text:
    Michael T. RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1991
    Supreme Court of Florida.
    December 20, 2018
    Neal Dupree, Capital Collateral Regional Counsel, Martin J. McClain, Special Assistant Capital Collateral Regional Counsel, and Nicole M. Noël, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Ilana Mitzner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution.

FACTS AND BACKGROUND

Michael T. Rivera was convicted of first-degree murder and was sentenced to death. Rivera v. State (Rivera I ), 561 So.2d 536, 537 (Fla. 1990). In affirming his convictions and sentences on direct appeal, this Court set forth the pertinent facts pertaining to Rivera's case:

Eleven-year-old Staci Lynn Jazvac left her Lauderdale Lakes home on bicycle at about 5:30 p.m. on January 30, 1986, to purchase poster board at a nearby shopping center. A cashier recalled having sold her a poster board between 6:30 and 7:00 p.m. When Staci failed to return by dusk, her mother began to search. At about 7:30 p.m. the mother encountered a Broward County Deputy Sheriff, who had Staci's bicycle in the trunk of his car. The deputy found the bicycle abandoned in a field alongside the shopping center. A police investigation ensued.
Police first connected Michael Rivera to Staci's murder through a complaint filed by Starr Peck, a Pompano Beach resident. She testified that she had received approximately thirty telephone calls during September 1985 from a man who identified himself as "Tony." He would discuss his sexual fantasies and describe the women's clothing he wore, such as pantyhose and one-piece body suit. She received the last telephone call from "Tony" after Staci's murder. Ms. Peck testified that he said he had "done something very terrible.... I'm sure you've heard about the girl Staci.... I killed her and I didn't mean to.... I had a notion to go out and expose myself. I saw this girl getting off her bike and I went up behind her." She testified that he had admitted putting ether over Staci and dragging her into the back of the van where he sexually assaulted her. Rivera had been employed by Starr Peck, and she identified him as "Tony."
On February 13, Detectives Richard Scheff and Phillip Amabile of the Broward County Sheriff's Department took Rivera into custody on unrelated outstanding warrants and transported him to headquarters where they told him that they wanted to speak to him. Detective Scheff testified that Rivera responded, "If I talk to you guys, I'll spend the next 20 years in jail." After reading Rivera his Miranda rights,[n.2] Detective Scheff told Rivera that someone had advised them that Rivera had information about the disappearance of Staci Jazvac. The detective testified that Rivera admitted making the obscene phone calls to Starr Peck but denied having abducted or murdered Staci.
[n.2] Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In subsequent interviews, Rivera admitted that he liked exposing himself to girls between ten and twenty years of age. He preferred the Coral Springs area because its open fields reduced the likelihood of getting caught. He would often borrow a friend's van and commented that "every time I get in a vehicle, I do something terrible." Rivera then admitted to two incidents. In one, he said he had exposed himself to a girl pushing a bike. When asked what he did with her, Rivera replied: "Tom, I can't tell you. I don't want to go to jail. They'll kill me for what I've done." In the other, he said he had grabbed another young girl and pulled her into some bushes near a Coral Springs apartment complex.
Staci's body was discovered on February 14 in an open field in the city of Coral Springs, several miles from the site of the abduction. Dr. Ronald Keith Wright, a forensic pathologist, testified that most of the upper part of the body had decomposed and that the body was undergoing early skeletonization. The doctor concluded that death was a homicide caused by asphyxiation, which he attributed to ether or choking.
Dr. Wright observed that the body was completely clothed, although the jeans were unzipped and partially pulled down about the hips, and the panties were partially torn. Dr. Wright opined that this could be the result of the expansion of gasses during decomposition and not sexual molestation. He was unable to determine whether she was sexually assaulted. He discovered a bruise on the middle of the forehead that occurred before death, but he could not testify with certainty as to the cause. He also observed a broken fingernail on her right hand index finger, which he could not interpret as evidence of a struggle. Dr. Wright believed that the body was carried to the field and dumped, and at that time Staci was either dead or unconscious.
The jury heard testimony from several of Rivera's fellow inmates. Frank Zuccarello testified that Rivera admitted that he had choked another child, Jennifer Goetz, in the same way he had choked Staci; that Rivera said he had tried to kill Jennifer but was frightened away; and that Rivera said he had taken Staci to the field where she screamed and resisted, and he choked her to death after things got out of hand. Rivera also admitted that he told Starr Peck that he had murdered Staci, saying that confiding in her was the biggest mistake of his life. William Moyer testified that Rivera had stated to him: "You know, Bill, I didn't do it, but Tony did it." He later overheard Rivera call Starr Peck and identify himself as "Tony." Peter Salerno testified that Rivera told him: "I didn't mean to kill the little Staci girl. I just wanted to look at her and play with her."
A manager of a Plantation restaurant testified that he had received over two hundred telephone calls during a two-year period from an anonymous male caller. On February 7, the Friday before Staci's body was discovered, the caller identified himself as "Tony" and said that he "had that Staci girl" while wearing pantyhose, and that he had put an ether rag over her face.
The jury returned a verdict of guilty as charged.
During the penalty phase, the state introduced evidence of prior convictions.[n.3] Rivera introduced the testimony of his sisters, Elisa and Miriam, through whom the jury learned that Rivera was himself the victim of child molestation. Rivera's present girlfriend testified that she had no concerns about leaving him with her children. Rivera's former girlfriend was allowed to testify under an alias. She expressed the opinion that Rivera had two personalities. Through Michael he demonstrated a good side and through "Tony" he exposed his dark side which compelled him to do terrible things.
[n.3] On November 6, 1986, Rivera was convicted of attempted first-degree murder, kidnapping, aggravated child abuse, and aggravated battery. The state conceded that those crimes were on appeal. However, there were other felonies involving the use or threat of violence of which Rivera stood convicted and which were not on appeal. They include the October 1980 crimes of burglary with intent to commit battery and of indecent assault on a female child under the age of fourteen.
Dr. Patsy Ceros-Livingston, a clinical psychologist, interviewed Rivera in jail.
She diagnosed Rivera as having a borderline personality disorder, which is characterized by impulsivity, a pattern of unstable and intense interpersonal relationships, lack of control of anger, identity disturbance, affective instability, intolerance of being alone, and physically self-damaging acts. The doctor also diagnosed exhibitionism, voyeurism, and transvestism.
Dr. Ceros-Livingston opined that Rivera acted under extreme duress and that he had some special compulsive characteristics that substantially impaired his capacity to appreciate the criminality of his conduct or to conform this conduct to the requirement of the law.
The jury unanimously recommended the death penalty. The trial judge found four aggravating circumstances,[n.4] one statutory mitigating circumstance,[n.5] and no nonstatutory mitigating circumstances.
[n.4] § 921.141(5)(b), (d), (h), (i), Fla. Stat. (1985) (previous conviction of felony involving the threat or use of violence; murder committed during the commission of an enumerated felony; murder especially heinous, atrocious, or cruel; and murder committed in a cold, calculated, and premeditated manner[ ]).
[n.5] § 921.141(6)(b), Fla. Stat. (1985) (defendant under the influence of extreme mental or emotional disturbance).

Id. at 537-38. Because Rivera did not file a petition for writ of certiorari in the United States Supreme Court, his conviction and sentence became final on September 22, 1990. See Fla. R. Crim. P. 3.851(d) ("(1) ... For the purposes of this rule, a judgment is final: (A) on the expiration of the time permitted to file in the United States Supreme Court a petition for writ of certiorari seeking review of the Supreme Court of Florida decision affirming a judgment and sentence of death (90 days after the opinion becomes final); ....").

