim); and,
3. At the time of (defendant's) actions, (victim) was under 16 years of age.

Definitions.

"Harass" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Lesser Included Offenses

AGGRAVATED STALKING (Victim under 16 years of age) 784.048(5) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Stalking 784.048(2) 8.6 Attempt 777.04(1) 5.1 Violation of injunction 741.31(4) 8.18 for protection against domestic violence

Comment This instruction is based on the text of section 784.048(5), Florida Statutes (1997), and generally patterned after the standard instructions on stalking and aggravated stalking.

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2007 [953 So.2d 495] to incorporate cyberstalking.

8.27 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST EXPLOITATION OF A VULNERABLE ADULT § 825.1036(4), Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult, the State must prove the following two elements beyond a reasonable doubt:

1. A [temporary] [final] injunction for protection against exploitation of a vulnerable adult was issued by a court against (defendant) for the benefit of (victim).
2. (Defendant) willfully violated the injunction by (alleged violation of §§ 825.1036(4)(a)1.-7., Fla. Stat.).

Definition.

"Willfully" means knowingly, intentionally, and purposely.

If the allegation involves the defendant exploiting a vulnerable adult, define "exploitation" and "vulnerable adult" from §§ 825.101(6),(14), Fla. Stat.

Lesser Included Offense

VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST EXPLOITATION OF A VULNERABLE ADULT - 825.1036 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments The crime of Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult is bumped up from a first-degree misdemeanor to a third-degree felony if the defendant had two or more prior convictions for violating either an injunction or a foreign protection order involving the same victim. It is unclear whether the courts will require the historical fact of the prior convictions against the same victim to be proven to the jury or whether only the sentencing judge may find that the prior convictions against the same victim exist. If the issue is to be submitted to a jury, it is error to inform the jury of the allegation of prior convictions until the verdict on the underlying Violation of an Injunction is rendered. Therefore, if the charging document contains an allegation of prior Violation of Injunction convictions, do not read that allegation and do not send the information or indictment into the jury room prior to a verdict. If the defendant is found guilty of Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult, the historical fact of prior convictions against the same victim shall be determined separately in a bifurcated proceeding. State v. Harbaugh, 754 So.2d 691 (Fla. 2000). The term "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. § 825.1036(4)(b), Fla. Stat.

This instruction was adopted in 2018.

8.28 VIOLATION OF A RISK PROTECTION ORDER

§ 790.401(11)(b), Fla. Stat.

To prove the crime of Violation of a Risk Protection Order, the State must prove the following three elements beyond a reasonable doubt:

1. A [temporary] [final] risk protection order was issued by a court against (defendant).
2. (Defendant) knew that [he] [she] was prohibited from [possessing] [or] [having in [his] [her] custody or control] [or] [receiving] [or] [purchasing] [a firearm] [or] [ammunition] because of that court order.
3. (Defendant) violated the court order by knowingly [possessing] [or] [having in [his] [her] custody or control] [or] [receiving] [or] [purchasing] [a firearm] [or] [ammunition].

Give as applicable.

§ 790.001(6), Fla. Stat.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is (insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.) ].

§ 790.001(19), Fla. Stat.

"Ammunition" means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer.
b. One or more projectiles, one or more bullets, or shot.
c. Gunpowder.

Possession.

To prove (defendant) "possessed" [a firearm] [or] [ammunition], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [firearm] [or] [ammunition] and b) intentionally exercised control over it.

Give if applicable.

Control can be exercised over [a firearm] [or] [ammunition] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] [or] [ammunition] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [firearm] [or] [ammunition] or the present ability to direct its control by another.

Joint possession.

Possession of [a firearm] [or] [ammunition] may be sole or joint, that is, two or more persons may possess it.

Lesser Included Offense

VIOLATION OF A RISK PROTECTION ORDER - 790.401(11)(b) CATEGORY CATEGORY FLA. STAT INS. NO. ONE TWO None Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2018.

