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August 15, 2013
Amendments to criminal case jury instructions

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing amendments to jury instructions 6.2 (Attempted Murder— First Degree (Premeditated)); 6.3 (Attempted Felony Murder); 6.3(a) (Attempted Felony Murder—Injury Caused by Another); 6.4 (Attempted Second Degree Murder); 7.2 (Murder—First Degree); and 7.4 (Murder—Second Degree). The court invites all interested persons to comment on the committee’s proposals, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before September 16, with a certificate of service verifying that a copy has been served on Judge Joseph Anthony Bulone, Committee Chair, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee 32399-1925, schneidb@flcourts.org. A separate request for oral argument should accompany the comment if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until October 7 to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013-02, CASE NO. SC13-456
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 only 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 act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:
      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 driven 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).

If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted First Degree Murder.

§ 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 battery784.045 784.041(1)8.4 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 February 2013, 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.
    6.3 ATTEMPTED FELONY MURDER
    [ENUMERATED FELONY] [NON-ENUMERATED FELONY]
    § 782.051(1) and (2), Fla. Stat.

    To prove the crime of Attempted Felony Murder, the State must prove the following three elements beyond a reasonable doubt:
          1. (Defendant) [committed] [attempted to commit] a (crime alleged).
          2. While engaged in the [commission] [attempted commission] [escape from the immediate scene] of (crime alleged), the defendant [committed] [aided or abetted] an intentional act that is not an essential element of (crime alleged).
          3. This intentional act could have but did not cause the death of (victim).

        (Crime alleged) is defined by Florida law as (define the crime).
    In order to convict (defendant) the defendant of Attempted Felony Murder, it is not necessary for the State to prove that [he] [she] had a premeditated design or intent to kill.

    If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla. 2007).

    § 782.065(2), Fla. Stat. Enhanced penalty. Give as applicable..
    If you find the defendant guilty of Attempted Felony 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

      No lesser included offenses have been identified for this offense.

      6.3 ATTEMPTED FELONY MURDER
      [ENUMERATED FELONY] [NON-ENUMERATED FELONY]
      § 782.051(1) and (2), Fla. Stat.
      CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
      Attempted Manslaughter By Act782.07 & 777.046.6
      Aggravated Battery784.0458.4
      Felony Battery784.041(1)8.5
      Aggravated Assault784.0218.2
      Battery784.038.3
      Assault784.0118.1
      Comment

      Section 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section 782.04(3). Section 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section 782.04(3), Fla. Stat.

      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 February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

      This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2013. See Battle v. State, 911 So. 2d 85 (Fla. 2005).
      6.3(a) ATTEMPTED FELONY MURDER – INJURY CAUSED BY ANOTHER
      § 782.051(3) Fla. Stat.

      To prove the crime of Attempted Felony Murder, the State must prove the following two elements beyond a reasonable doubt:
            1. (Defendant) [committed] [attempted to commit] a (crime alleged).
            2. (Victim) was injured during the [commission] [attempted commission]of an escape from the immediate scene of the (crime alleged) by an individual other than the person(s) [committing] [attempting to commit] [escaping from the immediate scene of] the (crime alleged).

      (Crime alleged) is defined by Florida law as (define the crime).

      In order to convict the defendant of attempted felony murder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

      If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla. 2007).

      § 782.065(2), Fla. Stat. Enhanced penalty. Give as applicable..
      If you find the defendant guilty of Attempted Felony 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

        No lesser included offenses have been identified for this offense.
        6.3(a) ATTEMPTED FELONY MURDER – INJURY CAUSED
        BY ANOTHER § 782.051(3) Fla. Stat.
        CATEGORY ONECATEGORY TWOFLA.STAT.INS. NO.
        None
        Attempted Manslaughter by Act782.07& 777.046.6
        Comment

        Section 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in section 782.04(3).

        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 February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

        This instruction was adopted in 2007 [962 So. 2d 310] 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 the defendant 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 only 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] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation:
              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 driven 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).
                  If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted Second Degree Murder.

                  § 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 battery784.045 784.041(1)8.4 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 February 2013, 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 only 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 act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:

                            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 driven 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).
                    If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of First Degree Premeditated Murder.

                    § 782.065(2), 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 Battery784.041(1)8.5
                    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 February 2013, 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 only 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] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation:
                          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 driven 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).

                            If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Second Degree Murder.

                            § 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
                              Attempted Manslaughter by Act782.07 and 777.046.6
                              Culpable negligence Felony battery784.05(1) 784.041(1)8.9 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 February 2013, 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: 08-08-2014]