We affirmed the denial of Rivera's initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 on all claims but that of the penalty phase effectiveness of counsel, which we reversed and remanded for an evidentiary hearing. Rivera v. State (Rivera II ), 717 So.2d 477, 479 (Fla. 1998). After conducting an evidentiary hearing, the postconviction court again denied relief. Rivera v. State (Rivera III ), 859 So.2d 495, 499 (Fla. 2003). Rivera appealed that denial to this Court and filed a petition for writ of habeas corpus. Id. We affirmed the postconviction court's denial of relief and denied the petition for writ of habeas corpus. Id.

Rivera filed his first successive motion for postconviction relief pursuant to rule 3.850, which the postconviction court denied. Rivera v. State (Rivera IV ), 995 So.2d 191, 192 (Fla. 2008). This Court remanded for an evidentiary hearing on Rivera's newly discovered evidence claim and on his claims of Brady and Giglio violations, and affirmed the postconviction court's denial on all other claims. Id. Following the evidentiary hearing, the postconviction court again denied Rivera's claims. Rivera v. State (Rivera V ), 187 So.3d 822, 828 (Fla. 2015). On appeal from the postconviction court's denial, we affirmed the denial of relief on the claims that were remanded for an evidentiary hearing. Id. at 841.

After our release of Hurst v. State , 202 So.3d 40 (Fla. 2016), Rivera filed a second successive motion for postconviction relief, which the postconviction court struck pursuant to the State's motion. Rivera then filed an amended second successive motion for postconviction relief, which the postconviction court again denied. Rivera appealed that denial to this Court. On November 21, 2017, we issued an order to show cause why the postconviction court's order should not be affirmed in light of our decision in Hitchcock v. State , 226 So.3d 216 (Fla. 2017), to which both Rivera and the State responded. Rivera v. State , No. SC17-1991 (Fla. order filed Nov. 21, 2017). Then, on February 22, 2018, after reviewing the responses to the order to show cause, we directed further briefing on non-Hurst related issues. Rivera v. State , No. SC17-1991 (Fla. order filed Feb. 22, 2018).

ANALYSIS

I.

In his first claim, Rivera contends that the postconviction court erred in denying his motion for enlargement of the page limitation. Rivera also contends that the postconviction court violated his due process rights by failing to hold a case management conference, pursuant to Huff v. State , 622 So.2d 982 (Fla. 1993), before ruling on his second successive motion for postconviction relief. We conclude that Rivera's argument with regard to the page limitation is meritless. Moreover, in accordance with our extensive precedent on the failure to hold Huff hearings for successive motions for postconviction relief, we further conclude that any error here was harmless.

A.

Rivera argues that the postconviction court's denial of his motion to exceed page limitation deprived him of equal protection, asserting in part that other capital defendants were allowed to file successive postconviction motions in excess of twenty-five pages. In doing so, he takes issue with rule 3.851 itself as much as with the postconviction court's denial of that motion. See Initial Br. 11 ("There is no page limitation on successive 3.850 motions. It defies logic to impose a page limitation in a capital case when one is not imposed in a non-capital case.").

We review discretionary decisions made by trial judges under an abuse of discretion standard. Bryant v. State , 901 So.2d 810, 817 (Fla. 2005). "When there is sufficient evidence to support the conclusion of the lower court, we may not substitute our judgment for that of the trial judge." Mason v. State , 597 So.2d 776, 779 (Fla. 1992). "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980). Thus, we examine the postconviction court's denial of Rivera's motion to exceed the page limitation under an abuse of discretion standard.

Florida Rule of Criminal Procedure 3.851(e)(2) states that a successive motion for postconviction relief shall not exceed twenty-five pages. Fla. R. Crim. P. 3.851(e)(2). Here, Rivera filed a motion to exceed the page limitation, which requested permission to file a twenty-nine page successive motion for postconviction relief, stating that a page enlargement was necessary because "[t]he procedural, factual, and legal aspects of Rivera's Hurst claim are complex, particularly given the size of the record in this case and its lengthy procedural history." The State objected to the motion, arguing that, because Hurst is inapplicable to Rivera's case, there was no good cause to exceed the page limit, which the State claimed would actually be in excess of twenty-nine pages due to the use of smaller font size on twenty of those pages. The postconviction court ultimately denied Rivera's motion.

Given that Rivera's conviction and death sentence became final well before Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), was decided, and that all of his claims in the instant successive postconviction motion centered on his alleged entitlement to Hurst relief, we conclude that it was reasonable for the postconviction court to deny his motion to exceed page limit. Thus, the lower court's denial does not constitute an abuse of discretion.

B.

Next, Rivera asserts that the postconviction court's failure to hold a case management conference denied him due process. In Huff , we stated:

Because of the severity of punishment at issue in a death penalty postconviction case, we have determined that henceforth the judge must allow the attorneys the opportunity to appear before the court and be heard on an initial 3.850 motion. This does not mean that the judge must conduct an evidentiary hearing in all death penalty postconviction cases. Instead, the hearing before the judge is for the purpose of determining whether an evidentiary hearing is required and to hear legal argument relating to the motion.

622 So.2d at 983. This Huff hearing requirement was later expanded to include rule 3.851 motions. See Fla. R. Crim. P. 3.851(f)(5)(B).

Nevertheless, in Groover v. State , 703 So.2d 1035 (Fla. 1997), we elaborated that our holding in Huff was limited to initial death penalty postconviction motions. Id. at 1038. We noted that, although Huff hearings are preferred in order to allow the parties to present their legal arguments, one was not required in Groover's case because his successive postconviction motion was without merit. Id. "[E]ven if a Huff hearing had been required in [ Groover ], the court's failure to do so would be harmless as no evidentiary hearing was required and relief was not warranted on the motion." Id. Moreover, we have repeatedly upheld our holding in Groover with regard to Huff hearings on legally insufficient or meritless successive postconviction motions. See Marek v. State , 14 So.3d 985, 999 (Fla. 2009) (holding that the failure to hold a Huff hearing on Marek's fourth successive postconviction motion that was legally insufficient on its face and without merit was harmless, stating that "[t]he failure to hold a hearing on a successive postconviction motion that is legally insufficient on its face is harmless error" (citing Davis v. State , 736 So.2d 1156, 1159 n.1 (Fla. 1999) ; Groover , 703 So.2d at 1038 ) ); Davis , 736 So.2d at 1159 n.1 ("In view of the fact that the instant motion is successive and legally insufficient on its face, we find this error harmless." (citing Groover , 703 So.2d at 1038 ) ); see also Mordenti v. State , 711 So.2d 30, 32 (Fla. 1998) (holding a failure to hold a Huff hearing on Groover's fourth successive postconviction motion was harmless error whereas the same lack of Huff hearing on Mordenti's first motion for postconviction relief was not). Therefore, we have repeatedly emphasized that the failure to hold a Huff hearing on legally insufficient or meritless successive postconviction motions is harmless error.

Here, the postconviction motion at issue is Rivera's second successive postconviction motion. Moreover, as discussed below, the postconviction court below properly found that Rivera's successive postconviction motion was without merit.

Rivera's jury unanimously recommended a sentence of death, and his case became final on September 22, 1990-well before Ring. The instant successive motion for postconviction relief is entirely based on Rivera's supposed entitlement to relief under Hurst. Because Rivera's conviction and sentence were final long before Ring was issued, our precedent makes it clear that he is not entitled to any Hurst relief. See, e.g. , Hitchcock , 226 So.3d at 217 ("We have consistently applied our decision in Asay , denying the retroactive application of Hurst v. Florida [--- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ] as interpreted in Hurst v. State to defendants whose death sentences were final when the Supreme Court decided Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)." (citing Zack v. State , 228 So.3d 41 (Fla. 2017) ; Marshall v. Jones , 226 So.3d 211 (Fla. 2017) ; Lambrix v. State , 217 So.3d 977 (Fla. 2017) ; Willacy v. Jones , No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017) ; Bogle v. State , 213 So.3d 833 (Fla. 2017) ; Gaskin v. State , 218 So.3d 399 (Fla. 2017) ) ). Therefore, although Huff hearings are preferred on all postconviction motions, we conclude that the failure to hold a case management hearing in the instant proceeding was harmless. See, e.g. , Groover , 703 So.2d at 1038. Thus, this claim of Rivera's successive motion for postconviction relief fails.

