Motion To Continue Trial No. 3 in Bannister Adv State of Florida

Filing # 59792913 E-Filed 08/01/2017 02:34:23 PM
IN THE CIRCUIT COURT OF THE FIFTH

JUDICIAL CIRCUIT IN AND FOR MARION
COUNTY FLORIDA
STATE OF FLORIDA CASE NO: 2011-CF-3085-CF-A-X

v.
JAMES EDWARD BANNISTER
Defendant /
DEFENDANTS THIRD MOTION TO CONTINUNE
The defendant, JAMES BANNISTER, pursuant to FRCrP 3.190(g)(4), respectfully
request that this Court continue his trial based on the below stated good cause:
1. The defendant is charged with four counts of first degree murder wherein the state
is seeking the death penalty as to each count.
2. As such, in the event of a conviction as to any count, the trial will move into the
penalty phase.
3. At the conclusion of the penalty phase, it will be this Courts duty to instruct the
jury on the law applicable to penalty phase, and ultimately the jury's, and each juror's duty to
apply the law in his/her deliberations in order to return a lawful verdict.
4. For the reasons stated below, this Court will be unable to properly and lawfully
instruct the jury on the law applicable to penalty phase. Consequently, the jury and each
individual juror will be unable to render a proper and lawful verdict in the defendant's case.
1
5. On April 13, 2017, the Florida Supreme Court (FSC) set forth, on an interim
basis, amended standard jury instructions relevant to death penalty cases, in response
to Hurst v. Florida, 136 S. Ct. 616 (2016), and Chapter 2017-1, Laws of Florida enacted by the
legislature, which became effective March 13, 2017. See In Re: Standard Criminal Jury
Instructions In Capital Cases, SC17-583 (April 13, 2017) attached hereto as Exhibit "A".
6. All comments, in accordance with the procedure for submitting same, were to be
submitted to the FSC by May 29, 2017, with a copy to the jury instructions committee Chair,
along with any requests for oral argument. Id. at fn. 2.
7. In addition to the jury instruction committee's (committee) proposed amendments
(attached hereto as Exhibit B), comments were filed by the Florida Public Defender
Association (attached hereto as Exhibit C) and the Florida Prosecuting Association, among
others.
8. The committee had until June 28, 2017 to file a response to any comments and
propose any changes. Id.
9. To date, there has been no oral argument(s) scheduled and no jury instructions
adopted.
10. On September 2, 2016, this Court entered an order that all pretrial motions
regarding the death penalty or newly promulgated jury instructions regarding the death penalty
shall be filed within 90 days of the promulgation of said instructions by the Florida Supreme
Court. See this Courts order attached hereto as Exhibit D.
2
11. Because the law is unknown as it would be explained to the jury in the
defendant's case, the defendant's trial should not go forward.
12. Defendant objects to his trial proceeding in that it would be a violation of the
following Federal Constitutional rights:
a. Defendant's sixth amendment right to a fair trial by jury and affective assistance of
counsel,
b. Defendant's eighth amendment right to be free from cruel and unusual punishment
and arbitrariness, and to be afforded guarantees of reliability in sentencing,
c. Defendants fourteenth amendment right to due process of law, substantive and

procedural. The defendant is not on notice as to what the proper law is on which the jury
would be and should be instructed, and
d. Defendant's fourteenth amendment right to equal protection. Unlike all other

defendants who will be tried after finalization of the jury instructions, this Defendant is
without the benefit of correct, finalized jury instructions which are determinative in the
consideration of whether the ultimate punishment will be imposed.
13. Defendant objects to his trial proceeding in that it would be a violation of the
following Florida Constitutional rights:
a. Defendant's basic rights under Article 1, section 2,
b. Defendant's due process rights under Article 1, section 9,
c. Defendant's right of procedural due process and right to be heard under Article 1,
section 16, and
d. Defendant's right to be free from excessive punishment, arbitrariness and his right
to be afforded guarantees of reliability under Article 1, section 17.
3
Wherefore, the Defendant, James Bannister, respectfully requests that this Court continue
his case until jury instructions have been finalized and adopted by the Florida Supreme Court.
Respectfully submitted this 1 day of August, 2017.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of this Motion has been served
upon the Office of the State Attorney, eservicemarion@sao5.org via e-mail on this 1 day of
August, 2017.
/s/ Terence M. Lenamon

Terence M. Lenamon, Esq.
Lenamon Law, PLLC
Florida Bar No. 970476
245 SE 1st St.
Miami, Florida 33131
p.305-373-9911
f.305-503-6973
4
Supreme Court of Florida
____________
No. SC17-583
____________
IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS

IN CAPITAL CASES.
[April 13, 2017]
PER CURIAM.
This matter is before the Court on our own motion to consider the criminal
jury instructions pertaining to the imposition of the death penalty. On an interim
basis, we authorize for publication and use amended Standard Jury Instructions in
Criminal Cases 7.11 (Preliminary Instructions in Penalty ProceedingsCapital
Cases) and 7.12 (Dialogue for Polling the Jury (Death Penalty Case)). In addition,
we propose, on our own motion, new instructions 3.12(e) (Jury Verdict Form
Death Penalty) and 7.11(a) (Final Instructions in Penalty ProceedingsCapital
Cases).1 We have jurisdiction. See art. V, 2(a), Fla. Const.
1. The amendments and the new jury instructions are based upon proposals
that, while not previously filed with the Court, were published by the Supreme
Court Committee on Standard Jury Instructions in Criminal Cases (Committee).
EXHIBIT A
In Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), the United
States Supreme Court held a portion of Floridas death penalty sentencing scheme
unconstitutional because a jury was not required to find the facts necessary to
impose a sentence of death. See id. at 619. On remand from the Supreme Court,
in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No.
16-998 (U.S. Feb. 13, 2017), we held that in addition to unanimously finding the
existence of any aggravating factor, the jury must also unanimously find that the
aggravating factors are sufficient for the imposition of death and unanimously find
that the aggravating factors outweigh the mitigation before a sentence of death may
be considered by the judge. Id. at 54. We further held that a unanimous jury
recommendation for death is required before a trial court may impose a sentence of
death. Id. In response to Hurst, the Florida Legislature enacted chapter 2017-1,
Laws of Florida, effective March 13, 2017. This legislation requires a jury to
unanimously determine that a defendant should be sentenced to death before a trial
court may impose the death penalty.
In light of chapter 2017-1, Laws of Florida, and our decision in Hurst, we
hereby authorize on an interim basis the publication and use of jury instructions
3.12(e), 7.11, 7.11(a), and 7.12, as set forth in the appendix to this opinion.
We take this opportunity to thank the Committee for its dedication to this
significant undertaking.
-2-
Certain language that previously appeared in jury instruction 7.11, unrelated to the
portion of Floridas death penalty law that was deemed constitutionally
problematic in Hurst v. Florida and Hurstfor example, the definitions of
statutory aggravating factorshas been transferred to new instruction 7.11(a)
without any substantive changes. In adopting these interim instructions, we
express no opinion on their correctness and further note that this authorization
forecloses neither requesting additional or alternative instructions, nor contesting
the legal correctness of the instructions. New language is indicated by underlining,
and deleted language is struck through. These interim instructions are authorized
for use immediately and until further order of the Court.
We seek comments and suggestions on the interim instructions from the
Committee, specifically with regard to those changes that are based upon chapter
2017-1, Laws of Florida, and Hurst. We further invite comments from any other
interested persons regarding these specific aspects of the interim instructions. All
comments shall be filed with the Court no later than forty-five days from the date
of this opinion.2
2. All comments must be filed with the Court on or before May 29, 2017,
with a certificate of service verifying that a copy has been served on the Criminal
Jury Instructions Committee Chair, The Honorable F. Rand Wallis, c/o Bart
Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee,
Florida 32399-1925, schneidb@flcourts.org, as well as a separate request for oral
argument if the person filing the comment wishes to participate in oral argument,
which may be scheduled in this case. The Committee has until June 28, 2017, to
-3-
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.
PARIENTE, J., concurring.
I write in response to Justice Polstons dissent, which apparently disagrees
with authorizing the proposed jury instructions for publication on an interim basis.
Regardless of his views on the merits of Hurst v. State (Hurst), 202 So. 3d 40 (Fla.
2016), Justice Polston ignores that there is now legislation passed by the
Legislature and signed into law by the Governor, effective March 13, 2017, which
requires a unanimous jury verdict of death. Ch. 2017-1, 1 Laws of Fla.; see
file a response to any comments filed with the Court, as well as to propose any
suggested modifications deemed appropriate and necessary. 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 nonlawyer 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.
-4-
921.141(2), Fla. Stat. (2016); see also Perry v. State, 41 Fla. L. Weekly S449
(Fla. Oct. 14, 2016). Ironically, even while continuing to adhere to his views on
Hurst, Justice Polston joined the majority in Evans v. State, 42 Fla. L. Weekly
S200 (Fla. Feb. 20, 2017), concluding that chapter 2016-13, Laws of Florida, could
be applied to pending prosecutions with jury instructions consistent with Hurst.
Clearly the new capital sentencing law applies to pending prosecutions in
Florida, and it is this Courts obligation to provide guidance to the trial courts,
lawyers, litigants, and, most importantly, the jurythe finder of factas to the
proper instructions on the law and verdict form. Thus, I concur in the majoritys
authorization of the jury instructions and verdict form, which are consistent with
the Legislatures most recent revision to Floridas capital sentencing law.
LAWSON, J., specially concurring.
In light of changes to section 921.141, Florida Statutes, made by the
Legislature in 2016 and recently in chapter 2017-1, Laws of Florida, I am not
opposed to issuing proposed jury instructions for comment. I agree that the jury
should be asked to render a verdict as to each aggravating circumstance alleged by
the State, since that is expressly required by the statute and since the death penalty
cannot be imposed unless at least one aggravating factor is proven beyond a
-5-
reasonable doubt. 921.141(2)(b)1, Fla. Stat. (2016).3 The jurys decision as to
each aggravator, of course, must be unanimous. 921.141(2)(b), Fla. Stat.
However, I question whether we need special verdicts as to each statutory
mitigating circumstance or as to the weighing process.4 See ch. 2017-1, 1, Laws
of Fla. (If a unanimous jury determines that the defendant should be sentenced to
death, the jurys recommendation to the court shall be a sentence of death.). I
would invite comment as to whether it would be preferable to ask a jury that
unanimously finds an aggravating factor to then simply return a general verdict
reflecting its sentencing recommendation, consistent with the statute.
3. Section 921.141 requires the jury to return findings identifying each

aggravating factor found to exist. 921.141(2)(b), Fla. Stat. (2016). The statute
also provides that the defendant is eligible for a sentence of death only if the jury
[u]nanimously finds at least one aggravating factor. 921.141(2)(b)2.
4. Section 921.141(2)(b) directs that the jury must base its recommendation
on whether sufficient aggravating factors exist and whether the aggravating factors
outweigh the mitigating circumstances. A properly instructed jury could simply be
instructed to answer yes or no to the following question: Do you unanimously
recommend a sentence of death? It makes no sense to me to have the jury make
findings on mitigating circumstances because that is not required by the statute and
because the jurys verdict is only a recommendation to the judge, who must then
make independent findings as to mitigating circumstances and make an
independent sentencing decision. The majoritys proposed interrogatory-style
verdicts would imply that the judge should be bound by a jurys assessment of
mitigating circumstances, which is contrary to the statute and makes no sense. Are
we really suggesting that the sentencing judge cannot find a circumstance to be
mitigating unless found by the jury? If detailed jury findings as to mitigating
circumstances are not intended to be binding on the sentencing judge, I question
why they are needed at all.
-6-
POLSTON, J., dissenting.
The proposed jury instructions are based in part on this Courts decision in
Hurst v. State, 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S.
Feb. 13, 2017). Accordingly, because I continue to believe that the United States
Constitution and the United States Supreme Courts decision in Hurst v. Florida,
136 S. Ct. 616 (2016), do not support this Courts erroneous holding in Hurst v.
State, I dissent. As Justice Canady cogently explained,
[c]ontrary to the majoritys view, each fact necessary to

impose a sentence of death that must be found by a jury is not
equivalent to each determination necessary to impose a death
sentence. The case law makes clear beyond any doubt that when the
[United States Supreme] Court refers to facts in this context it
denotes elements or their functional equivalent. And the case law
also makes clear beyond any doubt that in the process for imposing a
sentence of death, once the jury has found the element of an
aggravator, no additional facts need be proved by the government to
the jury. After an aggravator has been found, all the determinations
necessary for the imposition of a death sentence fall outside the
category of such facts.
Hurst v. State, 202 So. 3d at 77 (Canady, J., dissenting).
Contrary to Justice Parientes assertion in her concurring opinion, I have not
forgotten that the Florida Legislature was forced to address the majoritys
erroneous ruling. And although I agreed in an earlier decision that chapter 2016-
13, Laws of Florida, could be applied to pending prosecutions with jury
instructions, there is nothing ironic about that. I agree that the Court should
approve relevant instructions but through our normal committee process to address
-7-
chapter 2017-1, Laws of Florida. Until that happens, I do not believe our trial
courts are frozen and unable to function without hearing how to instruct a jury
from this Court. They are better than that.
CANADY, J., concurs.
Original Proceeding Supreme Court Committee on Standard Jury Instructions in

Criminal Cases
-8-
APPENDIX
3.12(e) JURY VERDICT FORMDEATH PENALTY
We the jury find as follows as to (Defendant) in this case:
A. Aggravating Factors as to Count ___:
We the jury unanimously find that the State has established beyond a
reasonable doubt the existence of (aggravating factor).
YES _________
NO __________
Repeat this step for each statutory aggravating factor submitted to the jury.
If you answer YES to at least one of the aggravating factors listed, please
proceed to Section B. If you answered NO to every aggravating factor listed,
do not proceed to Section B; (Defendant) is not eligible for the death sentence
and will be sentenced to life in prison without the possibility of parole.
B. Sufficiency of the Aggravating Factors as to Count ___:
Reviewing the aggravating factors that we unanimously found to be

established beyond a reasonable doubt (Section A), we the jury
unanimously find that the aggravating factors are sufficient to warrant
a possible sentence of death.
YES _________
NO __________
If you answer YES to Section B, please proceed to Section C. If you answer

NO to Section B, do not proceed to Section C; (Defendant) will be sentenced to
life in prison without the possibility of parole.
C. Statutory Mitigating Circumstances:
We the jury find that (statutory mitigating circumstance) was

established by the greater weight of the evidence.
-9-
YES _________
NO __________
If you answered YES above, please provide the jury vote as to the
existence of (statutory mitigating circumstance).
VOTE OF ____ TO ____.
Repeat for each statutory mitigating circumstance.
Please proceed to Section D, regardless of your findings in Section C.
D. Eligibility for the Death Penalty for Count ___.
We the jury unanimously find that the aggravating factors that were
proven beyond a reasonable doubt (Section A) outweigh the
mitigating circumstances established (Section C above) as to Count
___.
YES _________
NO __________
If you answered YES to Section D, please proceed to Section E. If you

answered NO to Section D, do not proceed; (Defendant) will be sentenced to
life in prison without the possibility of parole.
E. Jury Verdict as to Death Penalty
Having unanimously found that at least one aggravating factor has

been established beyond a reasonable doubt (Section A), that the
aggravating factors are sufficient to warrant a sentence of death
(Section B), and the aggravating factors outweigh the mitigating
circumstances (Section D), we the jury unanimously find that
(Defendant) should be sentenced to death.
YES __________
NO ___________
If NO, our vote to impose a sentence of life is _____ to _____.
If your vote to impose death is less than unanimous, the trial court shall
impose a sentence of life without the possibility of parole.
- 10 -
Dated this __________ day of _________, 20__, in ______ County, Florida.
___________________________________
(Signature of foreperson)
7.11 PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS

