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January 1, 2013
First DCA says judges may ask state attorneys to write jury instructions

Trial judges have the power to direct state attorneys to prepare criminal jury instructions, as they have the authority to create procedural orders directing the conduct of litigation in their courtrooms, according to the First District Court of Appeal.

The case was before the First DCA, as Second Circuit State Attorney Willie Meggs sought to overturn an order that required his office to prepare proposed jury instructions and to submit them to the trial court on the day prior to the commencement of trial in cases pending before Judge Charles Dodson.

The Attorney General’s Office, representing Meggs in the appeal, argued the trial court’s order was a departure from the essential requirements of law and was an act in excess of the trial court’s jurisdiction.

“We disagree,” Judge William Van Nortwick wrote for the unanimous three-judge panel that included Judge T. Kent Wetherell and Judge Scott Makar. Judge Van Nortwick held trial judges have considerable discretion to resolve issues relating to the course and conduct of criminal trials.

“By entering the order at issue, the trial court certainly did not depart from the essential requirements of law, as a circuit court plainly has the power to create standing procedural orders directing the conduct of litigation in his or her own courtroom,” Van Nortwick said.

The state argued Judge Dodson’s order was contrary to the Florida Rules of Criminal Procedure, particularly Rule 3.390. But the First DCA held the rules of criminal procedure do not preclude the order at issue.

“Rule 3.390 requires a judge to orally and in writing instruct the jury on the law of the case at specified times throughout the trial,” Van Nortwick said. “While the rule requires the jury to be instructed by the trial court, this rule certainly does not preclude the trial court’s consideration of proposed instructions prepared by one of the litigants.”

The state also argued that Judge Dodson’s order was an administrative order, rather than a court rule, under the Florida Rules of Judicial Administration, reasoning that, while a trial judge has the authority to enter a court rule, only the circuit’s chief judge may enter an administrative order for the circuit.

“Again, we cannot agree,” the court said. “The term ‘court rule’ is defined in Rule 2.120 as a ‘rule of practice of procedure adopted to facilitate the uniform conduct of litigation applicable to all proceedings, all parties, and all attorneys,’” Van Nortwick wrote.

“The order at issue plainly sets a practice of procedure for the uniform conduct of criminal litigation in Judge Dodson’s courtroom. As this order is a matter within the broad discretion accorded to a trial court over courtroom management, it is not violative of the rules of judicial administration and is consistent with a trial court’s broad discretion regarding courtroom management.”

In a concurring opinion, Judge Makar said the “extraordinary relief” sought by the Second Circuit state attorney is not warranted in light of the trial judge’s clarification that he does not intend to enforce his jury instructions order in every case set for trial, but only those cases where a jury has been selected. Makar said this limitation should alleviate what would otherwise be a significant hardship on the state to prepare instructions in the vast majority of cases set for trial that ultimately are resolved without a trial.

“The trial judge’s order, however, does not contain this verbally announced limitation; it should be amended to make this limitation more widely known so that practitioners understand its applicability,” Makar said.

Judge Makar said state attorneys are officers of the court who, under the inherent powers of the judicial branch, can be called upon “to prepare a document for the court’s use in connection with a specific case in which the lawyer represents one of the litigating parties.”

The court acted December 10 in case no. 1D12-1885.

[Revised: 11-08-2016]