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


text:
    IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULE OF PROCEDURE 12.407.
    No. SC18-853
    Supreme Court of Florida.
    December 13, 2018
    Maria Liliana Obradovich, Chair, Family Law Rules Committee, Tampa, Florida, and Robert Joseph Merlin, Past Chair, Family Law Rules Committee, Coral Gables, Florida; David Neal Silverstein, Chair, Juvenile Court Rules Committee, Bradenton, Florida, and Kara Ann Fenlon, Past Chair, Juvenile Court Rules Committee, Tallahassee, Florida; Honorable Christine Hissam Greider, Chair, Steering Committee on Children and Families in the Court; and Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Honorable Scott M. Bernstein, Judge, and Patricia Gladson, General Counsel, Eleventh Judicial Circuit, Miami, Florida, Responding with comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Family Law Rules Committee previously proposed amendments to rule 12.407 in its 2017 regular-cycle report. In re Amends. to Fla. Family Law Rules of Pro.-2017 Regular-Cycle Report , 227 So.3d 115, 116 (Fla. 2017). The Court, concerned that the amendments "might produce the unintended consequences of (1) prohibiting children from entering a courthouse building, and (2) directly conflicting with certain provisions of Florida Rule of Juvenile Procedure 8.255, especially in the context of Unified Family Court Proceedings," declined to adopt the amendments. Id. Instead, the Court "refer[red] these issues back to the Family Law Rules Committee, the Steering Committee on Families and Children in the Court, and the Juvenile Court Rules Committee for further joint consideration." Id.

In response to this Court's request that the three committees work together to address the Court's concerns, the Family Law Rules Committee (FLR Committee), Juvenile Court Rules Committee (JCR Committee), and the Steering Committee on Families and Children in the Court (Steering Committee) have filed a joint out-of-cycle report proposing amendments to Florida Family Law Rule of Procedure 12.407 (Testimony and Attendance of Minor Child). The Court published the proposed amendments in the July 15, 2018, edition of The Florida Bar News . One comment was received from Eleventh Judicial Circuit Court Judge Scott M. Bernstein. The committees submitted a joint response, declining to make the change suggested by Judge Bernstein but making further editorial amendments not related to the comment. Upon consideration of the committees' report, the comment received, and the joint response, we adopt the amendments to the Florida Family Law Rules of Procedure as proposed in the response.

AMENDMENTS

The committees propose adding the subdivision titles "Prohibition," "Related Proceedings," and "Uncontested Adoption" to rule 12.407. Additionally, the committees propose substantially rewording the rule to address this Court's concerns. Under the subtitle "Prohibition," the amended rule prohibits children who are witnesses, potential witnesses, or related to family law cases from being deposed or brought to a deposition, being subpoenaed to attend a family law proceeding, or being present at a family law proceeding without prior order from the court, unless otherwise provided by law or another rule of procedure. Under the subtitle "Related Proceedings," the rule clarifies that in family law proceedings held concurrently with proceedings governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child's appearance in court. Under the subtitle "Uncontested Adoption," the rule makes clear that it does not apply in uncontested adoption proceedings. Finally, the committees added a comment further clarifying that the rule is not intended to prohibit children who are unrelated to the litigation from attending court or depositions in family law cases, and is, instead, intended to protect children who may be harmed by unnecessary involvement in family law proceedings.

CONCLUSION

We commend the Family Law Rules Committee, the Juvenile Court Rules Committee, and the Steering Committee on Families and Children in the Court for working collaboratively on the amendments to Rule 12.407 to successfully address this Court's concerns. Accordingly, the Florida Family Law Rules of Procedure are amended as set forth in the appendix to this opinion. Language added to the rules is underscored; deleted language is struck through.

The amended rule shall become effective upon release of this opinion.

It is so ordered.

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

APPENDIX

RULE 12.407. TESTIMONY AND ATTENDANCE OF MINOR CHILD

(a) Prohibition. Unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being No minor child shall be deposed or brought to a deposition,brought to court to appear as a witness or to attend a hearing, or from being subpoenaed to appear at a ny hearing family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shownunless in an emergency situation.

(b) Related Proceedings. In a family law proceeding held concurrently with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child's appearance in court.

(c) Uncontested Adoption. Thisprovision rule shall does not apply to uncontested adoption proceedings.

Court Commentary

1995 Adoption. This rule is intended to afford additional protection to minor children by avoiding any unnecessary involvement of children in family law litigation. While due process considerations prohibit an absolute ban on child testimony, this rule requires that a judge determine whether a child's testimony is necessary and relevant to issues before the court prior to a child being required to testify.

Committee Notes

2018 Amendment. This rule is not intended to prohibit children who are unrelated to the litigation from attending court or depositions in family law cases for educational purposes and other reasons. This rule is intended to protect children who may be harmed by unnecessary involvement in family law proceedings. Children who may be harmed by unnecessary involvement include children who may be the subject of the family law case and children who are witnesses, are potential witnesses, or have extensive involvement with the family that is the subject of a current family law case.

      Other minor and editorial amendments are also made.