CAPITAL CASES
921.141, Fla. Stat.
This instruction is to be given immediately before the opening statements in the

penalty phase of a death penalty case.
Give 1a at the beginning of penalty proceedings before a jury that did not
try the issue of guilt. Give bracketed language if the case has been remanded for a
new penalty proceeding. See Hitchcock v. State, 673 So. 2d 859 (Fla. 1996). In
addition, give the jury other appropriate general instructions.
1. a. Ladies and gentlemen Members of the jury, the defendant
has been found guilty of ____ count[s] of Murder in the First
Degree in a previous proceeding. [An appellate court has
reviewed and affirmed the defendants conviction. However, the
appellate court sent the case back to this court with instructions
that the defendant is to have a new trial to decide what sentence
should be imposed.] Consequently, you will not concern
yourselves with the question of [his] [her] guilt. The only issue
before you is to determine the appropriate sentence.
Give 1b at the beginning of penalty proceedings before the jury that found
the defendant guilty.
b. Ladies and gentlemen Members of the jury, you have found
the defendant guilty of count[s] of Murder in the First
Degree.
For murders committed prior to before May 25, 1994, the penalties were
different; therefore, for crimes committed before that date, the following
instruction paragraph should be modified to comply with the statute in effect at the
time the crime was committed. If the jury inquires whether the defendant will
- 11 -
receive credit for time served against a sentence of life without possibility of parole
for 25 years, the court should instruct that the defendant will receive credit for all
time served but that there is no guarantee the defendant will be granted parole
either upon serving 25 years or subsequently. See Green v. State, 907 So. 2d 489,
496 (Fla. 2005).
2. The punishment for this crime is either death or life
imprisonment without the possibility of parole or death. The
decision as to which punishment shall be imposed rests with the
judge of this court; however, the law requires that you, the jury,
provide an advisory sentence as to which punishment should be
imposed upon the defendant.
Give this instruction in all cases before taking evidence in penalty

proceedings.
The attorneys will now have an opportunity, if they wish, to make an
opening statement. The opening statement gives the attorneys a chance to tell
you what evidence they believe will be presented during the penalty phase of
this trial. What the lawyers say during opening statements is not evidence,
and you are not to consider it as such. After the attorneys have had the
opportunity to present their opening statements, theThe State and the
defendant may now present evidence relative to the nature of the crime and
the defendants character, background, or life of the defendant. You are
instructed that this evidence is presented in order for you to determine, as you
will be instructed, (1) whether each aggravating factor is proven beyond a
reasonable doubt; (2) whether one or more aggravating factors exist beyond a
reasonable doubt; (3) whether the aggravating factors found to exist beyond a
reasonable doubt are sufficient to justify the imposition of the death penalty;
(4) whether mitigating circumstances are proven by the greater weight of the
evidence; (5) whether the aggravating factors outweigh the mitigating
circumstances; and (6) whether the defendant should be sentenced to life
imprisonment without the possibility of parole or death. At the conclusion of
the evidence and after argument of counsel, you will be instructed on the law
that will guide your deliberations.
Give only to the jury that found the defendant guilty.

this evidence when considered with the evidence you have already heard
Give only to a new penalty phase jury.

this evidence
- 12 -
is presented in order that you might determine, first, whether sufficient
aggravating circumstances exist that would justify the imposition of the death
penalty and, second, whether there are mitigating circumstances sufficient to
outweigh the aggravating circumstances, if any. At the conclusion of the
taking of the evidence and after argument of counsel, you will be instructed on
the factors in aggravation and mitigation that you may consider.
Give after the taking of evidence and argument.

It is now your duty to advise the court as to the punishment that should
be imposed upon the defendant for the crime of First Degree Murder. You
must follow the law that will now be given to you and provide an advisory
sentence based upon your determination as to whether sufficient aggravating
circumstances exist to justify the imposition of the death penalty or whether
sufficient mitigating circumstances exist that outweigh any aggravating
circumstances found to exist. The definition of aggravating and mitigating
circumstances will be given to you in a few moments. As you have been told,
the final decision as to which punishment shall be imposed is the responsibility
of the judge. In this case, as the trial judge, that responsibility will fall on me.
However, the law requires you to provide me with an advisory sentence as to
which punishment should be imposedlife imprisonment without the
possibility of parole or the death penalty.
Give only in cases where mitigation was presented to the jury by the
defendant and not where mitigation was waived.
Although the recommendation of the jury as to the penalty is advisory
in nature and is not binding, the jury recommendation must be given great
weight and deference by the Court in determining which punishment to
impose.

Your advisory sentence should be based upon the evidence of
aggravating and mitigating circumstances that you have heard while trying
the guilt or innocence of the defendant and the evidence that has been
presented to you in these proceedings.

Your advisory sentence should be based upon the evidence of
aggravating and mitigating circumstances that has been presented to you in
these proceedings.
- 13 -
Weighing the evidence.
It is up to you to decide which evidence is reliable. You should use your
common sense in deciding which is the best evidence, and which evidence
should not be relied upon in considering your verdict. You may find some of
the evidence not reliable, or less reliable than other evidence.
Credibility of witnesses.
You should consider how the witnesses acted, as well as what they said.
Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the
things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the

attorneys questions?
4. Did the witness have some interest in how the case should be
decided?
5. Did the witness testimony agree with the other testimony and
other evidence in the case?
6. Had the witness been offered or received any money, preferred

treatment or other benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that
affected the truth of the witness testimony?
8. Did the witness at some other time make a statement that is

inconsistent with the testimony he or she gave in court?
9. Has the witness been convicted of a felony or of a misdemeanor

involving [dishonesty] [false statement]?
10. Does the witness have a general reputation for [dishonesty]

[truthfulness]?
Law enforcement witness.
- 14 -
The fact that a witness is employed in law enforcement does not mean
that [his] [her] testimony deserves more or less consideration than that of any
other witness.
Expert witnesses.
Expert witnesses are like other witnesses with one exceptionthe law
permits an expert witness to give an opinion. However, an experts opinion is
only reliable when given on a subject about which you believe that person to
be an expert. Like other witnesses, you may believe or disbelieve all or any
part of an experts testimony.
Accomplices and Informants.

You must consider the testimony of some witnesses with more caution
than others. For example, a witness who [claims to have helped the defendant
commit a crime] [has been promised immunity from prosecution] [hopes to
gain more favorable treatment in his or her own case] may have a reason to
make a false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what
the witness says about the defendant. So, while a witness of that kind may be
entirely truthful when testifying, you should consider [his] [or] [her] testimony
with more caution than the testimony of other witnesses.
Child witness.
You have heard the testimony of a child. No witness is disqualified just
because of age. There is no precise age that determines whether a witness may
testify. The critical consideration is not the witnesss age, but whether the
witness understands the difference between what is true and what is not true,
and understands the duty to tell the truth.
Give only if the defendant did not testify.
A defendant in a criminal case has a constitutional right not to testify at
any stage of the proceedings. You must not draw any inference from the fact
that a defendant does not testify.
Give only if the defendant testified.

The defendant in this case has become a witness. You should apply the
same rules to consideration of [his] [her] testimony that you apply to the
testimony of the other witnesses.
- 15 -
Witness talked to lawyer.
It is entirely proper for a lawyer to talk to a witness about what testimony the
witness would give if called to the courtroom. The witness should not be
discredited by talking to a lawyer about [his] [her] testimony.
Give in all cases.

You may rely upon your own conclusion about the credibility of any
witness. A juror may believe or disbelieve all or any part of the evidence or
the testimony of any witness.
Rules for deliberation.

These are some general rules that apply to your discussion. You must
follow these rules in order to return a lawful recommendation:
1. You must follow the law as it is set out in these instructions. If

you fail to follow the law, your recommendation will be a miscarriage of
justice. There is no reason for failing to follow the law in this case. All
of us are depending upon you to make a wise and legal decision in this
matter.
2. Your recommendation must be decided only upon the evidence

that you have heard from the testimony of the witnesses, [have seen in
the form of the exhibits in evidence] and these instructions.
3. Your recommendation must not be based upon the fact that you
feel sorry for anyone, or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about

them should not influence your recommendation.
5. The jury is not to discuss any question[s] that [a juror] [jurors]

wrote that [was] [were] not asked by the court, and must not hold that
against either party.
6. Your recommendation should not be influenced by feelings of

prejudice, or by racial or ethnic bias, or by sympathy. Your
recommendation must be based on the evidence, and on the law
contained in these instructions.
- 16 -
7. During deliberations, jurors must communicate about the case
only with one another and only when all jurors are present in the jury
room. You are not to communicate with any person outside the jury
about this case. Until you have reached an advisory sentence, you must
not talk about this case in person or through the telephone, writing, or
electronic communication, such as a blog, twitter, e-mail, text message,
or any other means. Do not contact anyone to assist you during
deliberations. These communications rules apply until I discharge you
at the end of the case. If you become aware of any violation of these
instructions or any other instruction I have given in this case, you must
tell me by giving a note to the [court deputy] [bailiff].
8. If you need to communicate with me, send a note through the

[court deputy] [bailiff], signed by the foreperson. If you have questions,
I will talk with the attorneys before I answer, so it may take some time.
You may continue your deliberations while you wait for my answer. I
will answer any questions, if I can, in writing or orally here in open
court.
Aggravating circumstancesFactors:. 921.141(5), Fla. Stat.

An aggravating circumstancefactor is a standard to guide the jury in
making the choice between the alternative recommendations recommending
of life imprisonment without the possibility of parole or death. It is a
statutorily enumerated circumstance which that increases the gravity of a
crime or the harm to a victim.
An You must unanimously agree that each aggravating circumstance

factor must bewas proven beyond a reasonable doubt before it may be
considered by you in arriving at your final recommendationverdict. In order
to consider the death penalty as a possible penalty, you must determine that at
least one aggravating circumstance factor has been proven beyond a
reasonable doubt.
The State has the burden to prove each aggravating circumstance factor
beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt, a
speculative, imaginary, or forced doubt. Such a doubt must not influence you
to disregard an aggravating circumstancefactor if you have an abiding
conviction that it exists. On the other hand, if, after carefully considering,
comparing, and weighing all the evidence, you do not have an abiding
conviction that the aggravating circumstance factor exists, or if, having a
- 17 -
conviction, it is one which is not stable but one which wavers and vacillates,
then the aggravating circumstance factor has not been proved beyond every
reasonable doubt and you must not consider it in providing your an advisory
sentence verdict on the appropriate sentence to the court.

It is to the evidence introduced during the guilt phase of this trial and in
this proceeding, and to it alone, that you are to look for that proof.

It is to the evidence introduced during this proceeding, and to it alone,
that you are to look for that proof.
A reasonable doubt as to the existence of an aggravating circumstance

factor may arise from the evidence, conflicts in the evidence, or the lack of
evidence. If you have a reasonable doubt as to the existence of an aggravating
circumstancefactor, you should must find that it does not exist. However, if
you have no reasonable doubt, you should find that the aggravating
circumstance factor does exist and give it whatever weight you determine it
should receive.
Before moving on to the mitigating circumstances, you must determine

that the aggravating factors are sufficient to impose a sentence of death. If
you do not unanimously agree that the aggravating factors are sufficient to
impose death, do not move on to consider the mitigating circumstances.
The aggravating circumstances that you may consider are limited to any
of the following that you find are established by the evidence:
Give only those aggravating circumstances for which evidence has been
presented.
1. The capital felony was committed by a person previously
convicted of a felony and [under sentence of imprisonment] [on
community control] [on felony probation].
2. The defendant was previously convicted of [another capital

felony] [a felony involving the [use] [threat] of violence to the person].
Because the character of a crime if involving violence or threat of violence

is a matter of law, when the State offers evidence under aggravating circumstance
2 the court shall instruct the jury of the following, as applicable:
- 18 -
Give 2a or 2b as applicable.
a. The crime of (previous crime) is a capital felony.
b. The crime of (previous crime) is a felony involving the [use]

[threat] of violence to another person.
3. The defendant knowingly created a great risk of death to many

persons.
4. The capital felony was committed while the defendant was
[engaged]
[an accomplice]
in
[the commission of]

[an attempt to commit]
[flight after committing or attempting to commit]
any
Check 921.141(5)(d), Fla. Stat., for any change in list of offenses.

[robbery].
[sexual battery].
[aggravated child abuse].
[abuse of an elderly person or disabled adult resulting in great
bodily harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device
or bomb].
5. The capital felony was committed for the purpose of avoiding or

preventing a lawful arrest or effecting an escape from custody.
6. The capital felony was committed for financial gain.
- 19 -
7. The capital felony was committed to disrupt or hinder the lawful
exercise of any governmental function or the enforcement of laws.
8. The capital felony was especially heinous, atrocious or cruel.
Heinous means extremely wicked or shockingly evil.
Atrocious means outrageously wicked and vile.
Cruel means designed to inflict a high degree of pain with utter

indifference to, or even enjoyment of, the suffering of others.
The kind of crime intended to be included as heinous, atrocious,

or cruel is one accompanied by additional acts that show that the
crime was conscienceless or pitiless and was unnecessarily
torturous to the victim.
9. The capital felony was a homicide and was committed in a cold,

calculated, and premeditated manner, without any pretense of moral or
legal justification.
Cold means the murder was the product of calm and cool
reflection.
Calculated means having a careful plan or prearranged design

to commit murder.
A killing is premeditated if it occurs after the defendant

consciously decides to kill. 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.
However, in order for this aggravating circumstance to apply, a

heightened level of premeditation, demonstrated by a substantial
period of reflection, is required.
- 20 -
A pretense of moral or legal justification is any claim of
justification or excuse that, though insufficient to reduce the
degree of murder, nevertheless rebuts the otherwise cold,
calculated, or premeditated nature of the murder.
10. The victim of the capital felony was a law enforcement officer
engaged in the performance of [his] [her] official duties.
11. The victim of the capital felony was an elected or appointed public
official engaged in the performance of [his] [her] official duties, if the
motive for the capital felony was related, in whole or in part, to the
victims official capacity.
12. The victim of the capital felony was a person less than 12 years of
age.
13. The victim of the capital felony was particularly vulnerable due to
advanced age or disability, or because the defendant stood in a position
of familial or custodial authority over the victim.
With the following aggravating factor, definitions as appropriate from

874.03, Fla. Stat., must be given.
14. The capital felony was committed by a criminal street gang
member.
15. The capital felony was committed by a person designated as a

sexual predator or a person previously designated as a sexual predator
who had the sexual predator designation removed.
16. The capital felony was committed by a person subject to
[a domestic violence injunction issued by a Florida judge],

[a [repeat] [sexual] [dating] violence injunction issued by a
Florida judge],
[a protection order issued from [another state] [the District of
Columbia] [an Indian tribe] [a commonwealth, territory, or
possession of the United States]],
and
- 21 -
the victim of the capital felony was [the person] [a [spouse] [child]
[sibling] [parent] of the person] who obtained the [injunction]
[protective order].
Merging aggravating factors.

