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February 1, 2013
Amendments to criminal case jury instructions

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following instructions:

6.2 ATTEMPTED MURDER – FIRST DEGREE (PREMEDITATED)

6.4 ATTEMPTED SECOND DEGREE MURDER

7.2 MURDER – FIRST DEGREE

7.4 MURDER – SECOND DEGREE

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either hard copy or electronic format on or before March 1. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If filing a hard copy, mail it to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.


6.2 ATTEMPTED MURDER — FIRST DEGREE
(PREMEDITATED)
§§ 782.04(1)(a) and 777.04, Fla._Stat.

To prove the crime of Attempted First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:
      1. (Defendant) did some act intended to cause the death of (victim) that went beyond just thinking or talking about it.
      2. (Defendant) acted with a premeditated design to kill (victim).
      3. The act would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

Definition
A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.

It is not an attempt to commit first degree premeditated murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Give if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
An issue in this case is whether (defendant) did not premeditate because [he] [she] was in the heat of passion. In order to find that the defendant did not premeditate because [he] [she] was in the heat of passion:
      a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

      b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and

      c. there was not a reasonable amount of time for a reasonable person to cool off; and

      d. a reasonable person would not have cooled off before committing the act that constituted the attempt to cause death; and

      e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that constituted the attempt to cause the death of (victim).


§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable. .
If you find the defendant guilty of attempted first degree murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

      Definitions. § 943.10, Fla. Stat.
“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
    “Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

    “Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

    “Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

    “Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

    “Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

    “Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

    “Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.
    Lesser Included Offenses
    ATTEMPTED FIRST DEGREE (PREMEDITATED) MURDER — 782.04(1) and 777.04
    CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
    Attempted second degree (depraved mind) murder782.04(2) and 777.046.4
    Attempted voluntary manslaughter by act782.07 and 777.046.6
    Aggravated assault battery784.021 784.0458.2 8.4
    Aggravated Felony battery784.045 784.0418.4 8.5
    Aggravated Assault784.0218.2
    Assault Battery784.011 784.038.1 8.3
    Battery Assault784.03 784.0118.3 8.1
    Comment

    Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of December 2012, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

    This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2013.
    6.4 ATTEMPTED SECOND DEGREE MURDER
    §§ 782.04(2) and 777.04, Fla._Stat.

    To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:
        1. (Defendant) intentionally committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.
        2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

    Definitions
    An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.

    An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:
        1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
        2. is done from ill will, hatred, spite, or an evil intent, and
        3. is of such a nature that the act itself indicates an indifference to human life.

    In order to convict of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

    It is not an attempt to commit second degree murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

    Give if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
    An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion:
        a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

        b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and

        c. there was not a reasonable amount of time for a reasonable person to cool off; and

        d. a reasonable person would not have cooled off before committing the act that would have resulted in death; and

        e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that would have resulted in the death of (victim).

    § 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable..
    If you find the defendant guilty of attempted second degree murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

        Definitions for enhanced penalty. § 943.10, Fla. Stat.
    “Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
      “Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

      “Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

      “Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

      “Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

      “Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

      “Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

      “Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.
      Lesser Included Offenses
      ATTEMPTED SECOND DEGREE MURDER — 782.04(2) and 777.04
      CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
      None Attempted manslaughter by act782.07 and 777.046.6
      Aggravated assault battery784.021 784.0458.2 8.4
      Aggravated Felony battery784.045 784.0418.4 8.5
      Aggravated Assault784.011 784.0218.1 8.2
      Battery784.038.3
      Assault784.0118.1

      Comment

      Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of December 2012, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.
      This instruction was adopted in 1994 and amended in 1997 [697 So. 2d 84] and 2013.

      7.2 MURDER—FIRST DEGREE
      § 782.04(1)(a), Fla. Stat.

      When there will be instructions on both premeditated and felony murder, the following explanatory paragraph should be read to the jury.
      There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

      To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:
          1. (Victim) is dead.
          2. The death was caused by the criminal act of (defendant).
          3. There was a premeditated killing of (victim).