II.

In his second claim, Rivera attempts to circumvent our decision on the retroactivity of Hurst by dubbing the death penalty statute as substantive, rather than procedural. In doing so, Rivera cites to Fiore and In re Winship in support of his argument that Hurst relief should be applied retroactively because the substantive aggravators were present in the statute since its creation, thus warranting full retroactive application of Hurst. These arguments, however, are "nothing more than arguments that Hurst v. State should be applied retroactively to [Rivera's] sentence, which became final prior to Ring. As such, these arguments were rejected when [this Court] decided Asay. " Hitchcock , 226 So.3d at 217. Therefore, we conclude that this claim is meritless, based on our clear and repeated precedent on the retroactive application of Hurst.

As we recently explained in Foster v. State , No. SC18-860, 258 So.3d 1248, 2018 WL 6379348 (Fla. Dec. 13, 2018) :

[T]he Hurst penalty phase findings are not elements of the capital felony of first-degree murder. Rather, they are findings required of a jury: (1) before the court can impose the death penalty for first-degree murder, and (2) only after a conviction or adjudication of guilt for first-degree murder has occurred. Thus, Foster's jury did find all of the elements necessary to convict him of the capital felony of first-degree murder-during the guilt phase.
In sum, a conviction for first-degree murder, a capital felony, solely consists of the jury having unanimously found the elements set forth in the substantive first-degree murder statute and the relevant jury instruction. The conviction for first-degree murder must occur before and independently of the penalty-phase findings required by Hurst and its related legislative enactments. The Florida Statutes clearly establish the elements of first-degree murder required for a conviction, and upon conviction , the required findings in order to sentence a defendant to the death penalty. There is no, as Foster asserts, greater offense of "capital first-degree murder." Foster's guilt-phase jury considered all of the elements necessary to convict him of first-degree murder, a capital felony. Thus, his due process argument fails.

Id., 258 So.3d at 1252. Our reasoning in Foster applies with equal force in Rivera's case. The jury unanimously convicted Rivera of first-degree murder during his guilt phase trial. Rivera I , 561 So.2d at 537. This first-degree murder conviction is separate from the death penalty that may later be imposed after the penalty phase-albeit a necessary prerequisite to that imposition. See § 921.141(1), Fla. Stat. (2018). Therefore, we conclude, as we did in Foster , that Rivera's due process argument fails. See Foster, 258 So.3d at 1252-53.

Moreover, in Asay , we made it clear that Hurst would not be applied retroactively to death defendants whose cases became final before Ring. 210 So.3d at 22. Similarly, in Hitchcock , we again made it clear that Hurst would not have retroactive application to defendants whose death sentences were final when the Supreme Court decided Ring. 226 So.3d at 217 (citing Zack , 228 So.3d 41 ; Marshall , 226 So.3d 211 ; Lambrix , 217 So.3d 977 ; Willacy , No. SC16-497, 2017 WL 1033679 ; Bogle , 213 So.3d 833 ; Gaskin , 218 So.3d 399 ). Because the crux of Rivera's argument is centered on this Court retroactively applying Hurst to Rivera's case, which became final in 1990, we conclude that this issue is meritless.

III.

Next, Rivera attempts to revive his previously extinguished claim of newly discovered evidence. This Court, in Rivera V , denied Rivera's claim of newly discovered DNA evidence relating to hair testing. 187 So.3d at 840-41. Therefore, we conclude that this claim is procedurally barred. Hendrix v. State , 136 So.3d 1122, 1125 (Fla. 2014) ("Claims raised and rejected in prior postconviction proceedings are procedurally barred from being relitigated in a successive motion." (citing Van Poyck v. State , 116 So.3d 347, 362 (Fla. 2013) ) ).

Nevertheless, even if this claim of Rivera's successive motion for postconviction relief is not procedurally barred, it is meritless. Rivera attempts to argue that the requirement under Mosley v. State , 209 So.3d 1248 (Fla. 2016), that all post- Hurst death sentences be unanimously imposed mandates that we revisit his 2015 newly discovered evidence claim because of the increased likelihood that Rivera would receive a lower sentence on retrial in the post- Hurst landscape. This contention, however, ignores the substantive reasons we set forth in Rivera V for why Rivera's newly discovered evidence claim failed. Specifically, we stated:

Rivera asserts that the newly discovered DNA evidence, together with all other evidence presented during trial and the postconviction proceedings, including Mark Peters's testimony that he was in possession of the van during the time Staci was abducted, establishes that Rivera did not commit the murder. We disagree. The DNA evidence simply confirms the possibility that was asserted during trial that the hair did not belong to Staci. Notably, the evidence is not exculpatory in nature, nor does it establish that Staci was never in contact with Rivera or in Peters's van. Moreover, the State presented ample evidence during trial that Rivera committed the murder, including the testimony of two non-jailhouse witnesses to whom Rivera confessed. Starr Peck testified that Rivera admitted to killing Staci, and a second woman testified that Rivera told her that Staci was gone and would not be found. Additionally, the jury heard testimony that Rivera exposed himself to numerous girls between the ages of ten and twenty years old; he thought about forcing young girls to have sex with him; he admitted that he exposed himself to a girl on a bicycle; and he previously attacked a girl the same age as Staci. Thus, we conclude the newly discovered DNA evidence is not of such a nature that it would probably produce an acquittal on retrial, and we affirm the denial of this claim.

Rivera V , 187 So.3d at 841 (footnote omitted); see id. (explaining that the limited value of hair comparisons was repeatedly emphasized by the State, the State's hair expert, and defense counsel at trial). Thus, based on the extensive and significant evidence of guilt presented at trial, it is clear that Rivera's newly discovered evidence claim would not produce an acquittal on retrial, even in the post- Hurst legal landscape. See, e.g. , Preston v. State , 970 So.2d 789 (Fla. 2007) (finding that newly discovered DNA evidence showing that hair recovered did not match the victim would probably not produce an acquittal on retrial because the case against the defendant was nevertheless a strong case).

IV.

Finally, Rivera asserts a bare-bones argument that seems to reiterate what was already asserted in Issue III-namely, that the alleged newly discovered exculpatory evidence demonstrates that the jury considered materially inaccurate evidence, which does not comport with Eighth Amendment requirements for the imposition of death. However, Rivera presents no legitimate or discernible argument within the limited analysis presented in his brief as to how his death sentence offends the Eighth Amendment. Instead, he seemingly asserts that this Court cannot deny Rivera's claims "simply because a case is old." Initial Br. 31. Therefore, as an initial matter, we conclude that this issue was insufficiently pled. See Heath v. State , 3 So.3d 1017, 1029 n.8 (Fla. 2009) ("Vague and conclusory allegations on appeal are insufficient to warrant relief." (citing Doorbal v. State , 983 So.2d 464, 482 (Fla. 2008) ) ); Victorino v. State , 23 So.3d 87, 103 (Fla. 2009) ("We have previously stated that '[t]he purpose of an appellate brief is to present arguments in support of the points on appeal.' " (quoting Duest v. Dugger , 555 So.2d 849, 852 (Fla. 1990) ) ).

Nevertheless, we also conclude that this claim fails on the merits. As mentioned above, Rivera attempts to argue that the need for reliable death sentences does not go away simply because a case was tried in 1986. This flawed logic, however, ignores the fact that we considered-and rejected-Rivera's claims of newly discovered evidence that were raised pursuant to evolving scientific capabilities with regard to hair sample testing. This consideration, and the ultimate result, indicate that the reliability of Rivera's death sentence was not so diminished as to raise Eighth Amendment concerns. Further, as explained in Issue III, we again conclude that the "materially inaccurate" information presented to the jury was not of such a nature that it would produce an acquittal on retrial or the imposition of a lesser sentence, in light of the distinct and overwhelming evidence of Rivera's guilt presented at trial-even post- Hurst. Therefore, we conclude that the jury's pre- Ring , unanimous recommendation of death is not unreliable or in violation of the Eighth Amendment, even in light of the limited testimony presented to the jury erroneously linking one hair sample recovered from the van to the victim.