Give the following paragraph if applicable. When it is given, you must also
give the jury an example specifying each potentially duplicitous aggravating
circumstance. See Castro v. State, 597 So. 2d 259 (Fla. 1992).
The State may not rely upon a single aspect of the offense to establish
more than one aggravating circumstance. Therefore, if you find that two or
more of the aggravating circumstances are proven beyond a reasonable doubt
by a single aspect of the offense, you are to consider that as supporting only
one aggravating circumstance.
If you find the aggravating circumstances do not justify the death
penalty, your advisory sentence should be one of life imprisonment without
possibility of parole.
Mitigating cCircumstances. 921.141(6), Fla. Stat.:

Should you find sufficient aggravating circumstances factors do exist to
justify recommending the imposition of the death penalty, it will then be your
duty to determine whether the aggravating factors that you unanimously find
to have been proven beyond a reasonable doubt outweigh the mitigating
circumstances outweigh the aggravating circumstances that you find to
existhave been established. Unlike aggravating factors, you do not need to
unanimously agree that a mitigating circumstance has been established.
A mitigating circumstance is not limited to the facts surrounding the

crime. It can be anything in the life of the defendant which might indicate
that the death penalty is not appropriate for the defendant. In other words, a
mitigating circumstance may include any aspect of the defendants character,
background, or life or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case.
A mitigating circumstance need not be provedn beyond a reasonable

doubt by the defendant. A mitigating circumstance need only be provedn by
the greater weight of the evidence, which means evidence that more likely
than not tends to prove the existence of a mitigating circumstance. If you
determine by the greater weight of the evidence that a mitigating
circumstance exists, you may consider it established and give that evidence
- 22 -
such weight as you determine it should receive in reaching your conclusion as
to the sentence to be imposed.
Among the mitigating circumstances you may consider are:

Give only those mitigating circumstances for which evidence has been
presented.
1. The defendant has no significant history of prior criminal activity.
If the defendant offers evidence on this circumstance and the State, in

rebuttal, offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating circumstance to be
considered in determining the penalty to be imposed on the defendant, but a
conviction of that crime may be considered by the jury in determining
whether the defendant has a significant history of prior criminal activity.
2. The capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
3. The victim was a participant in the defendants conduct or

consented to the act.
4. The defendant was an accomplice in the capital felony committed

by another person and [his] [her] participation was relatively minor.
5. The defendant acted under extreme duress or under the

substantial domination of another person.
6. The capacity of the defendant to appreciate the criminality of [his]

[her] conduct or to conform [his] [her] conduct to the requirements of
law was substantially impaired.
7. The age of the defendant at the time of the crime.
8. The existence of any other factors in the defendants character,

background or life, or the circumstances of the offense that would
mitigate against the imposition of the death penalty.
If one or more aggravating circumstances are established, you should

consider all the evidence tending to establish one or more mitigating
- 23 -
circumstances and give that evidence such weight as you determine it should
receive in reaching your conclusion as to the sentence that should be imposed.
Victim impact evidence. Give 1, or 2, or 3, or all as applicable.

You have heard evidence about the impact of this homicide on the
1. family,
2. friends,
3. community
of (decedent). This evidence was presented to show the victims uniqueness as

an individual and the resultant loss by (decedents) death. However, you may
not consider this evidence as an aggravating circumstance. Your
recommendation to the court must be based on the aggravating circumstances
and the mitigating circumstances upon which you have been instructed.
Recommended sentence.
The sentence that you recommend must be based upon the facts as you
find them from the evidence and the law. If, after weighing the aggravating
and mitigating circumstances, you determine that at least one aggravating
circumstance is found to exist and that the mitigating circumstances do not
outweigh the aggravating circumstances, or, in the absence of mitigating
factors, that the aggravating factors alone are sufficient, you may recommend
that a sentence of death be imposed rather than a sentence of life in prison
without the possibility of parole. Regardless of your findings in this respect,
however, you are neither compelled nor required to recommend a sentence of
death. If, on the other hand, you determine that no aggravating
circumstances are found to exist, or that the mitigating circumstances
outweigh the aggravating circumstances, or, in the absence of mitigating
factors, that the aggravating factors alone are not sufficient, you must
recommend imposition of a sentence of life in prison without the possibility of
parole rather than a sentence of death.
The process of weighing aggravating and mitigating factors to

determine the proper punishment is not a mechanical process. The law
contemplates that different factors may be given different weight or values by
different jurors. In your decision-making process, you, and you alone, are to
decide what weight is to be given to a particular factor.
- 24 -
In these proceedings it is not necessary that the advisory sentence of the
jury be unanimous.
The fact that the jury can recommend a sentence of life imprisonment
or death in this case on a single ballot should not influence you to act hastily
or without due regard to the gravity of these proceedings. Before you ballot
you should carefully weigh, sift, and consider the evidence, realizing that
human life is at stake, and bring your best judgment to bear in reaching your
advisory sentence.
If a majority of the jury, seven or more, determine that (defendant)

should be sentenced to death, your advisory sentence will be:
A majority of the jury by a vote of _________, to

__________ advise and recommend to the court that it
impose the death penalty upon (defendant).
On the other hand, if by six or more votes the jury determines that
(defendant) should not be sentenced to death, your advisory sentence will be:
The jury advises and recommends to the court that it
impose a sentence of life imprisonment upon
(defendant) without possibility of parole.
When you have reached an advisory sentence in conformity with these

instructions, that form of recommendation should be signed by your
foreperson, dated with todays date and returned to the court. There is no set
time for a jury to reach a verdict. Sometimes it only takes a few minutes.
Other times it takes hours or even days. It all depends upon the complexity of
the case, the issues involved and the makeup of the individual jury. You
should take sufficient time to fairly discuss the evidence and arrive at a well
reasoned recommendation.
You will now retire to consider your recommendation as to the penalty

to be imposed upon the defendant.
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1989 [543 So. 2d 1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639
So. 2d 602], 1995 [665 So. 2d 212], 1996 [678 So. 2d 1224], 1997 [690 So. 2d
- 25 -
1263], 1998 [723 So. 2d 123], 2009 [22 So. 3d 17], and 2014 [146 So. 3d 1110],
and 2017.
7.11(a) FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS

CAPITAL CASES
921.141, Fla. Stat.
This instruction should be given after the closing arguments in the penalty
phase of a death penalty trial.
Members of the jury, you have heard all the evidence and the argument
of counsel. It is now your duty to make a decision as to the appropriate
sentence that should be imposed upon the defendant for the crime of First
Degree Murder. There are two possible punishments: (1) life imprisonment
without the possibility of parole, or (2) death.
In making your decision, you must first unanimously determine

whether the aggravating factor[s] alleged by the State [has] [have] been
proven beyond a reasonable doubt. An aggravating factor is a circumstance
that increases the gravity of a crime or the harm to a victim. No facts other
than proven aggravating factors may be considered in support of a death
sentence.
Aggravating factors. 921.141(6), Fla. Stat.

The aggravating factor[s] alleged by the State [is] [are]:
Give only those aggravating factors noticed by the State which are
supported by the evidence.
1. (Defendant) was previously convicted of a felony and [under
sentence of imprisonment] [on community control] [on felony
probation].
2. (Defendant) was previously convicted of [another capital felony] [a

felony involving the [use] [threat] of violence to another person].
- 26 -
3. (Defendant) knowingly created a great risk of death to many

persons.
4. The First Degree Murder was committed while (defendant) was

[engaged] [an accomplice] in [the commission of] [an attempt to
commit] [flight after committing or attempting to commit]
any
[robbery].
[sexual battery].
[abuse of an elderly person or disabled adult resulting in great bodily
harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device or
bomb].
5. The First Degree Murder was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from
custody.
6. The First Degree Murder was committed for financial gain.
7. The First Degree Murder was committed to disrupt or hinder the

lawful exercise of any governmental function or the enforcement of
laws.
8. The First Degree Murder was especially heinous, atrocious or

cruel.
- 27 -

The kind of crime intended to be included as especially heinous,

atrocious, or cruel is one accompanied by additional acts that
show that the crime was conscienceless or pitiless and was
unnecessarily torturous to (decedent).
9. The First Degree Murder was committed in a cold, calculated,

and premeditated manner, without any pretense of moral or legal
justification.
reflection.
Calculated means having a careful plan or prearranged design

to commit murder.

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.
However, in order for this aggravating factor to apply, a

heightened level of premeditation, demonstrated by a substantial
period of reflection, is required.

justification or excuse that, though insufficient to reduce the
degree of murder, nevertheless rebuts the otherwise cold,
calculated, or premeditated nature of the murder.
10. (Decedent) was a law enforcement officer engaged in the

performance of [his] [her] official duties.
- 28 -
11. (Decedent) was an elected or appointed public official engaged in
the performance of [his] [her] official duties, if the motive for the First
Degree Murder was related, in whole or in part, to (decedents) official
capacity.
12. (Decedent) was a person less than 12 years of age.
13. (Decedent) was particularly vulnerable due to advanced age or

disability, or because (defendant) stood in a position of familial or
custodial authority over (decedent).

14. The First Degree Murder was committed by a criminal street
gang member.
15. The First Degree Murder was committed by a person designated

as a sexual predator or a person previously designated as a sexual
predator who had the sexual predator designation removed.
16. The First Degree Murder was committed by a person subject to

Florida judge],
and
the victim of the First Degree Murder was [the person] [a [spouse]
[child] [sibling] [parent] of the person] who obtained the
[injunction] [protective order].
Give in all cases.

As explained before the presentation of evidence, the State has the
burden to prove an aggravating factor beyond a reasonable doubt. A
reasonable doubt is not a mere possible doubt, a speculative, imaginary, or
- 29 -
forced doubt. Such a doubt must not influence you to disregard an
aggravating factor if you have an abiding conviction that it exists. On the
other hand, if, after carefully considering, comparing, and weighing all the
evidence, you do not have an abiding conviction that the aggravating factor
exists, or if, having a conviction, it is one which is not stable but one which
waivers and vacillates, then the aggravating factor has not been proved
beyond every reasonable doubt and you must not consider it in providing a
verdict.
A reasonable doubt as to the existence of an aggravating factor may

arise from the evidence, a conflict in the evidence, or the lack of evidence. If
you have a reasonable doubt as to the existence of an aggravating factor, you
must find that it does not exist. However, if you have no reasonable doubt, you
should find the aggravating factor does exist.
A finding that an aggravating factor exists must be unanimous, that is,

all of you must agree that each presented aggravating factor exists. You will
be provided a form to make this finding [as to each alleged aggravating
factor] and you should indicate whether or not you find [the] [each]
aggravating factor has been proven beyond a reasonable doubt.
If you do not unanimously find that at least one aggravating factor was
proven by the State, then the defendant is not eligible for the death penalty,
and your verdict must be for a sentence of life imprisonment without the
possibility for parole. At such point, your deliberations are complete.
If, however, you unanimously find that [one or more] [the] aggravating
factor[s] [has] [have] been proven beyond a reasonable doubt, then the
defendant is eligible for the death penalty, and you must make additional
findings to determine whether the appropriate sentence to be imposed is life
imprisonment without the possibility of parole or death.
Mitigating circumstances. 921.141(7), Fla. Stat.

If you do unanimously find the existence of at least one aggravating
factor and that the aggravating factor(s) [is] [are] sufficient to impose a
sentence of death, the next step in the process is for you to determine whether
any mitigating circumstances exist. A mitigating circumstance can be
anything in the life of the defendant which might indicate that the death
penalty is not appropriate. It is not limited to the facts surrounding the crime.
A mitigating circumstance may include any aspect of the defendants
- 30 -
character, background, or life or any circumstance of the offense that may
reasonably indicate that the death penalty is not an appropriate sentence in
this case.

presented.
1. (Defendant) has no significant history of prior criminal activity.
If the defendant offers evidence on this circumstance and the State, in

rebuttal, offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating factor to be
conviction of that crime may be considered by the jury in determining
whether the defendant has a significant history of prior criminal activity.

under the influence of extreme mental or emotional disturbance.
3. (Decedent) was a participant in (defendants) conduct or consented

to the act.
4. (Defendant) was an accomplice in the First Degree Murder

committed by another person and [his] [her] participation was
relatively minor.
5. (Defendant) acted under extreme duress or under the substantial

domination of another person.
6. The capacity of (defendant) to appreciate the criminality of [his]

[her] conduct or to conform [his] [her] conduct to the requirements of
law was substantially impaired.
7. (Defendants) age at the time of the crime.
The judge should also instruct on any additional mitigating circumstances

as requested.
8. The existence of any other factors in (defendants) character,
background, or life or the circumstances of the offense that would
- 31 -
It is the defendants burden to prove that mitigating circumstances
exist. As explained before these proceedings, the defendant need only establish
a mitigating circumstance by the greater weight of the evidence, which means
evidence that more likely than not tends to establish the existence of a
mitigating circumstance. If you determine by the greater weight of the
evidence that a mitigating circumstance exists, you must consider it
established and give that evidence such weight as you determine it should
receive in reaching your verdict about the appropriate sentence to be
imposed. Any juror persuaded as to the existence of a mitigating circumstance
must consider it in this case. Further, any juror may consider a mitigating
circumstance found by another juror, even if he or she did not find that factor
to be mitigating.
Your decision regarding the appropriate sentence should be based upon

proven aggravating factors and established mitigating circumstances that
have been presented to you during these proceedings. You will now engage in
a weighing process.
Merging aggravating factors. Give the following paragraph if applicable.

For example, the aggravating circumstances that 1) the murder was committed
during the course of a robbery and 2) the murder was committed for financial
gain, relate to the same aspect of the offense and may be considered as only a
single aggravating circumstance. Castro v. State, 597 So. 2d 259 (Fla. 1992).
Pursuant to Florida law, the aggravating factors of (insert aggravating
factor) and (insert aggravating factor) are considered to merge because they are
considered to be a single aspect of the offense. If you unanimously determine
that the aggravating factors of (insert aggravating factor) and (insert
aggravating factor) have both been proven beyond a reasonable doubt, your
findings should indicate that both aggravating factors exist, but you must
consider them as only one aggravating factor during the weighing process that
I am about to explain to you.
You must weigh all of the following:

a. Whether the aggravating factor[s] found to exist [is] [are] sufficient
to justify the death penalty,
b. Whether the aggravating factor[s] outweigh[s] any mitigating
circumstance[s] found to exist, and
c. Based on all of the considerations pursuant to these instructions,
whether the defendant should be sentenced to life imprisonment
- 32 -
without the possibility of parole or death.
The process of weighing aggravating factors and mitigating

circumstances is not a mechanical or mathematical process. In other words,
you should not merely total the number of aggravating factors and compare
that number to the total number of mitigating circumstances. The law
contemplates that different factors or circumstances may be given different
weight or values by different jurors. Therefore, in your decision-making
process, each individual juror must decide what weight is to be given to a
particular factor or circumstance. Regardless of the results of each jurors
individual weighing processeven if you find that the sufficient aggravators
outweigh the mitigatorsthe law neither compels nor requires you to
determine that the defendant should be sentenced to death.
Once each juror has weighed the proven factors, he or she must
determine the appropriate punishment for the defendant. The jurys decision
regarding the appropriate sentence must be unanimous if death is to be
imposed. To repeat what I have said, if your verdict is that the defendant
should be sentenced to death, your finding that each aggravating factor exists
must be unanimous, your finding that the aggravating factors are sufficient to
impose death must be unanimous, and your finding that the aggravating
factor(s) found to exist outweigh the established mitigating circumstances
must be unanimous, and your decision if to impose a sentence of death must
be unanimous.
You will be provided a form to reflect your findings and decision

regarding the appropriate sentence. If your vote on the appropriate sentence
is less than unanimous, the defendant will be sentenced to life in prison
without the possibility of parole.
The fact that the jury can make its decision on a single ballot should not
influence you to act hastily or without due regard to the gravity of these
proceedings. Before you vote, you should carefully consider and weigh the
evidence, realizing that a human life is at stake, and bring your best judgment
to bear in reaching your verdict.