      Definitions.
      An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

      “Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

      The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

      Transferred intent. Give if applicable.
      If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

      Give if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
      An issue in this case is whether (defendant) did not premeditate because [he] [she] was in the heat of passion. In order to find that the defendant did not premeditate because [he] [she] was in the heat of passion:
          a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

          b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and

          c. there was not a reasonable amount of time for a reasonable person to cool off; and

          d. a reasonable person would not have cooled off before committing the act that caused death; and

          e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).

      § 782.065, Fla. Stat. Enhanced penalty. Give if applicable. .
      If you find the defendant guilty of first degree murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.
          Definitions for enhanced penalty. § 943.10, Fla. Stat.
      “Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
      “Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

      “Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

      “Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

      “Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

      “Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

      “Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

      “Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

      Lesser Included Offenses
      FIRST DEGREE (PREMEDITATED) MURDER — 782.04(1)(a)
      CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
      Second degree (depraved mind) murder782.04(2)7.4
      Manslaughter782.077.7
      Second degree (felony) murder782.04(3)7.5
      Attempted felony murder782.051(1)6.3
      Attempted premeditated murder782.04(1)6.2
      Attempted second degree murder782.04(2) & 777.046.4
      Attempted felony murder782.051(2)6.3
      Third degree (felony) murder782.04(4)7.6
      Vehicular homicide782.0717.9
      Attempted felony murder782.051(3)6.3(a)
      Aggravated assault784.0218.2
      Aggravated battery784.0458.4
      Attempted Manslaughter by Act782.07 & 777.046.6
      Felony Battery784.0418.5
      Aggravated Assault784.0218.2
      Assault784.0118.1
      Battery784.038.3
      Felony battery784.0418.5
      Culpable negligence 784.05(2)8.9
      Culpable negligence784.05(1)8.9
      Assault 784.0118.1
      Attempted second degree murder782.04(2) & 777.046.4
      Attempted voluntary manslaughter782.07 & 777.046.6
      Comment

      Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of December 2012, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

      This instruction was adopted in 1981 and was amended in October 1981, and July 1997, and 2008 [994 So. 2d 1038], and 2013.
      7.4 MURDER—SECOND DEGREE
      § 782.04(2), Fla._Stat.

      To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:
          1. (Victim) is dead.

          2. The death was caused by the criminal act of (defendant).

          3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

      Definitions.
      An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

      An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
          1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
          2. is done from ill will, hatred, spite, or an evil intent, and
          3. is of such a nature that the act itself indicates an indifference to human life.

      In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

      Give if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
      An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] was in the heat of passion:
          a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

          b. a reasonable person would have lost normal self-control and would have been impelled by a blind and unreasoning fury; and

          c. there was not a reasonable amount of time for a reasonable person to cool off; and

          d. a reasonable person would not have cooled off before committing the act that caused death; and

          e. the (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).


      § 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable. .
      If you find the defendant guilty of second degree murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.
          Definitions. § 943.10, Fla. Stat.
      “Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
        “Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

        “Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

        “Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

        “Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

        “Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

        “Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.
        “Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.
        Lesser Included Offenses
        SECOND DEGREE (DEPRAVED MIND) MURDER — 782.04(2)
        CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
        Manslaughter782.077.7
        Third degree (felony) murder782.04(4)7.6
        Vehicular homicide782.0717.9
        (Nonhomicide lessers)
        Attempted Second Degree Murder
        777.04(1)5.16.4
        Culpable negligence Aggravated Battery784.05(2) 784.0458.9 8.4
        Culpable negligence Felony battery784.05(1) 784.0418.9 8.5
        Felony battery Aggravated Assault784.041 784.0218.5 8.2
        Aggravated battery Battery784.045 784.038.4 8.3
        Aggravated assault Culpable negligence784.021 784.05(2)8.2 8.9
        Battery Culpable negligence784.03 784.05(1)8.3 8.9
        Assault 784.0118.1
        Comment

        Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of December 2012, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

        This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84], and 2008 [994 So. 2d 1038], and 2013.

        [Revised: 12-12-2014]