CONCLUSION

For the reasons set forth above, we affirm the postconviction court's denial of Rivera's successive motion for postconviction relief.

It is so ordered.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE JANUARY 2, 2019.

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

      We later struck the cold, calculated, and premeditated aggravating factor on direct appeal. Rivera I , 561 So.2d at 540.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      Fiore v. White , 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001).

      In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

      Given the overwhelming evidence of guilt presented at trial, the postconviction court's order in Rivera V also explicitly detailed numerous reasons for the denial of Rivera's newly discovered evidence claim, due to the unlikely probability of receiving a lesser sentence on retrial: (1) The jury knew that the hair found near the victim's body did not belong to Rivera, making the additional hair testing results cumulative; (2) the jury heard testimony that Rivera used a different truck at the time of the murder than the van law enforcement knew about; and (3) the jury heard testimony about Rivera's confessions to Starr Peck, Angela Greene, and three inmates, and about his incriminating statements to law enforcement officers. Even in the post-Hurst death penalty scheme, we agree with the postconviction court in Rivera V that the DNA evidence does not create a reasonable doubt with respect to Rivera's guilt.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-11.
    No. SC17-2265
    Supreme Court of Florida.
    December 20, 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 and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing instructions: 8.3 (Battery); 8.4 (Aggravated Battery); 8.4(a) (Aggravated Battery (Pregnant Victim)); 8.5 (Felony Battery); 8.11 (Battery on Law Enforcement Officer, Firefighter, Etc.); 8.13 (Aggravated Battery on Law Enforcement Officer, Firefighter, Etc.); 8.14 (Aggravated Battery on Person 65 Years of Age or Older); 8.16 (Battery on Person 65 Years of Age or Older); and 8.20 (Battery on Facility Employee). No comments were received by the Committee pertaining to the proposals. The Court did not publish the proposals after they were filed. We hereby authorize the amended instructions 8.3, 8.4(a), 8.5, 8.11, 8.16, and 8.20 for publication and use as set forth in the appendix to this opinion. The more significant amendments to the instructions are discussed below.

Instructions 8.3, 8.4(a), 8.5, 8.11, and 8.16 are amended to clarify that a battery may occur even if the defendant does not touch the actual body of a victim, citing Clark v. State , 783 So.2d 967 (Fla. 2001).

In addition, instruction 8.3 (Battery) is modified to add a new paragraph stating that if the reclassification in section 784.03(2), Florida Statutes (2018), was charged and the jury found the defendant guilty of battery, then the jury must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of battery, aggravated battery, or felony battery.

Next, instruction 8.16 (Battery on Person 65 Years of Age or Older) is updated to clarify that it is not necessary for the State to prove that the defendant knew or had reason to know the age of the victim, citing section 784.08(2), Florida Statutes (2018).

Last, instruction 8.20 (Battery on Facility Employee) is amended to reflect the language in section 784.078, Florida Statutes (2018) (Battery of facility employee by throwing, tossing, or expelling certain fluids or materials). Accordingly, instruction 8.20 is amended to remove the "intentionally touched or struck" language that is used in other battery statutes, but is not found in section 784.078, Florida Statutes. Instruction 8.20 is also amended to replace "had reason to know" with "reasonably should have known." Further, instruction 8.20 is retitled from "Battery on Facility Employee" to "Battery on Facility Employee (Throwing, Tossing, or Expelling Certain Fluids or Materials)."

The amended criminal jury instructions, 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.

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

APPENDIX

8.3 BATTERY

§ 784.03, Fla._Stat.

To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

Give 1 and/ or 2 as applicable depending on the charging document.

1. [(Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.]
2. [(Defendant) intentionally caused bodily harm to (victim).]

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001).

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was "touched" through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Give if the reclassification in § 784.03(2), Fla. Stat. was charged and if jury found the defendant guilty of Battery.

Now that you have found the defendant guilty of Battery, you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of [Battery] [Aggravated Battery]

[Felony Battery]. "Convicted" means a determination of guilt that was the result of a plea or a trial, regardless of whether adjudication was withheld or a plea of nolo contendere was entered.

Lesser Included Offenses

BATTERY - 784.03 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comment

This instruction was approved in 1981 and amended in 2018.

8.4(a) AGGRAVATED BATTERY (Pregnant Victim)

§ 784.045 (1)(b), Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of b B attery.

Bracketed language depends on the charging document.

1. (Defendant) [actually and intentionally touched or struck (victim) against her will] [intentionally caused bodily harm to (victim)].
2. (Victim) was pregnant at the time.
3. (Defendant) in committing the battery knew or should have known that (victim) was pregnant.

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001).

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was "touched" through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

AGGRAVATED BATTERY (PREGNANT VICTIM) - 784.045(1)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Battery 784.03 8.3 Attempt 777.04(1) 5.1

Comment

This instruction was approved in 2007 [962 So.2d 310] and amended in 2018.SeeSmall v State, 889 So.2d 862 (Fla. 1st DCA 2004).

8.5 FELONY BATTERY

§ 784.041 (1), Fla._Stat.

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

1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will; and
2. (Defendant) caused (victim) great bodily harm, permanent disability, or permanent disfigurement.

Give only if applicable. Great bodily harm. Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001).

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was "touched" through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

FELONY BATTERY - 784.041(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Battery 784.03 8.3 None

Comment

This instruction is based on the text of § 784.041, Fla.Stat. (1997), and generally patterned after the standard instructions on battery and aggravated battery.

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2018.

8.11 BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.

§ 784.07(2)(b), Fla. Stat.

To prove the crime of Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Law Enforcement Explorer] [Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer], the State must prove the following four elements beyond a reasonable doubt:

Give 1a and/or 1b depending on the charging document.

1. (Defendant) intentionally
a. [actually and intentionally touched or struck (victim) against [his] [her] will].
b. [intentionally caused bodily harm to (victim)].
2. (Victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer].
3. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer].
4. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed.

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001).

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was "touched" through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).

The court now instructs you that a (name of official position of victim designated in charge)is a law enforcement officer.

For cases involving other types of victims, insert definitions from § 784.07(1)(a), Fla. Stat., as appropriate.

Lesser Included Offenses

BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC. - 784.07(2)(b) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO Battery 784.03 8.3 Attempt 777.04(1) 5.1

Comments

See Spurgeon v. State, 114 So.3d 1042 (Fla. 5th DCA 2013) (holding that a conviction for a violation of § 784.07(2), Florida Statutes, had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

This instruction was adopted in 1981 [431 So.2d 594] and amended in 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], 2007 [962 So.2d 310], 2008 [994 So.2d 1038],and2015 [157 So.3d 1027]. and 2018.

8.16 BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(c), Fla._Stat.

To prove the crime of Battery on a Person 65 Years of Age or Older, the State must prove the following two elements beyond a reasonable doubt:

Give 1a and/or 1b depending on the charging document.

1. (Defendant) intentionally [touched or struck (victim) against [his] [her] will] [caused bodily harm to (victim)].
a. actually and intentionally touched or struck (victim) against [his] [her] will.
b. intentionally caused bodily harm to (victim).
2. (Victim) was at the time 65 years of age or older.

§ 784.08(2), Fla. Stat.

It is not necessary for the State to prove that ( defendant ) knew or had reason to know the age of (victim) .

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001).

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was "touched" through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

BATTERY ON PERSON 65 YEARS OF AGE OR OLDER - 784.08(2)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Battery 784.03 8.3 Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2018.