When considering aggravating factors and mitigating circumstances, it
is up to you to decide which evidence is reliable. You should use your common
sense in deciding which is the best evidence and which evidence should not be
- 33 -
relied upon in making your decision as to what sentence should be imposed.
You may find some of the evidence not reliable, or less reliable than other
evidence.
1. Did the witness seem to have an opportunity to see and know the
things about which the witness testified?

4. Did the witness have some interest in how the case should be
decided?
5. Did the witnesss testimony agree with the other testimony and
other evidence in the case?
Give as applicable.
7. Had any pressure or threat been used against the witness that
affected the truth of the witnesss testimony?



[truthfulness]?
- 34 -
The fact that a witness is employed in law enforcement does not mean
that [his] [her] testimony deserves more or less consideration than that of any
other witness.
Expert witnesses.
only reliable when given on a subject about which you believe that person to
be an expert. Like other witnesses, you may believe or disbelieve all or any
part of an experts testimony.

commit a crime] [has been promised immunity from prosecution] [hopes to
gain more favorable treatment in his or her own case] may have a reason to
make a false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what
the witness says about the defendant. So, while a witness of that kind may be
entirely truthful when testifying, you should consider [his] [her] testimony
with more caution than the testimony of other witnesses.
Child witness.

It is entirely proper for a lawyer to talk to a witness about what
testimony the witness would give if called to the courtroom. The witness
should not be discredited by talking to a lawyer about [his] [her] testimony.
Give in all cases.
- 35 -
witness. A juror may believe or disbelieve all or any part of the evidence or
the testimony of any witness.

The defendant exercised a fundamental right by choosing not to be a
witness in this case. You must not be influenced in any way by [his] [her]
decision. No juror should ever be concerned that the defendant did or did not
take the witness stand to give testimony in the case.

These are some general rules that apply to your discussions. You must
follow these rules in order to make a lawful decision.
1. You must follow the law as it is set out in these instructions. If you
fail to follow the law, your decisions will be a miscarriage of justice.
There is no reason for failing to follow the law in this case. All of us are
depending upon you to make wise and legal decisions in this matter.
2. Your decisions must be based only upon the evidence that you
have heard from the testimony of the witnesses, [have seen in the form
of the exhibits in evidence,] and these instructions.
3. Your decisions must not be based upon the fact that you feel sorry
for anyone or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them
should not influence your decisions.
Give #5 if applicable.
wrote that [was] [were] not asked by the Court, and must not hold that
6. Your decisions should not be influenced by feelings of prejudice,

racial or ethnic bias, or sympathy. Your decisions must
be based on the evidence and the law contained in these
instructions.
Victim-impact evidence.
- 36 -
You have heard evidence about the impact of this murder on the
[family] [friends] [community] of (decedent). This evidence was presented to
show the victims uniqueness as an individual and the resultant loss by
(decedents) death. However, you may not consider this evidence as an
aggravating factor. Your decisions must be based on the aggravating factor[s],
the mitigating circumstance[s], and the weighing process upon which you have
been instructed.
Submitting case to jurors.

In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. When you have reached decisions in conformity with these
instructions, the appropriate form[s] should be signed and dated by your
foreperson.
During deliberations, jurors must communicate about the case only

with one another and only when all jurors are present in the jury room. You
are not to communicate with any person outside the jury about this case, and
you must not talk about this case in person or through the telephone, writing,
or electronic communication, such as a blog, Twitter, e-mail, text message, or
any other means.
Give if judge has allowed jurors to keep their electronic devices during the
penalty phase.
Many of you may have cell phones, tablets, laptops, or other electronic
devices here in the courtroom. The rules do not allow you to bring your
phones or any of those types of electronic devices into the jury room. Kindly
leave those devices on your seats where they will be guarded by the [court
deputy] [bailiff] while you deliberate.
Do not contact anyone to assist you during deliberations. These

communications rules apply until I discharge you at the end of the case. If
you become aware of any violation of these instructions or any other
instruction I have given in this case, you must tell me by giving a note to the
[court deputy] [bailiff].
Give if applicable.
During this trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you
in your deliberations.
- 37 -
Give a or b as appropriate.
a. The[se] exhibit[s] will be sent into the jury room with you
when you begin to deliberate.
b. If you wish to see an[y] exhibit[s], please request that in
writing.
I cannot participate in your deliberations in any way. Please disregard

anything I may have said or done that made you think I preferred one
decision over another. If you need to communicate with me, send a note
through the [court deputy] [bailiff], signed by the foreperson. If you have
questions, I will talk with the attorneys before I answer, so it may take some
time. You may continue your deliberations while you wait for my answer. I
will answer any questions, if I can, in writing or orally here in open court.
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions. There are no other laws that apply to this
case. Even if you do not like the laws that must be applied, you must use them.
For more than two centuries we have lived by the constitution and the law. No
juror has the right to violate rules we all share.
Comment
This instruction was adopted in 2017.
7.12 DIALOGUE FOR POLLING THE JURY (DEATH PENALTY CASE)
Ladies and gentlemen Members of the jury, we are going to ask each of
you individually concerning the advisory sentenceabout the verdict[s] that you
have just heard. It is not necessary that you state how you personally voted, or
how any other person voted, but only if the advisory sentenceThe question[s]
pertain to whether the verdict[s], as read by the clerk, [was] [were] correctly
stated.
The following question is to be asked of each juror if the

recommendationverdict is for the death penalty:
Do you, [Mr.] [Ms.]_____________________________, agree and confirm that
a majority of the jury join in the advisory sentence that you have just heard
- 38 -
read by the clerk? Do you, (name of juror))] [juror number (number of juror)),
agree that each of the findings in the verdict form is yours?
The following question is to be asked of each juror if the

recommendationverdict is for a life sentence:
Do you, [Mr.] [Ms.]_____________________________(name of juror))] [juror
number (number of juror)), agree and confirm that at least six or more one
member of the jury join in the advisory sentence that you have just heard
read by the clerkvoted for a sentence of life imprisonment without the
possibility of parole?
Comment
This instruction was adopted in 1981 and was amended in 1997 and 2017.
- 39 -
We the jury unanimously find that the State has established beyond a reasonable doubt
the existence of (aggravating factor).
YES _________
NO _________
If you answer YES to at least one of the aggravating factors listed, please proceed to Section B. If
you answered NO to every aggravating factor listed, do not proceed to Section B; (Defendant) is not
eligible for the death sentence and will be sentenced to life in prison without the possibility of
parole.
Reviewing the aggravating factors that we unanimously found to be established beyond a

reasonable doubt (Section A), we the jury unanimously find that the aggravating factors
are sufficient to warrant a possible sentence of death.
YES _________
NO _________
If you answer YES to Section B, please proceed to Section C. If you answer NO to Section B, do not
proceed to Section C; (Defendant) will be sentenced to life in prison without the possibility of parole.
We the jury find that (statutory mitigating circumstance) was established by the greater
weight of the evidence.
YES _________
NO _________
If you answered YES above, please provide the jury vote as to the existence of (statutory
mitigating circumstance).
VOTE OF ____ TO ____.
EXHIBIT B
We the jury unanimously find that the aggravating factors that were proven beyond a
reasonable doubt (Section A) outweigh the mitigating circumstances established (Section
C above) as to Count ___.
YES _________
NO _________
If you answered YES to Section D, please proceed to Section E. If you answered NO to Section D,
do not proceed; (Defendant) will be sentenced to life in prison without the possibility of parole.
Having unanimously found that at least one aggravating factor has been established
beyond a reasonable doubt (Section A), that the aggravating factors are sufficient to
warrant a sentence of death (Section B), and the aggravating factors outweigh the
mitigating circumstances (Section D), we the jury unanimously find that (Defendant)
should be sentenced to death.
YES __________
NO __________
If your vote to impose death is less than unanimous, the trial court shall impose a sentence of life
___________________________________
(Signature of foreperson)
Members of the jury, we are going to ask each of you individually about the verdict[s] that
you have just heard. The question[s] pertain to whether the verdict[s], as read by the clerk, [was]
[were] correctly stated.
The following question is to be asked of each juror if the verdict is for the death penalty:
Do you, (name of juror))] [juror number (number of juror)), agree that each of the findings in
the verdict form is yours?
The following question is to be asked of each juror if the verdict is for a life sentence:
Do you, (name of juror))] [juror number (number of juror)), agree that at least one member of
the jury voted for a sentence of life imprisonment without the possibility of parole?
Comment
7.11 PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS CAPITAL CASES
921.141, Fla. Stat.
This instruction is to be given immediately before the opening statements in the penalty phase of a death
penalty case.
Give 1a at the beginning of penalty proceedings before a jury that did not try the issue of guilt.
Give bracketed language if the case has been remanded for a new penalty proceeding. See Hitchcock v.
State, 673 So. 2d 859 (Fla. 1996). In addition, give the jury other appropriate general instructions.
1. a. Members of the jury, the defendant has been found guilty of ____ count[s] of
Murder in the First Degree in a previous proceeding. The only issue before you is to
determine the appropriate sentence.
Give 1b at the beginning of penalty proceedings before the jury that found the defendant guilty.
b. Members of the jury, you have found the defendant guilty of ____ count[s]
of Murder in the First Degree.
For murders committed before May 25, 1994, the following paragraph should be modified to
comply with the statute in effect at the time the crime was committed. If the jury inquires whether the
defendant will receive credit for time served against a sentence of life without possibility of parole for 25
years, the court should instruct that the defendant will receive credit for all time served but that there is
no guarantee the defendant will be granted parole either upon serving 25 years or subsequently. See
Green v. State, 907 So. 2d 489, 496 (Fla. 2005).
2. The punishment for this crime is either life imprisonment without the possibility of
parole or death.
Give this instruction in all cases.

The attorneys will now have an opportunity, if they wish, to make an opening statement.
The opening statement gives the attorneys a chance to tell you what evidence they believe will be
presented during the penalty phase of this trial. What the lawyers say during opening statements is
not evidence, and you are not to consider it as such. After the attorneys have had the opportunity to
present their opening statements, the State and the defendant may present evidence relative to the
nature of the crime and the defendants character, background, or life. You are instructed that this
evidence is presented in order for you to determine, as you will be instructed, (1) whether each
aggravating factor is proven beyond a reasonable doubt; (2) whether one or more aggravating
factors exist beyond a reasonable doubt; (3) whether the aggravating factors found to exist beyond
a reasonable doubt are sufficient to justify the imposition of the death penalty; (4) whether
mitigating circumstances are proven by the greater weight of the evidence; (5) whether the
aggravating factors outweigh the mitigating circumstances; and (6) whether the defendant should
be sentenced to life imprisonment without the possibility of parole or death. At the conclusion of the
evidence and after argument of counsel, you will be instructed on the law that will guide your
deliberations.
Aggravating Factors:
An aggravating factor is a standard to guide the jury in making the choice between
recommending life imprisonment without the possibility of parole or death. It is a statutorily
enumerated circumstance that increases the gravity of a crime or the harm to a victim.
You must unanimously agree that each aggravating factor was proven beyond a reasonable
doubt before it may be considered by you in arriving at your final verdict. In order to consider the
death penalty as a possible penalty, you must determine that at least one aggravating factor has
been proven beyond a reasonable doubt.
The State has the burden to prove each aggravating factor beyond a reasonable doubt. A
reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. Such a
doubt must not influence you to disregard an aggravating factor if you have an abiding conviction
that it exists. On the other hand, if, after carefully considering, comparing, and weighing all the
evidence, you do not have an abiding conviction that the aggravating factor exists, or if, having a
conviction, it is one which is not stable but one which wavers and vacillates, then the aggravating
factor has not been proved beyond every reasonable doubt and you must not consider it in
providing your verdict on the appropriate sentence to the court.
A reasonable doubt as to the existence of an aggravating factor may arise from the evidence,
conflicts in the evidence, or the lack of evidence. If you have a reasonable doubt as to the existence
of an aggravating factor, you must find that it does not exist. However, if you have no reasonable
doubt, you should find that the aggravating factor does exist.
Before moving on to the mitigating circumstances, you must determine that the aggravating
factors are sufficient to impose a sentence of death. If you do not unanimously agree that the
aggravating factors are sufficient to impose death, do not move on to consider the mitigating
circumstances.
Mitigating Circumstances:
Should you find sufficient aggravating factors do exist to justify recommending the
imposition of the death penalty, it will then be your duty to determine whether the aggravating
factors that you unanimously find to have been proven beyond a reasonable doubt outweigh the
mitigating circumstances that you find to have been established. Unlike aggravating factors, you do
not need to unanimously agree that a mitigating circumstance has been established.
A mitigating circumstance is not limited to the facts surrounding the crime. It can be
anything in the life of the defendant which might indicate that the death penalty is not appropriate
for the defendant. In other words, a mitigating circumstance may include any aspect of the
defendants character, background, or life or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case.
A mitigating circumstance need not be proven beyond a reasonable doubt by the defendant.
A mitigating circumstance need only be proven by the greater weight of the evidence, which means
evidence that more likely than not tends to prove the existence of a mitigating circumstance. If you
determine by the greater weight of the evidence that a mitigating circumstance exists, you may
consider it established and give that evidence such weight as you determine it should receive in
reaching your conclusion as to the sentence to be imposed.
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1989 [543 So. 2d
1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639 So. 2d 602], 1995 [665 So. 2d 212],
1996 [678 So. 2d 1224], 1997 [690 So. 2d 1263], 1998 [723 So. 2d 123], 2009 [22 So. 3d 17], 2014 [146
So. 3d 1110], and 2017.
7.11(a) FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS CAPITAL CASES
921.141, Fla. Stat.
This instruction should be given after the closing arguments in the penalty phase of a death
penalty trial.
Members of the jury, you have heard all the evidence and the argument of counsel. It is now
your duty to make a decision as to the appropriate sentence that should be imposed upon the
defendant for the crime of First Degree Murder. There are two possible punishments: (1) life
imprisonment without the possibility of parole, or (2) death.
In making your decision, you must first unanimously determine whether the aggravating
factor[s] alleged by the State [has] [have] been proven beyond a reasonable doubt. An aggravating
factor is a circumstance that increases the gravity of a crime or the harm to a victim. No facts other
than proven aggravating factors may be considered in support of a death sentence.

Give only those aggravating factors noticed by the State which are supported by the evidence.
1. (Defendant) was previously convicted of a felony and [under sentence of
imprisonment] [on community control] [on felony probation].
2. (Defendant) was previously convicted of [another capital felony] [a felony involving

the [use] [threat] of violence to another person].
b. The crime of (previous crime) is a felony involving the [use] [threat] of

violence to another person.
3. (Defendant) knowingly created a great risk of death to many persons.