8.20 BATTERY ON FACILITY EMPLOYEE (THROWING, TOSSING, OR EXPELLING CERTAIN FLUIDS OR MATERIALS)

§ 784.078, Fla._Stat.

To prove the crime of Battery on a Facility Employee, the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) was detained in a facility.
2. (Defendant) intentionally touched or struck or attempted to touch or strike (victim) against [his] [her] will by throwing, tossing, or expellingcaused or attempted to cause (victim) to come into contact with blood, saliva, masticated food, regurgitated food, seminal fluid, urine, or feces at(victim)by throwing, tossing, or expelling such fluid or material.
3. (Defendant) intended did so with the intent to harass, annoy, threaten, or alarm (victim).
4. (Victim) was a facility employee.
5. (Defendant) knew (victim) or had reason to knowreasonably should have known that (victim) was a facility employee.

Definitions .

§ 784.078(1), Fla. Stat. Additional definitions of the specific type of facility can be found in other statutes.

A "facility" is any state correctional institution, private correctional facility, county, municipal, or regional jail or other detention facility of local government, or any secure facility operated and maintained by the Department of Corrections or the Department of Juvenile Justice.

§ 784.078(2), Fla. Stat.

An "employee" is any person [employed by or performing contractual services for a public or private entity operating a facility] [or] [employed by or performing contractual services for the corporation operating the prison enhancement programs or the correctional work programs] [or] [who is a parole examiner with the Florida Parole Commission on Offender Review ].

Lesser Included Offenses

BATTERY ON FACILITY EMPLOYEE - 784.078 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Battery 784.03(1)(a) 8.3 Assault 784.011 8.1

Comment

This instruction was adopted in 2003 [850 So.2d 1272] and 2018.

      We decline to authorize the amendments to instructions 8.4, 8.13, and 8.14 at this time. Instead, we have referred those proposed amendments back to the Committee to be considered in light of Shepard v. State , 259 So.3d 701, 2018 WL 5660550 (Fla. Nov. 1, 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: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-06.
    No. SC18-1295
    Supreme Court of Florida.
    December 20, 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 and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to four existing standard criminal jury instructions: 15.1 (Robbery); 15.2 (Carjacking); 15.3 (Home-Invasion Robbery); and 26.9 (Money Laundering). The proposals were published by the Committee in The Florida Bar News ; one comment was received from the Florida Public Defender Association (FPDA) concerning the proposed amendments to instructions 15.1, 15.2, and 15.3. The Committee made one of the changes proposed by the FPDA prior to filing its report with the Court, but declined to make the other proposed change. The proposals were not published by the Court after having been filed by the Committee.

Having considered the Committee's report and the FPDA comment, we amend the standard jury instructions as proposed by the Committee, with one technical correction to a comment, and authorize them for publication and use. We discuss the more significant amendments below.

First, nonsubstantive revisions are made to several of the elements in instructions 15.1, 15.2, and 15.3 to improve readability or better track statutory language for the offenses covered by those instructions. Additionally, instructions 15.1, 15.2, and 15.3 are amended to replace "the" before "victim" with "that" or "a" to replace "victim" with the alleged victim's name throughout the instructions to avoid the trial court's accidentally referring to the alleged victim as a "victim." Statutory citations are also added above various definitions and paragraphs throughout these three instructions. Further, a bracketed sentence is added to the "Force" section of these instructions reading: "The law does not require the force, violence, assault, or putting in fear to be exerted against the victim from whom the property was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking." A citation to Thomas v. State , 36 So.3d 853 (Fla. 3d DCA 2010), is added above that paragraph in each of those three instructions.

Instructions 15.1, 15.2, and 15.3 are also amended to add a definition of "great bodily harm" stating that " 'Great bodily harm' means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises." A citation to Wheeler v. State , 203 So.3d 1007 (Fla. 4th DCA 2016), is added above that definition in each of those instructions. New paragraphs are added to the comments section of instructions 15.1, 15.2, and 15.3, and an existing paragraph in the comments section of each of those instructions is revised. However, 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.

Next, the crime of resisting a merchant is added as a category-two lesser-included offense for carjacking in instruction 15.2.

With regard to instruction 26.9, several of the elements of the crime money laundering are revised to better track statutory language governing that offense. Additionally, a last element is added reading: "The money or property involved in the financial transaction exceeded $300 in any 12-month period." This amendment is made to address language found in section 896.101(5), Florida Statutes (2018). Further, a paragraph is added to the instruction providing: "A[n] (name of the specified unlawful activity in § 895.02(8)(a)(1.-50. alleged) consists of (give elements of the specified unlawful activity alleged). (If applicable, also explain attempt, conspiracy, solicitation, coercion, and/or intimidation to commit the specified unlawful activity.) "

Next, the phrase "virtual currency" is added to the definition of "monetary instruments" in instruction 26.9 to track recent statutory amendments, see ch. 2017-155, § 12, at 5, Laws of Fla., and a definition of "virtual currency" based on section 896.101(2)(j), Florida Statutes (2018), is added to the instruction. A lesser-included offense table is added to the instruction and contains second- and third-degree money laundering as category-one lesser-included offenses for first-degree money laundering. Last, a paragraph is added to the instruction directing the jury, if it found the defendant guilty of money laundering, to determine whether the transaction involved more than $300 but less than $20,000, $20,000 or more but less than $100,000, or $100,000 or more during any 12-month period, to determine the felony degree of the offense.

The amended criminal jury instructions, 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. The instructions as 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

15.1 ROBBERY

§ 812.13, Fla. Stat.

To prove the crime of Robbery, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) took [the] [a] [an] (money or property described in charge) from the person or custody of (person alleged).
2. Force, violence, assault, or putting in fear was used in the course of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently or temporarily [deprive (victim) of [his] [her] right to the property or any benefit from it] [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it].

Definitions.

Assault. § 784.011 . Fla. Stat. Give if applicable.

An "assault" is an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in the mind of the that victim a well-founded fear that violence is about to take place.

Fear. Give only if applicable. Smithson v. State, 689 So.2d 1226 (Fla. 5thth DCA 1997).

If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.13(3)(b), Fla. Stat.

"In the course of the taking" means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or events.

Afterthought. Give only if applicable. DeJesus v. State, 98 So.3d 105 (Fla. 2d DCA 2012).

If you find that the taking of property occurred as an afterthought to the use of force or violence [or the threat of force or violence] against the victim(victim) , the taking does not constitute r R obbery , but may still constitute t T heft.

Title to property. Give if applicable.

In order for a taking of property to be r R obbery, it is not necessary that the person robbed be the actual owner of the property. It is sufficient if the victim person has the custody of the property at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010).

The taking must be by the use of force or violence or by assault so as to overcome the resistance of the victim a person , or by putting the victim a person in fear so that the victim he or she does not resist. [The law does not require the force, violence, assault, or putting in fear to be exerted against the victim from whom the property was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking.] The law does not require that the a victim of r R obbery resist to any particular extent or that the a victim offer any actual physical resistance if the circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.

It is also r R obbery if a person, with intent to take the property from a victim, administers any substance to another so that the victim so that [he] [she] becomes unconscious and then takes the property from the person or custody of the that victim.

Taking. Give if applicable.

In order for a taking by force, violence, or putting in fear to be r R obbery, it is not necessary that the taking be from the person of the a victim. It is sufficient if the property taken is under the actual control custody of the a victim so that it cannot be taken without the use of force, violence, or intimidation directed against the a victim.

Enhanced penalty. Give only if applicable. § 812.13(3)(a), Fla. Stat.

If you find the defendant guilty of the crime of r R obbery, you must further determine beyond a reasonable doubt if "in the course of committing the robbery" the defendant carried some kind of weapon. An act is "in the course of committing the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

With a firearm. § 812.13(2)(a), Fla. Stat.