[engaged] [an accomplice] in [the commission of] [an attempt to commit] [flight after
committing or attempting to commit]
any
[robbery].
[sexual battery].
[abuse of an elderly person or disabled adult resulting in great bodily harm, permanent
disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device or bomb].
5. The First Degree Murder was committed for the purpose of avoiding or preventing
a lawful arrest or effecting an escape from custody.
7. The First Degree Murder was committed to disrupt or hinder the lawful exercise of
any governmental function or the enforcement of laws.
8. The First Degree Murder was especially heinous, atrocious or cruel.
Cruel means designed to inflict a high degree of pain with utter indifference to, or
even enjoyment of, the suffering of others.
The kind of crime intended to be included as especially heinous, atrocious, or cruel

is one accompanied by additional acts that show that the crime was conscienceless
or pitiless and was unnecessarily torturous to (decedent).
9. The First Degree Murder was committed in a cold, calculated, and premeditated
manner, without any pretense of moral or legal justification.
Cold means the murder was the product of calm and cool reflection.
Calculated means having a careful plan or prearranged design to commit murder.
A killing is premeditated if it occurs after the defendant consciously decides to

kill. 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.
However, in order for this aggravating factor to apply, a heightened level of

premeditation, demonstrated by a substantial period of reflection, is required.
A pretense of moral or legal justification is any claim of justification or excuse

that, though insufficient to reduce the degree of murder, nevertheless rebuts the
otherwise cold, calculated, or premeditated nature of the murder.
10. (Decedent) was a law enforcement officer engaged in the performance of [his] [her]
official duties.
11. (Decedent) was an elected or appointed public official engaged in the performance of
[his] [her] official duties, if the motive for the First Degree Murder was related, in whole or
in part, to (decedents) official capacity.
13. (Decedent) was particularly vulnerable due to advanced age or disability, or because
(defendant) stood in a position of familial or custodial authority over (decedent).
With the following aggravating factor, definitions as appropriate from 874.03, Fla. Stat., must
be given.
14. The First Degree Murder was committed by a criminal street gang member.
15. The First Degree Murder was committed by a person designated as a sexual
predator or a person previously designated as a sexual predator who had the sexual
predator designation removed.

Florida judge],
[a protection order issued from [another state] [the District of Columbia] [an Indian
tribe] [a commonwealth, territory, or possession of the United States]],
and
the victim of the First Degree Murder was [the person] [a [spouse] [child] [sibling]
[parent] of the person] who obtained the [injunction] [protective order].
Give in all cases.

As explained before the presentation of evidence, the State has the burden to prove an
aggravating factor beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt, a
speculative, imaginary, or forced doubt. Such a doubt must not influence you to disregard an
aggravating factor if you have an abiding conviction that it exists. On the other hand, if, after
carefully considering, comparing, and weighing all the evidence, you do not have an abiding
conviction that the aggravating factor exists, or if, having a conviction, it is one which is not stable
but one which waivers and vacillates, then the aggravating factor has not been proved beyond every
reasonable doubt and you must not consider it in providing a verdict.
A reasonable doubt as to the existence of an aggravating factor may arise from the evidence,
a conflict in the evidence, or the lack of evidence. If you have a reasonable doubt as to the existence
of an aggravating factor, you must find that it does not exist. However, if you have no reasonable
doubt, you should find the aggravating factor does exist.
A finding that an aggravating factor exists must be unanimous, that is, all of you must agree
that each presented aggravating factor exists. You will be provided a form to make this finding [as
to each alleged aggravating factor] and you should indicate whether or not you find [the] [each]
aggravating factor has been proven beyond a reasonable doubt.
If you do not unanimously find that at least one aggravating factor was proven by the State,
then the defendant is not eligible for the death penalty, and your verdict must be for a sentence of
life imprisonment without the possibility for parole. At such point, your deliberations are complete.
If, however, you unanimously find that [one or more] [the] aggravating factor[s] [has]
[have] been proven beyond a reasonable doubt, then the defendant is eligible for the death penalty,
and you must make additional findings to determine whether the appropriate sentence to be
imposed is life imprisonment without the possibility of parole or death.

If you do unanimously find the existence of at least one aggravating factor and that the
aggravating factor(s) [is] [are] sufficient to impose a sentence of death, the next step in the process
is for you to determine whether any mitigating circumstances exist. A mitigating circumstance can
be anything in the life of the defendant which might indicate that the death penalty is not
appropriate. It is not limited to the facts surrounding the crime. A mitigating circumstance may
include any aspect of the defendants character, background, or life or any circumstance of the
offense that may reasonably indicate that the death penalty is not an appropriate sentence in this
case.

Give only those mitigating circumstances for which evidence has been presented.
If the defendant offers evidence on this circumstance and the State, in rebuttal, offers evidence of
other crimes, also give the following:
Conviction of (previous crime) is not an aggravating factor to be considered in determining
the penalty to be imposed on the defendant, but a conviction of that crime may be considered by the
jury in determining whether the defendant has a significant history of prior criminal activity.
2. The First Degree Murder was committed while (defendant) was under the influence
of extreme mental or emotional disturbance.
3. (Decedent) was a participant in (defendants) conduct or consented to the act.
4. (Defendant) was an accomplice in the First Degree Murder committed by another

person and [his] [her] participation was relatively minor.
5. (Defendant) acted under extreme duress or under the substantial domination of

another person.
6. The capacity of (defendant) to appreciate the criminality of [his] [her] conduct or to

conform [his] [her] conduct to the requirements of law was substantially impaired.
The judge should also instruct on any additional mitigating circumstances as requested.
8. The existence of any other factors in (defendants) character, background, or life or
the circumstances of the offense that would mitigate against the imposition of the death
penalty.
It is the defendants burden to prove that mitigating circumstances exist. As explained

before these proceedings, the defendant need only establish a mitigating circumstance by the
greater weight of the evidence, which means evidence that more likely than not tends to establish
the existence of a mitigating circumstance. If you determine by the greater weight of the evidence
that a mitigating circumstance exists, you must consider it established and give that evidence such
weight as you determine it should receive in reaching your verdict about the appropriate sentence
to be imposed. Any juror persuaded as to the existence of a mitigating circumstance must consider
it in this case. Further, any juror may consider a mitigating circumstance found by another juror,
even if he or she did not find that factor to be mitigating.
Your decision regarding the appropriate sentence should be based upon proven aggravating
factors and established mitigating circumstances that have been presented to you during these
proceedings. You will now engage in a weighing process.
Merging aggravating factors. Give the following paragraph if applicable. For example, the
aggravating circumstances that 1) the murder was committed during the course of a robbery and 2) the
murder was committed for financial gain, relate to the same aspect of the offense and may be considered
as only a single aggravating circumstance. Castro v. State, 597 So. 2d 259 (Fla. 1992).
Pursuant to Florida law, the aggravating factors of (insert aggravating factor) and (insert
aggravating factor) are considered to merge because they are considered to be a single aspect of the
offense. If you unanimously determine that the aggravating factors of (insert aggravating factor) and
(insert aggravating factor) have both been proven beyond a reasonable doubt, your findings should
indicate that both aggravating factors exist, but you must consider them as only one aggravating
factor during the weighing process that I am about to explain to you.

b. Whether the aggravating factor[s] outweigh[s] any mitigating
The process of weighing aggravating factors and mitigating circumstances is not a

mechanical or mathematical process. In other words, you should not merely total the number of
aggravating factors and compare that number to the total number of mitigating circumstances.
The law contemplates that different factors or circumstances may be given different weight or
values by different jurors. Therefore, in your decision-making process, each individual juror must
decide what weight is to be given to a particular factor or circumstance. Regardless of the results of
each jurors individual weighing processeven if you find that the sufficient aggravators outweigh
the mitigatorsthe law neither compels nor requires you to determine that the defendant should be
sentenced to death.
Once each juror has weighed the proven factors, he or she must determine the appropriate
punishment for the defendant. The jurys decision regarding the appropriate sentence must be
unanimous if death is to be imposed. To repeat what I have said, if your verdict is that the
defendant should be sentenced to death, your finding that each aggravating factor exists must be
unanimous, your finding that the aggravating factors are sufficient to impose death must be
unanimous, and your finding that the aggravating factor(s) found to exist outweigh the established
mitigating circumstances must be unanimous, and your decision if to impose a sentence of death
must be unanimous.
You will be provided a form to reflect your findings and decision regarding the appropriate
sentence. If your vote on the appropriate sentence is less than unanimous, the defendant will be
sentenced to life in prison without the possibility of parole.
The fact that the jury can make its decision on a single ballot should not influence you to act
hastily or without due regard to the gravity of these proceedings. Before you vote, you should
carefully consider and weigh the evidence, realizing that a human life is at stake, and bring your
best judgment to bear in reaching your verdict.

When considering aggravating factors and mitigating circumstances, it is up to you to
decide which evidence is reliable. You should use your common sense in deciding which is the best
evidence and which evidence should not be relied upon in making your decision as to what sentence
should be imposed. You may find some of the evidence not reliable, or less reliable than other
evidence.
You should consider how the witnesses acted, as well as what they said. Some things you
should consider are:
1. Did the witness seem to have an opportunity to see and know the things about which the
witness testified?
3. Was the witness honest and straightforward in answering the attorneys questions?
4. Did the witness have some interest in how the case should be decided?
5. Did the witnesss testimony agree with the other testimony and other evidence in the
case?
Give as applicable.
6. Had the witness been offered or received any money, preferred treatment or other
benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that affected the truth of the
witnesss testimony?
8. Did the witness at some other time make a statement that is inconsistent with the
testimony he or she gave in court?
9. Has the witness been convicted of a felony or of a misdemeanor involving [dishonesty]

[false statement]?
10. Does the witness have a general reputation for [dishonesty] [truthfulness]?

The fact that a witness is employed in law enforcement does not mean that [his] [her]
testimony deserves more or less consideration than that of any other witness.
Expert witnesses.
Expert witnesses are like other witnesses with one exceptionthe law permits an expert
witness to give an opinion. However, an experts opinion is only reliable when given on a subject
about which you believe that person to be an expert. Like other witnesses, you may believe or
disbelieve all or any part of an experts testimony.

You must consider the testimony of some witnesses with more caution than others. For
example, a witness who [claims to have helped the defendant commit a crime] [has been promised
immunity from prosecution] [hopes to gain more favorable treatment in his or her own case] may
have a reason to make a false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what the witness says about
the defendant. So, while a witness of that kind may be entirely truthful when testifying, you should
consider [his] [her] testimony with more caution than the testimony of other witnesses.
Child witness.
You have heard the testimony of a child. No witness is disqualified just because of age.
There is no precise age that determines whether a witness may testify. The critical consideration is
not the witnesss age, but whether the witness understands the difference between what is true and
what is not true, and understands the duty to tell the truth.

The defendant in this case has become a witness. You should apply the same rules to
consideration of [his] [her] testimony that you apply to the testimony of the other witnesses.

It is entirely proper for a lawyer to talk to a witness about what testimony the witness would
give if called to the courtroom. The witness should not be discredited by talking to a lawyer about
[his] [her] testimony.
Give in all cases.

You may rely upon your own conclusion about the credibility of any witness. A juror may
believe or disbelieve all or any part of the evidence or the testimony of any witness.

The defendant exercised a fundamental right by choosing not to be a witness in this case.
You must not be influenced in any way by [his] [her] decision. No juror should ever be concerned
that the defendant did or did not take the witness stand to give testimony in the case.

These are some general rules that apply to your discussions. You must follow these rules in
order to make a lawful decision.
1. You must follow the law as it is set out in these instructions. If you fail to follow the
law, your decisions will be a miscarriage of justice. There is no reason for failing to follow
the law in this case. All of us are depending upon you to make wise and legal decisions in
this matter.
2. Your decisions must be based only upon the evidence that you have heard from the
testimony of the witnesses, [have seen in the form of the exhibits in evidence,] and these
instructions.
3. Your decisions must not be based upon the fact that you feel sorry for anyone or are
angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them should not
influence your decisions.
5. The jury is not to discuss any question[s] that [a juror] [jurors] wrote that [was]
[were] not asked by the Court, and must not hold that against either party.
6. Your decisions should not be influenced by feelings of prejudice, racial or ethnic bias,
or sympathy. Your decisions must be based on the evidence and the law contained in these
instructions.
Victim-impact evidence.
You have heard evidence about the impact of this murder on the [family] [friends]
[community] of (decedent). This evidence was presented to show the victims uniqueness as an
individual and the resultant loss by (decedents) death. However, you may not consider this
evidence as an aggravating factor. Your decisions must be based on the aggravating factor[s], the
mitigating circumstance[s], and the weighing process upon which you have been instructed.

In just a few moments you will be taken to the jury room by the [court deputy] [bailiff].
When you have reached decisions in conformity with these instructions, the appropriate form[s]
should be signed and dated by your foreperson.
During deliberations, jurors must communicate about the case only with one another and
only when all jurors are present in the jury room. You are not to communicate with any person
outside the jury about this case, and you must not talk about this case in person or through the
telephone, writing, or electronic communication, such as a blog, Twitter, e-mail, text message, or
any other means.
Give if judge has allowed jurors to keep their electronic devices during the penalty phase.
Many of you may have cell phones, tablets, laptops, or other electronic devices here in the
courtroom. The rules do not allow you to bring your phones or any of those types of electronic
devices into the jury room. Kindly leave those devices on your seats where they will be guarded by
the [court deputy] [bailiff] while you deliberate.
Do not contact anyone to assist you during deliberations. These communications rules apply
until I discharge you at the end of the case. If you become aware of any violation of these
instructions or any other instruction I have given in this case, you must tell me by giving a note to
the [court deputy] [bailiff].
Give if applicable.
During this trial, [an item] [items] [was] [were] received into evidence as [an] exhibit[s]. You
may examine whatever exhibit[s] you think will help you in your deliberations.
a. The[se] exhibit[s] will be sent into the jury room with you when you begin to
deliberate.
b. If you wish to see an[y] exhibit[s], please request that in writing.

I cannot participate in your deliberations in any way. Please disregard anything I may have
said or done that made you think I preferred one decision over another. If you need to
communicate with me, send a note through the [court deputy] [bailiff], signed by the foreperson. If
you have questions, I will talk with the attorneys before I answer, so it may take some time. You
may continue your deliberations while you wait for my answer. I will answer any questions, if I can,
in writing or orally here in open court.
In closing, let me remind you that it is important that you follow the law spelled out in these
instructions. There are no other laws that apply to this case. Even if you do not like the laws that
must be applied, you must use them. For more than two centuries we have lived by the constitution
and the law. No juror has the right to violate rules we all share.
Comment

IN THE SUPREME COURT OF FLORIDA
In Re: Standard Jury Instructions :

: Case No. No. SC17-583
Capital Cases :
Comments of the Florida Public Defender Association on In Re: Standard Jury

Instructions Capital Cases, No. SC17-583
The Florida Public Defender Association (FPDA) offers the following comments
regarding the following proposed jury instructions:
7.11 Preliminary Instructions In Penalty Proceedings Capital Cases
7.11(a) Final Instructions In Penalty Proceedings Capital Cases
3.12(e) Jury Verdict FormDeath Penalty
Please, note the following. First, the FPDA requests the opportunity to be heard at
oral argument regarding these proposed instructions. Second, for the purpose of
brevity, if comment is made regarding an idea, issue, and/or instruction in one area,
that comment applies to each occurrence of the issue throughout the proposed
instructions and the proposed verdict forms. Third, the FPDAs comments are
followed by specific proposals for modifications in Appendix 1. If the FPDA
proposes alternative language to an instruction, it will be noted with green
highlighting. If an objection or objections are posed to specific language, they will
~ 1 ~
FPDA Comments to Proposed Capital Jury Instructions, SC17583
EXHIBIT C
be noted with yellow highlighting. Fourth, the FPDA filed comments regarding the
proposed revisions to Standard Jury Instructions 7.11 and 7.11(a) as produced by the
Florida Supreme Court Committee on Standard Jury Instructions (the Committee)
that were published in The Florida Bar News on April 15, 2017. Those comments
and the introductory letter are attached to these comments as Appendix 2. Finally,
the FPDA and its members believe additional work and objections will likely be
necessary before a final set of jury instructions are complete, meet constitutional
muster, and provide the State of Florida with the best efforts of our legal community.
7.11 Preliminary Instructions In Penalty Proceedings Capital Cases
Waiving Credit for Time Served and/or Parole
The Courts proposed preliminary instruction comment directs judges that
For murders committed before May 25, 1994, the following

paragraph should be modified to comply with the statute in
effect at the time the crime was committed. If the jury
inquires whether the defendant will receive credit for time
served against a sentence of life without possibility of parole
for 25 years, the court should instruct that the defendant will
receive credit for all time served but that there is no
guarantee the defendant will be granted parole either upon
serving 25 years or subsequently. See Green v. State, 907
So. 2d 489, 496 (Fla. 2005).
~ 2 ~
Fla. Std. Jury Instr. (Crim.) 7.11 (proposed).
This Court knows that jurors consider credit for time served and parole issues during
penalty phase deliberations. See Armstong v. State, 73 So. 3d 155, 173 (Fla. 2011);
Gore v. State, 706 So.2d 1328, 1333 (Fla. 1997); Downs v. State, 572 So. 2d 895,
901 (Fla. 1990).
The law is well established that a defendant may waive his or her rights, Johnson v.
Zerbst, 304 U.S. 458, 464 (1938). This ability to waive rights has included but not
been limited to periodic consideration for parole and credit for time served. See Peri
v. State, 426 So.2d 1021, 1026 (Fla. 3d DCA 1983); Troutman v. State, 985 So.2d
1167 (Fla. 3d DCA 2008); Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005); Op.
Att'y Gen. Fla. 7829, at 3 (1978).
This comment to the trial judges and the subsequent jury instruction should address
those issues as well. That is to say, if a defendant has a case with a crime from prior
to May 25, 1994, and he or she makes a knowing and intelligent waiver of credit for
time served and/or the right to parole review, the jury should be instructed
appropriately. To do so otherwise would mislead the jurors and encourage the jurors
to recommend death based on unwarranted fear that a defendant might someday be
~ 3 ~
released, perhaps in the near future, which would be a violation of the 8th
Amendment to the U.S. Constitution and Art. I, 17, of the Florida Constitution.
The 8th Amendment requires heightened reliability in capital sentencing. See, e.g.,
Sumner v. Shuman, 483 U.S. 66, 72 (1987). The New Jersey Supreme Court
acknowledged and explained the obvious in Fortin, a jurors knowledge of whether a
life sentence does or does not include the possibility of parole can be crucial to the
decision to vote for life or death. State v. Fortin, 843 A. 2d 974, 1011 (NJ 2004).
However, the Florida Supreme Court in Bates v. State, 750 So.2d 6 (Fla. 1999), a 4-3
split opinion, concluded that a capital defendant whose crime was committed before
the May 25, 1994, effective date of the amendment making life imprisonment
without possibility of parole the alternative punishment to a death sentence for the
crime of first-degree murder may waive his right to parole eligibility. But the State
of Florida has negotiated for a waiver of the right to parole in exchange for a life
without parole sentence. Carlos Bello was sentenced to death for a first-degree
murder committed in 1981, but on appeal the sentence was reversed for a new
penalty phase. Bello v. State, 547 So.2d 914 (Fla. 1989).
Additionally, the Court should permit such waivers and instruct the jurors
accordingly because [a] mitigating circumstance can be defined broadly as any
~ 4 ~
aspect of a defendant's character or record and any of the circumstances of the
offense that reasonably may serve as a basis for imposing a sentence less than
death. Campbell v. State, 571 So.2d 415 (Fla. 1990) (quoting Lockett v. Ohio, 438
U.S 586, 604 (1978)). [W]hether a particular circumstance is truly mitigating in
nature is a question of law and subject to de novo review. Douglas v. State, 878
So.2d 1246, 1258-1259 (Fla. 2004). That a defendant wants a life sentence without
the possibility of parole is truly mitigating.
The Jurys Decisions Regarding Aggravating Factors, Weighing, & Life or

Death
In pertinent part, jury instruction 7.11 reads
You are instructed that this evidence is presented in order

for you to determine, as you will be instructed, (1) whether
each aggravating factor is proven beyond a reasonable
doubt; (2) whether one or more aggravating factors exist
beyond a reasonable doubt; (3) whether the aggravating
factors found to exist beyond a reasonable doubt are
sufficient to justify the imposition of the death penalty;
(5) whether the aggravating factors outweigh the mitigating
circumstances; and (6) whether the defendant should be
sentenced to life imprisonment without the possibility of
parole or death.
Fla. Std. Jury Instr. (Crim.) 7.11 (proposed). This instruction fails to inform the
jurors that steps (1), (2), (3), (5), and (6) must be found unanimously. Further this
~ 5 ~
instruction fails to adequately inform the jury that steps (5) and (6) must be meet the
beyond a reasonable doubt burden of proof.1
This Courts recent ruling in Hurst v. State, 210 So. 3d 40 (Fla. 2016), made clear
that each of the steps requires unanimous findings by the jurors. [T]he Supreme
Courts decision in Hurst v. Florida requires that all the critical findings necessary
before the trial court may consider imposing a sentence of death must be found
unanimously by the jury. Hurst v. State, 210 So.3d 40, 44 (Fla. 2016). On the same
day that Hurst v. State, was issued, this Court held in Perry v. State, this Court held
the United States Supreme Courts decision in Hurst v.

Florida and Floridas right to a jury trial provided under
article I, section 22 of the Florida Constitution require the
jurys findings of the aggravating factors, that there are
sufficient aggravating factors to impose death, that those
aggravating factors outweigh the mitigation, and that death
is the appropriate sentence are all required to be found
unanimously by the jury for the defendant to be sentenced
to deathWe also held that, based on Floridas
requirement for unanimity in jury verdicts and on the
Eighth Amendment to the United States Constitution, a
jurys ultimate recommendation of the death sentence must
be unanimous.
Perry v. State, 210 So.3d 630, 639 (Fla. 2016) (emphasis supplied) (internal citations
omitted).
1
This also occurs in the proposed Fla. Std. Jury Verdict Form (Crim.) 3.12(e).
~ 6 ~
This Courts ruling in Hurst v. State, emphasized the importance of the connection
between unanimity and the reasonable doubt burden of proof. [T]he jury in a
capital case must unanimously and find all the aggravating factors that were proven
beyond a reasonable doubt, unanimously find that the aggravating factors are
sufficient to impose death, unanimously find that the aggravating factors outweigh
the mitigating circumstances, and unanimously recommend a sentence of death.
Hurst v. State, at 57. Shortly after that the Court referenced the Fifth Circuit Court of
Appeals comparison of the unanimity requirement to the reasonable doubt standard
as impressing on the trier of fact the necessity of reaching a subjective state of
certitude on the facts in issue. Hurst v. State, at 58 quoting United States v. Gipson,
553 F.2d 453, 457 (5th Cir.1977).
As has been stated over and over by this Court and others, death is different. Without
ensuring the certitude that unanimity and proof beyond a reasonable doubt provide,
this Court risks a slide back into pre-Furman v. Georgia, 408 U.S. 238 (1972),
arbitrariness.
The Jurys Decisions Regarding Mitigation
In pertinent part, jury instruction 7.11 reads
You are instructed that this evidence is presented in order

for you to determine, as you will be instructed, (4) whether
~ 7 ~
mitigating circumstances are proven by the greater weight
of the evidence;
Fla. Std. Jury Instr. (Crim.) 7.11 (proposed). The FPDAs objections and proposals
with regard to this portion of the instruction will be addressed below in the final
instruction section.
Diminishing Each Jurors Sense of Responsibility
Under the currently proposed preliminary jury instructions the jury would be
instructed twice that that their determinations would amount to mere
recommendations.
First, in the definition of aggravating factors, jurors would be instructed that An
aggravating factor is a standard to guide the jury in making the choice between
recommending life imprisonment without the possibility of parole or death. Fla.
Std. Jury Instr. (Crim.) 7.11 (proposed) (emphasis added). This is not the law. This
is a misstatement of the law. In fact, as this Court noted in Perry v. State, the law
expressly eliminates the ability of the court to override a jurys recommendation for a
life sentence with the imposition of a sentence of death, while expressly allowing the
court to impose a life sentence even where the jury recommends death. Perry at
638. And Fla. Stat. 921.141(3)(a)(1) clearly states that a trial judge must impose a
sentence of life imprisonment without the possibility of parole, if the jury so votes.
~ 8 ~
Second, in the introduction to mitigating circumstances jurors would be instructed
that: Should you find sufficient aggravating factors do exist to justify
recommending the imposition of the death penalty, it will then be your duty to
determine whether the aggravating factors that you unanimously find to have been
proven beyond a reasonable doubt outweigh the mitigating circumstances that you
find to have been established. Fla. Std. Jury Instr. (Crim.) 7.11 (proposed)
(emphasis added). Despite the statutes use of the word, this Court should not
encourage any undertaking that would tend to reduce or eliminate the jurys sense of
responsibility for determining a sentence of death because that would be inconsistent
with Eighth Amendments heightened need for reliability as the U.S. Supreme Court
held in Caldwell v. Mississippi, 472 U.S. 320 (1985).
In at least one of the capital death penalty trials that occurred since this Court issued
the proposed jury instructions, a prosecutor harangued a jury repeatedly about their
efforts being merely advisory since the judge would still have the final say in whether
or not the defendant would live or die. See State v. Smiley, 2015CF004903A000XX /
2015CF005388A000XX (Fla. 10th Cir. Ct. April 28, 2017) (account based upon trial
counsels memories with a transcript request pending).
~ 9 ~
The Court makes use of other decision words or their variants repeatedly
throughout the instructions and verdict form: determine 18 times; verdict 14
times; vote 7 times.
The fix for these issues is simple. Eliminate the words recommending from each
portion of the instructions. They invite error and do not add any benefit.
7.11(A) Final Instructions In Penalty Proceedings Capital Cases
& 3.12(E) Jury Verdict FormDeath Penalty
Prior Violent Felony Aggravating Factor
The prior violent felony aggravating factor jury instruction violates the 6th, 8th, and
14th Amendments to the U.S. Constitution as well as the corresponding provisions in
the Florida Constitution in Art. I 9, 16, 14, and 22. On its face and in its
application this aggravating factor eliminates jury fact finding, effectively directs the
jury to find the existence of an aggravator automatically, and deprives defendants of
those safeguards that would prevent the arbitrary taking of life.
~ 10 ~
The aggravating factor is found in 921.141(6)(a), Fla. Stat. and reads as follows:
The defendant was previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person. The jury instruction for that
aggravating factor reads as follows


Fla. Std. Jury Instr. (Crim.) 7.11 (current and proposed). (Emphasis supplied). By
instructing a jury that a defendants prior and/or contemporaneous conviction(s) for a
crime is/are capital and/or involve the use or threat of violence, the trial court
effectively directs the jury to find the existence of an aggravator and make the
defendant eligible for the death penalty.
The subsections of this instruction, as highlighted above, violate the prohibitions
regarding an automatic death sentence as announced in Woodson v. North Carolina,
428 U.S. 280 (1976).
~ 11 ~
[O]ne of the most significant developments in our society's
treatment of capital punishment has been the rejection of
the common-law practice of inexorably imposing a death
sentence upon every person convicted of a specified
offense.
Woodson, 428 U.S. 280, 301.
The Eighth Amendment draws its meaning from the evolving standards of decency
that mark the progress of a maturing society, as noted in Trop v. Dulles, 356 U.S.
86, 101 (1958). The use of an aggravating factor that automatically, mechanically
causes a defendant to face eligibility for the death penalty, does not represent an
evolution of decency but instead a retrograde of that notion.
The jury instructions as written for the prior violent felony aggravating factor
found in 921.141(6)(a), Fla. Stat., are, on their face, a violation of the 8th
Amendment to the U.S. Constitution, Art. I, 14 of the Florida Constitution, and our
countys evolving standards of decency.
There is also a 6th Amendment problem with this instruction because it takes away
the jurys fact finding power on the question of whether the crime was in fact one
involving the use or threat of violence. The prior instruction had a note indicating
~ 12 ~
that this was permitted because the issue was simply a matter of law. As the Florida
Supreme Court has noted
[W]hether a crime constitutes a prior violent felony is

determined by the surrounding facts and circumstances of
the prior crime. See Rose v. State, 787 So. 2d 786, 800
(Fla. 2001). The existence of violence as an inherent
element is not the test.
Williams v. State, 967 So. 2d 735, 762 (Fla. 2007), as revised on denial of reh'g (Oct.
18, 2007). If there is a determination to be made about the facts and circumstances,
then it is fact finding. This is and should remain in the province of the jury.
Mitigation
In Florida, the list of aggravating factors the State may choose from are limited to
those provided in 921.141(6), Fla. Stat. Florida law does not permit the use of
nonstatutory aggravating factors. See Knight v. State, 746 So.2d 423, 440, footnote
10; Kormondy v. State, 703 So.2d 454, 462-463, (Fla. 1997).
The burden of proving the existence of an aggravating factor beyond a reasonable
doubt falls on the shoulders of the State as provided in 921.141(2)(a), Fla. Stat.
That section provides, in pertinent part, that the jury shall determine if the state
~ 13 ~
has proven, beyond a reasonable doubt, the existence of at least one aggravating
factor
The current instructions and verdict form in the Courts proposal contain a list of
aggravating factors, a burden of proving those aggravating factors, and note that the
assignment of that burden of proving the aggravating factors is on the State. See
generally Fla. Std. Jury Instr. (Crim.) 7.11 (current and proposed). While the current
and proposed instructions regarding aggravating factors have clear authority from the
Florida statutes, the proposed instructions on the limiting definition for mitigation,
the burden of proof, and placing the burden of proof on the defendant do not.
The list of mitigating circumstances that a jury may consider are provided in
921.141(7), Fla. Stat. That list includes what has come to be known as a catchall
instruction in 921.141(7)(h), Fla. Stat. In pertinent part, that subsection provides
for the consideration of any other mitigating factors in the defendants
background that would mitigate against imposition of the death penalty.
The notions of imposing a preponderance of evidence or greater weight burden
of proof on mitigation and of requiring a defendant to prove mitigation are statutory
and constitutional anathemas for the reasons listed below.
~ 14 ~
Limiting the Definition of & Creating a Burden of Proof for Mitigation
The use of a limiting definition for mitigating circumstances and the imposition of an
artificial burden of proof for mitigation is inappropriate for several reasons.
First, at no point anywhere in the statutes does Florida law provide for a burden of
proof of a mitigating circumstance. There is no statutory language that can be read
to have a plain meaning that there is such a burden. Nor is there statutory language
from which one could reasonably infer that such a burden exists.
The Courts creation of this burden of proof of a mitigating circumstance is
incongruous with the Courts limited role of interpreting law, as opposed to writing
it, and is a violation of Art II, 2 3, Fla. Const.
Second, these limits and hurdles will preclude the individualized sentencing required
by the Eighth Amendment to the U.S. Constitution. Recently the U.S. Supreme
Court noted that as a requirement of individualized sentencing, a jury must have
the opportunity to consider all evidence relevant to mitigation, and that a state statute
~ 15 ~
that permits a jury to consider any mitigating evidence comports with that
requirement. Kansas v. Marsh, 548 U.S. 163, 171 (2016).
The Courts proposal would limit evidence by inserting a burden of proof on the
consideration of mitigation by the jury. That is not necessary, because a trial judge
will have already considered whether or not the evidence is relevant. The FPDA
proposal is in accord with the broad standard for mitigation. See Tennard v. Dretke,
542 U.S. 274, 285 (2004) ( [V]irtually no limits are placed on the relevant
mitigating evidence a capital defendant may introduce concerning his own
circumstances (quoting Eddings, supra at 114, 102 S.Ct. 869). Limiting the
mitigating evidence by setting an artificial hurdle deprives jurors of relevant
mitigation. See Hitchcock v. Dugger, 481 U.S. 393, 394 (1987) (We have held that
in capital cases, the sentence may not refuse to consider or be precluded from
considering any relevant mitigating evidence.; citations omitted). See also Martin
v. State, 107 So.3d 281, 319 (Fla. 2012) (a sentencer may not refuse to consider,
as a matter of law, any relevant mitigating evidence; internal citations omitted).
~ 16 ~
Imposing a Burden of Proof for Mitigation
The Courts proposal includes a provision requiring the Defendant to prove
mitigation. That provision states, in pertinent part, as follows
The defendant does not need to prove mitigating