If you find that the defendant carried a firearm in the course of committing the r R obbery, you should find [him] [her] guilty of r R obbery with a firearm.

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 a 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.) ]

With a deadly weapon. § 812.13(2)(a), Fla. Stat.

If you find that the defendant carried a (deadly weapon described in charge)in the course of committing the r R obbery and that the (deadly weapon described in charge)was a deadly weapon, you should find [him] [her] guilty of r R obbery with a deadly weapon.

A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

With other weapon. § 812.13(2)(b), Fla. Stat.

If you find that the defendant carried a weapon that was not a firearm or a deadly weapon in the course of committing the r R obbery, you should find [him] [her] guilty of r R obbery with a weapon.

A "weapon" is defined to mean any object that could be used to cause death or inflict serious bodily harm.

With no firearm or weapon. § 812.13(2)(c), Fla. Stat.

If you find that the defendant carried no firearm or weapon in the course of committing the r R obbery, but did commit the r R obbery, you should find [him] [her] guilty only of r R obbery.

If applicable, see Instruction 5.1 for "attempt".

Lesser Included Offenses

*ROBBERY WITH A FIREARM OR DEADLY WEAPON - 812.13(2)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery with a 812.13(2)(b) 15.1 weapon Robbery 812.13(2)(c) 15.1 Petit theft - second 812.014(3)(a) 14.1 degree Assault (if assault was 784.011 8.1 charged) Grand theft - first 812.014(2)(a) 14.1 degree Display of firearm 790.07(4) 10.4 Aggravated Battery 784.045 8.4 Grand theft -_second 812.014(2)(b) 14.1 degree Robbery by sudden 812.131(2)(a) 15.4 snatching with a firearm or deadly weapon Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Robbery by Sudden 812.131(2)(b) 15.4 Snatching Grand theft - third 812.014(2)(c) 14.1 degree Grand theft - third 812.014(2)(d) 14.1 degree Display of firearm 790.07(1) 10.3 Felony Petit Theft 812.014(3)(c) 14.1 Petit theft - first 812.014(2)(e) 14.1 degree Petit theft - first 812.014(3)(b) 14.1 degree Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4 *ROBBERY WITH A WEAPON - 812.13(2)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery 812.13(2)(c) 15.1 Petit theft - second 812.014(3)(a) 14.1 degree Assault (if assault was 784.011 8.1 charged) Grand theft - first 812.014(2)(a) 14.1 degree Display of a weapon 790.07(4) 10.4 Attempt 777.04(1) 5.1 Aggravated Battery 784.045 8.4 Grand theft - second 812.014(2)(b) 14.1 degree Robbery by sudden 812.131(2)(a) 15.4 snatching with a firearm or deadly weapon Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony battery 784.041 8.5 Robbery by sudden 812.131(2)(b) 15.4 snatching Grand theft - third 812.014(2)(c) 14.1 degree Grand theft - third 812.014(2)(d) 14.1 degree Display of firearm 790.07(1) 10.3 Felony petit theft 812.014(3)(c) 14.1 Petit theft - first 812.014(2)(e) 14.1 degree Petit theft - first 812.014(3)(b) 14.1 degree Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4 ROBBERY - 812.13(2)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Petit theft - second 812.014(3)(a) 14.1 degree Assault (if assault was 784.011 8.1 charged) Grand theft - second 812.014(2)(b) 14.1 degree Robbery By Sudden 812.131(2)(a) 15.4 Snatching with a firearm or deadly weapon Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Robbery by sudden 812.131(2)(b) 15.4 snatching Grand theft - third 812.014(2)(c) 14.1 degree Grand theft - third 812.014(2)(d) 14.1 degree Display of firearm 790.07(1) 10.3 Felony petit theft 812.014(3)(c) 14.1 Petit theft - first 812.014(2)(e) 14.1 degree Petit theft - first 812.014(3)(b) 14.1 degree Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4

Comments

If applicable, see Instruction 5.1 for "attempt."

*The felony degree of a Robbery gets bumped up if a defendant carried a firearm or a deadly weapon or a weapon. In Sanders v. State, 944 So.2d 203, 207 n.3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a firearm or a deadly weapon or a weapon made in a separate interrogatory rather than as part of lesser-included offenses.

For the crime ofr R obbery,according the First and Fifth DCAs, upon request, the judge must instruct that the ajury can convict a defendant of two lesser-included offenses such as 1) theft and assault or 2) theft and resisting a merchantin appropriate cases.See Spencer v. State, 71 So.3d 901 (Fla. 1stst DCA 2011), andStuckey v. State, 972 So.2d 918 (Fla. 5th th DCA 2007).See also Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005)(holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense). However, according to the Third DCA, the jury should be given the option of finding multiple lesser-included offenses only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking. Gordon v. State, 219 So.3d 189 (Fla. 3rd DCA 2017).

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1989 [543 So.2d 1205], 1995 [665 So.2d 212], 2008 [982 So.2d 1160],and2013 [122 So.3d 263], and 2018.

15.2 CARJACKING

§ 812.133, Fla. Stat.

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

1. (Defendant) took thea motor vehicle from the person or custody of (victimperson alleged).
2. Force, violence, assault, or putting in fear was used in the course of the taking.
3. The taking was with the intent to temporarily or permanently [deprive (victim) of [his] [her] right to the motor vehicle or any benefit from it] [appropriate the motor vehicle of (victim) to [his] [her] own use or to the use of any person not entitled to it].

Definitions.

Medrano v. State, 199 So.3d 413 (Fla. 4th DCA 2016). § 320.01, Fla. Stat.

"Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power, but the term does not include traction engines, road rollers, personal delivery devices, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds.

Assault. § 784.011 Fla. Stat. Give if applicable.

An "assault" is defined as an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in the mind of the that victim a well-founded fear that violence is about to take place.

Fear. Give only if applicable. Smithson v. State, 689 So.2d 1226 (Fla. 5thth DCA 1997).

If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.133(3)(b), Fla. Stat.

"In the course of the taking" means that the act occurred before, during, or after the taking of the motor vehicle and that the act and the taking of the motor vehicle constitute a continuous series of acts or events.

Afterthought. Give only if applicable. DeJesus v. State, 98 So.3d 105 (Fla. 2d DCA 2012).

If you find that the taking of the motor vehicle occurred as an afterthought to the use of force or violence_[ or the threat of force or violence] against (victim), the taking does not constitute robbery Carjacking , but may still constitute g G rand t T heft m M otor v V ehicle.

Title to motor vehicle. Give if applicable.

In order for a taking of the motor vehicle to be e C arjacking, it is not necessary that the victim person carjacked be the actual owner of the motor vehicle. It is sufficient if the victim person has the custody of the motor vehicle at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010).

The taking must be by the use of force or violence or by assault so as to overcome the resistance of the victim a person , or by putting the victim a person in fear so that the victim he or she does not resist. [The law does not require the force, violence, assault, or putting in fear to be exerted against the victim from whom the motor vehicle was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking.] The law does not require that the a victim of c C arjacking resist to any particular extent or that the a victim offer any actual physical resistance if the circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.

It is also c C arjacking if a person, with intent to take the motor vehicle from a victim, administers any substance to the that victim so that [he] [she] becomes unconscious and then takes the motor vehicle from the person or custody of the that victim.

Taking. Give if applicable.

In order for a taking by force, violence, or putting in fear to be Carjacking, it is not necessary that the taking be from the person of a victim. It is sufficient if the motor vehicle taken is under the custody of a victim so that it cannot be taken without the use of force, violence, or intimidation directed against a victim.

Enhanced penalty. Give only if applicable. §§ 812.133(2)(a) and 812.133(3)(a) Fla. Stats.

If you find the defendant guilty of the crime of c C arjacking, you must further determine beyond a reasonable doubt if "in the course of committing the c C arjacking" the defendant carried some kind of a firearm or other deadly weapon. An act is "in the course of committing the c C arjacking" if it occurs in an attempt to commit c C arjacking or in flight after the attempt or commission.