circumstances beyond a reasonable doubt. The defendant
need only prove a mitigating circumstance by the greater
weight of the evidence
Fla. Std. Jury Instr. (Crim.) 7.11 (proposed). (Emphasis supplied).
The Courts former instruction included no such provision. That instruction
provided the following
A mitigating circumstance need not be proved beyond a

reasonable doubt by the defendant. A mitigating
circumstance need only be proved by the greater weight of
the evidence.
Fla. Std. Jury Instr. (Crim.) 7.11 (former). One might argue that an inference could
be drawn from the former instruction that the burden was on the defendant.
However, there is no doubt from the Courts proposal that the defendant bears the
burden of proving up mitigating circumstances. Further, the consideration at this
point is on the Courts pending proposal.
proving the existence of a mitigating circumstance that falls upon the defendant. The
legislature crafted a burden of proof requirement for the State with regard to the
~ 17 ~
aggravating circumstances. The legislature did not create such a burden for the
defendant to prove mitigation.
Second, requiring a defendant to prove, not simply proffer, mitigation creates a
general presumption in favor of the death penalty that would violate the 8th
Third, the Courts proposal of placing the burden of proving mitigating
circumstances on the defendant is contrary to U.S. Supreme Court case law on this
topic. Mitigation may arise from the circumstances of the case rather than the
limited list provided by the Court. For example, in Lockett v. Ohio, 438 U.S. 586,
590 (1978), the prosecutors evidence showed that Lockett never intended to kill
anyone nor that anyone be killed during the robbery of a shop.
Consideration of relevant mitigation is unlimited and does not require a particular
burden of proof under the Eighth Amendment since the trial court would have
already limited the mitigation to evidence that is relevant, the Courts proposal is
misleading and inappropriate. See Lockett, 438 U.S. 604-605. A sentencer may
not refuse to consider or be precluded from considering any relevant mitigating
~ 18 ~
evidence. Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings v.
Oklahoma, 455 U.S. 104, 114 (1982)).
Fourth, the Courts proposed instructions include a provision that would mislead
jurors about the weighing process. It states, in pertinent part, You must weigh the
following: b. Whether the aggravating factor[s] outweigh[s] any mitigating
circumstance[s] found to exist Fla. Std. Jury Instr. (Crim.) 7.11 (proposed)
(emphasis supplied). The language is misleading because a juror might reasonably
conclude that consideration could be for any one mitigating circumstance rather than
all of those found to exist. And, as this Court recently held, It has always been that
death can be imposed only when the aggravating factors outweigh the mitigating
circumstances.., Perry at 637, which effectively implies all of the mitigation and
not merely some of it.
Finally, the Courts proposed verdict form will clearly have a limiting impact on the
consideration of mitigation. The jury will effectively be instructed not to consider
evidence of nonstatutory mitigating circumstances in violation of Hitchcock v.
Dugger, 481 U.S. 393, 398-399 (1987) and the 8th Amendment of the U.S.
Constitution as well as Art. I, 17 of the Florida Constitution.
~ 19 ~
Sympathy
With regard to Fla. Std. Jury Instr. (Crim.) 3.10(8) as used in Fla. Std. Jury Instr.
(Crim.) 7.11(a), the FPDA believes the word sympathy should be removed, if
requested by the defense, because it may reasonably be equated with mercy, which is
a permissible consideration for jurors in a penalty phase deciding whether to take the
life of another human being.
Victim Impact
The victim impact evidence instruction should be, as recommended by the
Committee proposal, given at the time victim impact evidence is admitted, if
requested. This would be akin to a Williams Rule instruction being given at the time
such evidence is offered during a trial.
Juror Research and Investigation
Jurors are instructed not to conduct research or any sort of investigation at the
beginning of a trial. Fla. Std. Jury Instr. (Crim.) 1.1 (Introduction). The Court has
seen fit to reinstruct the jurors with admonitions and law that they would have
received at the end of the first phase possibly a day or two earlier. The instruction
prohibiting research and investigation given, presumably, on the first day of voir dire
~ 20 ~
and possibly weeks earlier might be forgotten by some jurors. Re-instructing the
jurors with this reminder makes good sense and might help avoid needless litigation.
Foreperson Signature Block
The Forepersons signature block should also include the Forepersons juror
identification number to aid in clarity.
~ 21 ~
Appendix 1
FPDA proposed additions
FPDA proposed deletions
~ 22 ~
CAPITAL CASES
921.141, Fla. Stat.
This instruction is to be given immediately before the opening statements in the

penalty phase of a death penalty case.
Give 1a at the beginning of penalty proceedings before a jury that did not try
the issue of guilt. Give bracketed language if the case has been remanded for a new
penalty proceeding. See Hitchcock v. State, 673 So. 2d 859 (Fla. 1996). In addition,
give the jury other appropriate general instructions.
1. a. Members of the jury, the defendant has been found guilty of
____ count[s] of Murder in the First Degree in a previous
proceeding. The only issue before you is to determine the
appropriate sentence.
Give 1b at the beginning of penalty proceedings before the jury that found the
defendant guilty.
b. Members of the jury, you have found the defendant guilty of
____ count[s] of Murder in the First Degree.
For murders committed before May 25, 1994, the following paragraph should
be modified to comply with the statute in effect at the time the crime was committed.
If the jury inquires whether the defendant will receive credit for time served against
a sentence of life without possibility of parole for 25 years, the court should instruct
that the defendant will receive credit for all time served but that there is no
guarantee the defendant will be granted parole either upon serving 25 years or
subsequently. See Green v. State, 907 So. 2d 489, 496 (Fla. 2005). If the defendant
knowingly and intelligently waives the right to parole and/or credit for all time
served, the jury shall be instructed as such, if requested.
2. The punishment for this crime is either life imprisonment without

the possibility of parole or death.
Give this instruction in all cases.

you what evidence they believe will be presented during the penalty phase of
this trial. What the lawyers say during opening statements is not evidence, and
~ 23 ~
you are not to consider it as such. After the attorneys have had the opportunity
to present their opening statements, the State and the defendant may present
evidence relative to the nature of the crime and the defendants character,
background, or life. You are instructed that this evidence is presented in order
for you to determine, as you will be instructed, (1) whether each aggravating
factor is proven beyond a reasonable doubt and found by the jury unanimously;
(2) whether one or more aggravating factors exist beyond a reasonable doubt
and is/are found by the jury unanimously; (3) whether the aggravating factors
found to exist beyond a reasonable doubt are sufficient to justify the imposition
of the death penalty and found by the jury unanimously; (4) whether mitigating
circumstances are present proven by the greater weight of the evidence; (5)
whether the aggravating factors outweigh the mitigating circumstances beyond
a reasonable doubt and determined by the jury unanimously; and (6) whether
you determine beyond a reasonable doubt and unanimously that the defendant
should be sentenced to life imprisonment without the possibility of parole or
death. At the conclusion of the evidence and after argument of counsel, you will
be instructed on the law that will guide your deliberations.
Aggravating Factors:
An aggravating factor is a standard to guide the jury in making the choice
between recommending life imprisonment without the possibility of parole or
death. It is a statutorily enumerated circumstance that increases the gravity of a
crime or the harm to a victim.
You must unanimously agree that each aggravating factor was proven
beyond a reasonable doubt before it may be considered by you in arriving at
your final verdict. In order to consider the death penalty as a possible penalty,
you must determine that at least one aggravating factor has been proven beyond
a reasonable doubt.
The State has the burden to prove each aggravating factor beyond a
reasonable doubt. A reasonable doubt is not a mere possible doubt, a
speculative, imaginary, or forced doubt. Such a doubt must not influence you to
disregard an aggravating factor if you have an abiding conviction that it exists.
On the other hand, if, after carefully considering, comparing, and weighing all
the evidence, you do not have an abiding conviction that the aggravating factor
exists, or if, having a conviction, it is one which is not stable but one which
wavers and vacillates, then the aggravating factor has not been proved beyond
every reasonable doubt and you must not consider it in providing your verdict
on the appropriate sentence to the court.
~ 24 ~
A reasonable doubt as to the existence of an aggravating factor may arise
from the evidence, conflicts in the evidence, or the lack of evidence. If you have
a reasonable doubt as to the existence of an aggravating factor, you must find
that it does not exist. However, if you have no reasonable doubt, you should
find that the aggravating factor does exist.
Before moving on to the mitigating circumstances, you must determine

that the aggravating factors are sufficient to impose a sentence of death. If you
do not unanimously agree that the aggravating factors are sufficient to impose
death beyond a reasonable doubt, do not move on to consider the mitigating
circumstances.
Mitigating Circumstances:
Should you find sufficient aggravating factors do exist to justify
recommending the imposition of the death penalty, it will then be your duty to
determine whether the aggravating factors that you unanimously find to have
been proven beyond a reasonable doubt outweigh the mitigating circumstances
that you find to have been established. Unlike aggravating factors, you do not
need to unanimously agree that a mitigating circumstance has been established.
A mitigating circumstance is not limited to the facts surrounding the

crime. It can be anything in the life of the defendant which that might indicate
that the death penalty is not appropriate for the defendant. In other words, a
background, or life, or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case. A
mitigating circumstance is evidence of any reason a juror believes may tend to
support a sentence of life in prison without the possibility of parole.
A mitigating circumstance need not be proven beyond a reasonable

doubt by the defendant. Unlike aggravating factors, which must be found
unanimously and beyond a reasonable doubt, mitigating circumstances do not
require unanimous agreement. A mitigating circumstance may be found by one
or more individual jurors. The defendant need only prove a mitigating
circumstance by the greater weight of the evidence, which means evidence that
more likely than not tends to prove the existence of the mitigating circumstance.
If you determine by the greater weight of the evidence that a mitigating
circumstance exists, you must consider it proven. Additionally, the jury need
not be unanimous regarding a finding that a mitigating circumstance exists.
~ 25 ~
Each juror should make his or her own decision about whether a mitigating
circumstance exists.
There are no limits to the mitigating circumstances you may consider. A

mitigating circumstance need only be proven by the greater weight of the
evidence, which means evidence that more likely than not tends to prove the
existence of a mitigating circumstance. If you determine by the greater weight
of the evidence that a mitigating circumstance exists, you may consider it
established and And you should give that evidence such weight as you
determine it should receive in reaching your conclusion as to the sentence to be
imposed.
Comment
1989 [543 So. 2d 1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639
So. 2d 602], 1995 [665 So. 2d 212], 1996 [678 So. 2d 1224], 1997 [690 So. 2d
1263], 1998 [723 So. 2d 123], 2009 [22 So. 3d 17], 2014 [146 So. 3d 1110], and
2017.
~ 26 ~
7.11(a) FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS CAPITAL
CASES
921.141, Fla. Stat.
This instruction should be given after the closing arguments in the penalty
phase of a death penalty trial.
Members of the jury, you have heard all the evidence and the argument of
counsel. It is now your duty to make a decision as to the appropriate sentence
that should be imposed upon the defendant for the crime of First Degree
Murder. There are two possible punishments: (1) life imprisonment without the
possibility of parole, or (2) death.
In making your decision, you must first unanimously determine whether

the aggravating factor[s] alleged by the State [has] [have] been proven beyond a
reasonable doubt. An aggravating factor is a circumstance that increases the
gravity of a crime or the harm to a victim. No facts other than proven
aggravating factors may be considered in support of a death sentence.

Give only those aggravating factors noticed by the State which are supported
by the evidence.
sentence of imprisonment] [on community control] [on felony probation].



persons.
~ 27 ~
[engaged] [an accomplice] in [the commission of] [an attempt to commit]
[flight after committing or attempting to commit]
any
[robbery].
[sexual battery].
[abuse of an elderly person or disabled adult resulting in great bodily
harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device or
bomb].

custody.

lawful exercise of any governmental function or the enforcement of laws.


atrocious, or cruel is one accompanied by additional acts that show
~ 28 ~
that the crime was conscienceless or pitiless and was unnecessarily
torturous to (decedent).
9. The First Degree Murder was committed in a cold, calculated, and

premeditated manner, without any pretense of moral or legal
justification.
reflection.
Calculated means having a careful plan or prearranged design to

commit murder.

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.
However, in order for this aggravating factor to apply, a heightened

level of premeditation, demonstrated by a substantial period of
reflection, is required.

justification or excuse that, though insufficient to reduce the degree
of murder, nevertheless rebuts the otherwise cold, calculated, or
premeditated nature of the murder.

11. (Decedent) was an elected or appointed public official engaged in the

performance of [his] [her] official duties, if the motive for the First Degree
Murder was related, in whole or in part, to (decedents) official capacity.
~ 29 ~

14. The First Degree Murder was committed by a criminal street gang
member.
15. The First Degree Murder was committed by a person designated as

a sexual predator or a person previously designated as a sexual predator
who had the sexual predator designation removed.

Florida judge],
and
Give in all cases.

As explained before the presentation of evidence, the State has the burden
to prove an aggravating factor beyond a reasonable doubt. A reasonable doubt
is not a mere possible doubt, a speculative, imaginary, or forced doubt. Such a
doubt must not influence you to disregard an aggravating factor if you have an
abiding conviction that it exists. On the other hand, if, after carefully
considering, comparing, and weighing all the evidence, you do not have an
abiding conviction that the aggravating factor exists, or if, having a conviction,
it is one which is not stable but one which waivers and vacillates, then the
aggravating factor has not been proved beyond every reasonable doubt and you
must not consider it in providing a verdict.
~ 30 ~
A reasonable doubt as to the existence of an aggravating factor may arise
from the evidence, a conflict in the evidence, or the lack of evidence. If you have
a reasonable doubt as to the existence of an aggravating factor, you must find
that it does not exist. However, if you have no reasonable doubt, you should find
the aggravating factor does exist.
A finding that an aggravating factor exists must be unanimous, that is, all
of you must agree that each presented aggravating factor exists. You will be
provided a form to make this finding [as to each alleged aggravating factor] and
you should indicate whether or not you find [the] [each] aggravating factor has
been proven beyond a reasonable doubt.
If you do not unanimously find that at least one aggravating factor was
proven by the State, then the defendant is not eligible for the death penalty, and
your verdict must be for a sentence of life imprisonment without the possibility
for parole. At such point, your deliberations are complete.
If, however, you unanimously find that [one or more] [the] aggravating
factor[s] [has] [have] been proven beyond a reasonable doubt, then the
defendant is eligible for the death penalty, and you must make additional
findings to determine whether the appropriate sentence to be imposed is life
imprisonment without the possibility of parole or death.