With a firearm or deadly weapon. § 812.133(2)(a), Fla. Stat.

If you find that the defendant carried a firearm or other deadly weapon in the course of committing the c C arjacking, you should find [him] [her] guilty of c C arjacking with a firearm or deadly weapon.

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 a 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.) ]

A "weapon" is defined to mean any object that could be used to cause death or inflict serious bodily harm.

A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

With no firearm or weapon. § 812.133(2)(b) Fla. Stat.

If you find that the defendant carried no firearm or deadly weapon in the course of committing the c C arjacking, but did commit the c C arjacking, you should find [him] [her] guilty only of c C arjacking.

The only enhancement under the statute is for carrying a firearm or other deadly weapon, not for carrying a nondeadly weapon as in the robbery statute.

If applicable, see Instruction 5.1 for "attempt."

Lesser Included Offenses

*CARJACKING - 812.133 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery 812.13(2)(c) 15.1 Grand theft - motor 812.014(2)(c)6 14.1 vehicle Assault (if assault was 784.011 8.2 charged) Aggravated Battery 784.045 8.4 Attempted Carjacking 777.04(1) 5.1 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4

Comments

*The only increased penalty under the Carjacking statute is for carrying a firearm or other deadly weapon, not for carrying a weapon as in the Robbery statute. In Sanders v. State , 944 So.2d 203, 207 n.3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a firearm or a deadly weapon made in a separate interrogatory rather than as part of lesser-included offenses.

If applicable, see Instruction 5.1 for 5.1 "attempt."

For the crime ofc C arjacking, it is likely thata the First, Fourth, and Fifth DCAs would hold that the judge must, upon request, instruct that the jury can convict a defendant of two lesser-included offenses such as grand theft auto and assault.See Spencer v. State, 71 So.3d 901 (Fla. 1stst DCA 2011); Stuckey v. State, 972 So.2d 918 (Fla. 5th DCA 2007); Gian-Grasso v. State , 899 So.2d 392 (Fla. 4th DCA 2005) (holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense). However, according to the Third DCA, the jury should be given the option of finding multiple lesser-included offenses only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking. Gordon v. State , 219 So.3d 189 (Fla. 3rd DCA 2017).

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008 [982 So.2d 1160],and2013 [122 So.3d 263], and 2018.

15.3 HOME-INVASION ROBBERY

§ 812.135, Fla. Stat.

To prove the crime of Home-Invasion Robbery, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) entered the dwelling of (victim).
2. At the time (defendant) entered the dwelling, [he] [she] intended to commit robbery.
3. While inside the dwelling, (defendant) did commit robbery.

A robbery consists of the following:

1. (Defendant) took money or property[the] [a] [an] (money or property described in charge) from the person or custody of another(person alleged).
2. Force, violence, assault, or putting in fear was used in the course of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently or temporarily [deprive another(victim) of [his] [her] right to the property or any benefit from it] [appropriate the property of another(victim) to [his] [her] own use or to the use of any person not entitled to it].

Definitions.

Assault. § 784.011 , Fla. Stat. Give if applicable.

An "assault" is defined as an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in the mind of the that victim a well-founded fear that violence is about to take place.

Fear. Give only if applicable. Smithson v. State, 689 So.2d 1226 (Fla. 5thth DCA 1997).

If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.13(3)(b), Fla. Stat.

"In the course of the taking" means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or events.

Afterthought. Give only if applicable. DeJesus v. State, 98 So.3d 105 (Fla. 2d DCA 2012).

If you find that the taking of property occurred as an afterthought to the use of force or violence [or the threat of force or violence] against (victim), the taking does not constitute r R obbery but may still constitute t T heft.

Title to property. Give if applicable.

In order for a taking of property to be r R obbery, it is not necessary that the person robbed be the actual owner of the property. It is sufficient if the victim person has the custody of the property at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010).

The taking must be by the use of force or violence or by assault so as to overcome the resistance of the victim a person , or by putting the victim a person in fear so that the victim he or she does not resist. [The law does not require the force, violence, assault, or putting in fear to be exerted against the victim from whom the property was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking.] The law does not require that the a victim of r R obbery resist to any particular extent or that the a victim offer any actual physical resistance if the circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.

It is also r R obbery if a person, with intent to take the property from a victim, administers any substance to another so that the victim so that [he] [she] becomes unconscious and then takes the property from the person or custody of the that victim.

Taking. Give if applicable.

In order for a taking by force, violence, or putting in fear to be robbery, it is not necessary that the taking be from the person of the a victim. It is sufficient if the property taken is under the actual control of the a victim so that it cannot be taken without the use of force, violence, or intimidation directed against the a victim.

Definition. Jacobs v. State, 41 So.3d 1004 (Fla. 1stst DCA 2010) ; DuBose v. State, 210 So.3d 641 (Fla. 2017).

"Dwelling" means a building [or conveyance] of any kind, including any attached porch, 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. [ The enclosure need not be continuous and may have an ungated opening for entering and exiting. ]

Enhanced penalty. Give if applicable.

If you find the defendant guilty of the crime of h H ome- i I nvasion r R obbery, you must further determine beyond a reasonable doubt if " in the course of committing the h H ome- i I nvasion r R obbery ," the defendant carried some kind of weapon.

With a firearm. § 812.135(2)(a), Fla. Stat.

If you find that the defendant carried a firearm in the course of committing the h H ome- i I nvasion r R obbery, you should find [him] [her] guilty of h H ome- i I nvasion r R obbery with a firearm.

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 a 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.) ]

With a deadly weapon. § 812.135(2)(a), Fla. Stat.

If you find that the defendant carried a (deadly weapon described in charge)in the course of committing the h H ome- i I nvasion r R obbery and that the (deadly weapon described in charge)was a deadly weapon, you should find [him] [her] guilty of h H ome- i I nvasion r R obbery with a deadly weapon.

A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016).

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

With other weapon. § 812.135(2)(b), Fla. Stat.

If you find that the defendant carried a weapon that was not a firearm or a deadly weapon in the course of committing the h H ome- i I nvasion r R obbery, you should find [him] [her] guilty of h H ome- i I nvasion r R obbery with a weapon.

A "weapon" is defined to mean any object that could be used to cause death or inflict serious bodily harm.

With no firearm or weapon. § 812.135(2)(c), Fla. Stat.

If you find that the defendant carried no firearm or weapon in the course of committing the h H ome- i I nvasion r R obbery, but did commit the h H ome- i I nvasion r R obbery, you should find [him] [her] guilty only of h H ome- i I nvasion r R obbery.

If applicable, see Instruction 5.1 for "attempt".

Lesser Included Offenses

*HOME INVASION ROBBERY - 812.135 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Burglary of a dwelling 810.02(3) 13.1 Robbery 812.13(2)(c) 15.1 Burglary of a Structure 810.02 13.1 Petit theft - second 812.014(3)(a) 14.1 degree Assault 784.011 8.1 Grand theft - first 812.014(2)(a) 14.1 degree Attempt 777.04(1) 5.1 Aggravated battery 784.045 8.4 Grand theft - second 812.014(2)(b) 14.1 degree Aggravated assault 784.021 8.2 Felony battery 784.041 8.5 Grand theft - third 812.014(2)(c) 14.1 degree Grand theft - third 812.014(2)(d) 14.1 degree Felony petit theft 812.014(3)(c) 14.1 Petit theft - first 812.014(2)(e) 14.1 degree Petit theft - first 812.014(3)(b) 14.1 degree Battery 784.03 8.3 Trespass 810.08 13.3

Comments

If applicable, see Instruction 5.1 for "attempt."

*The felony degree of a Home-Invasion Robbery gets bumped up if a defendant carried a firearm or a deadly weapon or a weapon. In Sanders v. State, 944 So.2d 203, 207 n.3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a firearm or a deadly weapon or a weapon made in a separate interrogatory rather than as part of lesser-included offenses.

The Home-Invasion Robbery statute does not contain an explanation of "in the course of committing the home-Invasion robbery." It is unclear whether the courts would look to the robbery and carjacking statutes so that "in the course of committing" would include an attempt to commit Home-Invasion Robbery or in flight after the attempt or commission.

For the crime ofh H ome-i I nvasionr R obbery, it is likely thata the First, Fourth, and Fifth DCAs would hold that the judge must, upon request, instruct that the jury can convict a defendant of two lesser-included offenses such as theft and assault.See Spencer v. State, 71 So.3d 901 (Fla. 1stst DCA 2011); Stuckey v. State, 972 So.2d 918 (Fla. 5th DCA 2007); Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005) (holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense). However, according to the Third DCA, the jury should be given the option of finding multiple lesser-included offenses only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking. Gordon v. State , 219 So.3d 189 (Fla. 3rd DCA 2017).

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008 [982 So.2d 1160],and2013 [122 So.3d 263], and 2018.

26.9 MONEY LAUNDERING

§ 896.101(3)(a), (3)(b), or (3)(c), Fla. Stat.

Give if Fla. Stat. § 896.101(3)(a) , Fla. Stat. is charged:

To prove the crime of Money Laundering, the State must prove the following four five elements beyond a reasonable doubt:

1. (Defendant) [conducted] [attempted to conduct] a financial transaction.
2. The money or property involved in the financial transaction represented the proceeds of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document).

3. (Defendant)knew the money or property involved in the financial transaction represented the proceeds of some form of unlawful activity.

Give 4a and/or 4b as applicable.

4. a. (Defendant) did so with the intent to promote the carrying on of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document).
b. (Defendant) knew that the transaction was designed in whole or in part
1. to [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document);
[or]
2. to avoid a [transaction reporting requirement] [money transmitters' registration requirement] under state law.
5. The money or property involved in the financial transaction exceeded $300 in any 12-month period.

Give if Fla. Stat. § 896.101(3)(b) , Fla. Stat. is charged:

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

1. (Defendant) [transported] [attempted to transport] [a monetary instrument] [funds].

Give 2a and/or 2b as applicable.

2. a. (Defendant) did so with the intent to promote the carrying on of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document);
[or]
b. (Defendant) knew that the [monetary instrument] [funds] involved in the transportation represented the proceeds of some form of unlawful activity and also knew that such transportation was designed in whole or in part
1. [to conceal] [to disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document);
[or]
2. to avoid a [transaction reporting requirement] [money transmitters' registration requirement] under state law.
3. The money or property involved in the financial transaction exceeded $300 in any 12-month period.

Give if Fla. Stat. § 896.101(3)(c) , Fla. Stat. is charged:

To prove the crime of Money Laundering, the State must prove the following three four elements beyond a reasonable doubt:

1. (Defendant) [conducted] [attempted to conduct] a financial transaction.
2. The financial transaction involved [property] [proceeds] which [an investigative or law enforcement officer] [someone acting under an investigative or law enforcement officer's direction] represented as being [derived from] [used to conduct or facilitate] (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document).
3. (Defendant) did so with the intent to
Give 3a and/or 3b and/or 3c as applicable.
a. promote the carrying on of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document);
[or]
b. [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the [proceeds] [property believed to be the proceeds] of (describename of the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.-50. that is alleged in the charging document);
[or]
c. avoid a transaction reporting requirement under state law.
4. The money or property involved in the financial transaction exceeded $300 in any 12-month period.

Give in all cases.

A[n] (name of the specified unlawful activity in § 895.02(8)(a)1.-50. alleged) consists of (give elements of the specified unlawful activity alleged) . (If applicable, also explain attempt, conspiracy, solicitation, coercion, and/or intimidation to commit the specified unlawful activity.

Give if applicable. Fla. Stat. § 896.101(4) , Fla. Stat.

It is not a defense to Money Laundering that:

(a) Any stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed.
(b) A facility or an opportunity to engage in conduct in violation of this act was provided.
(c) A law enforcement officer, or person acting under direction of a law enforcement officer, solicited a person predisposed to engage in conduct in violation of any provision of this chapter to commit a violation of this chapter in order to gain evidence against that person, provided such solicitation would not induce an ordinary law-abiding person to violate this law.

Note to Judge: This subsection does not preclude the defense of entrapment. See jury instruction 3.6(j).

Definitions.

Fla. Stats. § 896.101(2)(a), § 896.101(2)(g e ) , Fla. Stat.

" Knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity " means that the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law, regardless of whether such activity is (describe name the specified unlawful activitylisted inFla. Stat. § 895.02 (8)(a)1.-50. that is allegedin the charging document). A "felony" is a crime punishable by death or imprisonment in excess of one year. (Name of crime)is a felony.

Fla. Stat. § 896.101(2)(b a ) , Fla. Stat.

" Conduct s ed " includes initiating, concluding, or participating in initiating or concluding a transaction.

Fla. Stat. § 896.101(2)(c i ) , Fla. Stat.

"Transaction" means a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safety deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.

Fla. Stat. § 896.101(2)(d c ) , Fla. Stat.

"Financial transaction" means a transaction involving the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects commerce, or a transaction involving the transfer of title to any real property, vehicle, vessel, or aircraft, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, commerce in any way or degree.

Fla. Stat. § 896.101(2)(f b ) , Fla. Stat.

"Financial institution" means [an insured bank] [a commercial bank or trust company] [a private banker] [an agency or branch of a foreign bank] [a credit union] [a thrift institution] [a broker or dealer in securities or commodities] [an investment banker or investment company] [a currency exchange] [an operator of a credit card system] [an insurance company] [a dealer in precious metals, stones, or jewels] [a pawnbroker] [a loan or finance company] [a travel agency] [a telegraph company] [the United States Postal Service] [ (list one of the other institutions enumerated in 31 U.S.C. § 5312)], that is located in Florida.

Fla. Stat. § 896.101(2)(e f ) , Fla. Stat.

"Monetary instruments" means coin or currency of the United States or of any other country, virtual currency, travelers' checks, personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that title thereto passes upon delivery, and negotiable instruments in bearer form or otherwise in such form that title thereto passes upon delivery.

§ 896.101(2)(j), Fla. Stat.

"Virtual currency" means a medium of exchange in electronic or digital format that is not a coin or currency of the United States or any other country.

Fla. Stat. § 896.101(2)(h d ) , Fla. Stat.

" Knowing " means that a person knew; or, with respect to any transaction or transportation involving more than $10,000 in U.S. currency or foreign equivalent, should have known after reasonable inquiry, unless the person has a duty to file a federal currency transaction report, IRS Form 8300, or a like report under state law and has complied with that reporting requirement in accordance with law.

Fla. Stat. § 896.101(3)(d) , Fla. Stat.

"Investigative or law enforcement officer" means any officer of the State of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, who is empowered by law to conduct, on behalf of the government, investigations of, or to make arrests for, offenses enumerated in this subsection or similar federal offenses.

§ 896.101(5), Fla. Stat. Give as applicable

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

a. the financial transaction involved more than $300 but less than $20,000 during any 12-month period.
b. the financial transaction involved $20,000 or more but less than $100,000 during any 12-month period.
c. the financial transaction involved $100,000 or more during any 12-month period.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

MONEY LAUNDERING ($100,000 OR GREATER IN ANY 12-MONTH PERIOD) - 896.101(3) and 896.101(5)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Money Laundering 896.101(3) 26.9 ($20,000 but less than and $100,000 in any 12-month 896.101(5)(b) period) Money Laundering 896.101(3) 26.9 (more than $300 but and less than $20,000 in 896.101(5)(a) any 12-month period)

Comment

This instruction was adopted in 2013 [123 So.3d 54] and amended 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.