If you do unanimously find the existence of at least one aggravating factor and
that the aggravating factor(s) [is] [are] sufficient to impose a sentence of death
beyond a reasonable doubt, the next step in the process is for you to determine
whether any mitigating circumstances exist. A mitigating circumstance can be
anything in the life of the defendant which that might indicate that the death
penalty is not appropriate. It is not limited to the facts surrounding the crime. A
background, or life, or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case. A
mitigating circumstance is evidence of any reason a juror believes may tend to
support a sentence of life in prison without the possibility of parole.
Unlike aggravating factors, which must be found unanimously and

beyond a reasonable doubt, mitigating circumstances do not require unanimous
agreement. A mitigating circumstance may be found by one or more individual
jurors.
~ 31 ~
Among the mitigating circumstances you may consider but are not limited
to are:
presented.
If the defendant offers evidence on this circumstance and the State, in rebuttal,
offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating factor to be
conviction of that crime may be considered by the jury in determining whether
the defendant has a significant history of prior criminal activity.


to the act.

committed by another person and [his] [her] participation was relatively
minor.


[her] conduct or to conform [his] [her] conduct to the requirements of law
was substantially impaired.
The judge should also instruct on any additional mitigating circumstances as

requested.
background, or life or the circumstances of the offense that would
~ 32 ~
It is the defendants burden to prove that mitigating circumstances exist.
As explained before these proceedings, the defendant need only establish a
mitigating circumstance by the greater weight of the evidence, which means
evidence that more likely than not tends to establish the existence of a mitigating
circumstance. If you determine by the greater weight of the evidence that a
mitigating circumstance exists, you must consider it established and give that
evidence such weight as you determine it should receive in reaching your verdict
about the appropriate sentence to be imposed. Any juror persuaded as to the
existence of a mitigating circumstance must consider it in this case. Further, any
juror may consider a mitigating circumstance found by another juror, even if he
or she did not find that factor to be mitigating.
Your decision regarding the appropriate sentence should be based upon

proven aggravating factors and established mitigating circumstances that have
been presented to you during these proceedings. You will now engage in a
weighing process.
Merging aggravating factors. Give the following paragraph if applicable. For

example, the aggravating circumstances that 1) the murder was committed during
the course of a robbery and 2) the murder was committed for financial gain, relate to
the same aspect of the offense and may be considered as only a single aggravating
circumstance. Castro v. State, 597 So. 2d 259 (Fla. 1992).
considered to be a single aspect of the offense. If you unanimously determine
that the aggravating factors of (insert aggravating factor) and (insert aggravating
factor) have both been proven beyond a reasonable doubt, your findings should
indicate that both aggravating factors exist, but you must consider them as only
one aggravating factor during the weighing process that I am about to explain
to you.

b. Whether the aggravating factor[s] outweigh[s] any all mitigating
~ 33 ~
The process of weighing aggravating factors and mitigating circumstances
is not a mechanical or mathematical process. In other words, you should not
merely total the number of aggravating factors and compare that number to the
total number of mitigating circumstances. The law contemplates that different
factors or circumstances may be given different weight or values by different
jurors. Therefore, in your decision-making process, each individual juror must
decide what weight is to be given to a particular factor or circumstance.
Regardless of the results of each jurors individual weighing processeven if
you find that the sufficient aggravators outweigh the mitigatorsthe law
neither compels nor requires you to determine that the defendant should be
sentenced to death.
No aggravating factor may be considered unless the State proves it

beyond a reasonable doubt. Further, if one or more jurors conclude that an
aggravating factor was not proved beyond reasonable doubt, then no juror may
consider that aggravating factors.
Once each juror has weighed the proven factors, he or she must
determine the appropriate punishment for the defendant. The jurys decision
regarding the appropriate sentence must be unanimous if death is to be
imposed. To repeat what I have said, if your verdict is that the defendant should
be sentenced to death, your finding that each aggravating factor exists beyond a
reasonable doubt must be unanimous, your finding that the aggravating factors
are sufficient to impose death beyond a reasonable doubt must be unanimous,
and your finding that the aggravating factor(s) found to exist outweigh the
established mitigating circumstances beyond a reasonable doubt must be
unanimous, and your decision if to impose a sentence of death must be
unanimous also.
You will be provided a form to reflect your findings and decision

regarding the appropriate sentence. If your vote on the appropriate sentence is
less than unanimous, the defendant will be sentenced to life in prison without
the possibility of parole.
The fact that the jury can make its decision on a single ballot should not
influence you to act hastily or without due regard to the gravity of these
proceedings. Before you vote, you should carefully consider and weigh the
evidence, realizing that a human life is at stake, and bring your best judgment
to bear in reaching your verdict.
~ 34 ~
When considering aggravating factors and mitigating circumstances, it is
up to you to decide which evidence is reliable. You should use your common
sense in deciding which is the best evidence and which evidence should not be
relied upon in making your decision as to what sentence should be imposed. You
may find some of the evidence not reliable, or less reliable than other evidence.
1. Did the witness seem to have an opportunity to see and know the things
about which the witness testified?

4. Did the witness have some interest in how the case should be decided?
5. Did the witnesss testimony agree with the other testimony and other
evidence in the case?
Give as applicable.
7. Had any pressure or threat been used against the witness that affected
the truth of the witnesss testimony?



[truthfulness]?
~ 35 ~
The fact that a witness is employed in law enforcement does not mean that
[his] [her] testimony deserves more or less consideration than that of any other
witness.
Expert witnesses.
only reliable when given on a subject about which you believe that person to be
an expert. Like other witnesses, you may believe or disbelieve all or any part of
an experts testimony.

commit a crime] [has been promised immunity from prosecution] [hopes to gain
more favorable treatment in his or her own case] may have a reason to make a
false statement in order to strike a good bargain with the State. This is
particularly true when there is no other evidence tending to agree with what the
witness says about the defendant. So, while a witness of that kind may be
entirely truthful when testifying, you should consider [his] [her] testimony with
more caution than the testimony of other witnesses.
Child witness.


It is entirely proper for a lawyer to talk to a witness about what testimony
the witness would give if called to the courtroom. The witness should not be
discredited by talking to a lawyer about [his] [her] testimony.
Give in all cases.
~ 36 ~
witness. A juror may believe or disbelieve all or any part of the evidence or the
testimony of any witness.

The defendant exercised a fundamental right by choosing not to be a
witness in this case. You must not be influenced in any way by [his] [her]
decision. No juror should ever be concerned that the defendant did or did not
take the witness stand to give testimony in the case.

These are some general rules that apply to your discussions. You must
follow these rules in order to make a lawful decision.
1. You must follow the law as it is set out in these instructions. If you
fail to follow the law, your decisions will be a miscarriage of justice. There
is no reason for failing to follow the law in this case. All of us are
depending upon you to make wise and legal decisions in this matter.
2. Your decisions must be based only upon the evidence that you have
heard from the testimony of the witnesses, [have seen in the form of the
exhibits in evidence,] and these instructions.
3. Your decisions must not be based upon the fact that you feel sorry
for anyone or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them
should not influence your decisions.
wrote that [was] [were] not asked by the Court, and must not hold that
6. Your decisions should not be influenced by feelings of prejudice,

racial bias, or ethnic bias., or sympathy. Your decisions must be based on
the evidence and the law contained in these
instructions.
~ 37 ~
Victim impact evidence. Give if applicable. Also, give at the time victim impact
evidence is admitted, if requested.
You have heard evidence about the impact of this murder on the [family]
[friends] [community] of (decedent). This evidence was presented to show the
victims uniqueness as an individual and the resultant loss by (decedents) death.
However, you may not consider this evidence as an aggravating factor. Your
decisions must be based on the aggravating factor[s], the mitigating
circumstance[s], and the weighing process upon which you have been
instructed.

In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. When you have reached decisions in conformity with these
instructions, the appropriate form[s] should be signed and dated by your
foreperson.
You must not do any research or look up words, names, [maps], or

anything else that may have anything to do with this case. This includes reading
newspapers, watching television or using a computer, cell phone, the Internet,
any electronic device, or any other means at all, to get information related to
this case or the people and places involved in this case. This applies whether you
are in the courthouse, at home, or anywhere else.
During deliberations, jurors must communicate about the case only with
one another and only when all jurors are present in the jury room. You are not
to communicate with any person outside the jury about this case, and you must
not talk about this case in person or through the telephone, writing, or
electronic communication, such as a blog, Twitter, e-mail, text message, or any
other means.
Give if judge has allowed jurors to keep their electronic devices during the
penalty phase.
Many of you may have cell phones, tablets, laptops, or other electronic
devices here in the courtroom. The rules do not allow you to bring your phones
or any of those types of electronic devices into the jury room. Kindly leave those
devices on your seats where they will be guarded by the [court deputy] [bailiff]
while you deliberate.
Do not contact anyone to assist you during deliberations. These

communications rules apply until I discharge you at the end of the case. If you
~ 38 ~
become aware of any violation of these instructions or any other instruction I
have given in this case, you must tell me by giving a note to the [court deputy]
[bailiff].
Give if applicable.
During this trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you in
your deliberations.
a. The[se] exhibit[s] will be sent into the jury room with you
when you begin to deliberate.
b. If you wish to see an[y] exhibit[s], please request that in

writing.
I cannot participate in your deliberations in any way. Please disregard

anything I may have said or done that made you think I preferred one decision
over another. If you need to communicate with me, send a note through the
[court deputy] [bailiff], signed by the foreperson. If you have questions, I will
talk with the attorneys before I answer, so it may take some time. You may
continue your deliberations while you wait for my answer. I will answer any
questions, if I can, in writing or orally here in open court.
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions. There are no other laws that apply to this case.
Even if you do not like the laws that must be applied, you must use them. For
more than two centuries we have lived by the constitution and the law. No juror
has the right to violate rules we all share.
Comment
~ 39 ~
Members of the jury, we are going to ask each of you individually about
the verdict[s] that you have just heard. The question[s] pertain to whether the
verdict[s], as read by the clerk, [was] [were] correctly stated.
The following question is to be asked of each juror if the verdict is for the
death penalty:
Do you, (name of juror))] [juror number (number of juror)), agree that each
of the findings in the verdict form is yours?
The following question is to be asked of each juror if the verdict is for a life
sentence:
Do you, (name of juror))] [juror number (number of juror)), agree that at
least one member of the jury voted for a sentence of life imprisonment without
the possibility of parole?
Comment
~ 40 ~
We the jury unanimously find that the State has established beyond a
reasonable doubt the existence of (aggravating factor).
YES _________
NO _________
If you answer YES to at least one of the aggravating factors listed, please
proceed to Section B. If you answered NO to every aggravating factor listed, do
not proceed to Section B; (Defendant) is not eligible for the death sentence and
will be sentenced to life in prison without the possibility of parole.
Reviewing the aggravating factors that we unanimously found to be

established beyond a reasonable doubt (Section A), we the jury
unanimously find that the aggravating factors are sufficient to warrant a
possible sentence of death.
YES _________
NO _________
If you answer YES to Section B, please proceed to Section C. If you answer NO

to Section B, do not proceed to Section C; (Defendant) will be sentenced to life in
prison without the possibility of parole.
We the jury find that (statutory mitigating circumstance) was

established by the greater weight of the evidence.
YES _________
NO _________
~ 41 ~
If you answered YES above, please provide the jury vote as to the
existence of (statutory mitigating circumstance).
VOTE OF ____ TO ____.
We the jury unanimously find that the aggravating factors that were
proven beyond a reasonable doubt (Section A) outweigh the mitigating
circumstances established (Section C above) as to Count ___.
YES _________
NO _________
If you answered YES to Section D, please proceed to Section E. If you answered

NO to Section D, do not proceed; (Defendant) will be sentenced to life in prison
Having unanimously found that at least one aggravating factor has been
established beyond a reasonable doubt (Section A), that the aggravating
factors are sufficient to warrant a sentence of death (Section B), and the
aggravating factors outweigh the mitigating circumstances (Section D),
we the jury unanimously find that (Defendant) should be sentenced to
death.
YES __________
NO __________
If your vote to impose death is less than unanimous, the trial court shall impose
a sentence of life without the possibility of parole.
___________________________________
(Signature of foreperson) / Juror #
~ 42 ~
Appendix 2
~ 43 ~
OFFICE OF THE PUBLIC DEFENDER REX DIMMIG
POLK COUNTY COURTHOUSE PUBLIC DEFENDER
255 N. BROADWAY 3RD FLOOR TENTH JUDICIAL CIRCUIT
POST OFFICE BOX 9000-PD
BARTOW, FLORIDA 33831 PETER MILLS
PHONE: 863/534-4200 ASSISTANT PUBLIC DEFENDER
EMAIL: PD10EMAIL@PD10.STATE.FL.US TRIAL DIVISION DIRECTOR
10th Judicial Circuit
May 12, 2017

Standard Jury Instructions Committee in Criminal Cases
C/O Bart Schneider, General Counsels Office
Office of the State Courts Administrator
500 S. Duval Street
Tallahassee, FL 32399-1900
RE: Comments of the FPDA on proposed revisions to Standard Jury Instructions 7.11, 7.11(a), and
7.12
Dear Mr. Schneider,
Please find attached to this letter the comments of the Florida Public Defender Association on the
proposed revisions to Standard Jury Instructions 7.11, 7.11(a), and 7.12.
The Florida Public Defender Association (FPDA) greatly appreciates the work of the Florida
Supreme Court Committee on Standard Jury Instructions (the Committee) with regard to the work on the
capital jury instructions that were published in The Florida Bar News on April 15, 2017. While the FPDA
has objections and proposals regarding the Committees proposed capital jury instructions, the judges,
prosecutors, and members of the defense bar researched, debated, and endeavored in an effort that resulted
in a respectable final product. The Committees final product significantly comports with Florida and U.S.
constitutional mandates and the Florida Statutes and would likely greatly reduce litigation in this area.
A summary of the FPDAs comments are contained below, which are followed by proposals for
modifications in the attached appendix. The FPDA and its members believe additional work and objections
will likely be necessary before a final set of jury instructions are complete, meet constitutional muster, and
provide the State of Florida with the best efforts of our legal community.
The FPDAs comments and proposals focus primarily on:

1. the prior violent felony aggravator;
2. mitigation: the limiting definition of mitigation, the burden of proof for mitigation, and
imposing the burden of proof for mitigation on the defendant;
3. including standard instructions regarding weighing the evidence, beyond a reasonable
doubt, etc. (the FPDA believes these should be required in the penalty phase instructions as
has been done in the recent past and in the proposed jury instructions issued by the Florida
Supreme Court on April 13th in No. SC17-583. However the FPDA did not include them in
full format in this comments/proposals so that the more contentious proposals would be
more apparent);
4. and several other issues that are directly addressed within the instructions.
Respectfully submitted,
Peter Mills
Assistant Public Defender
FPDA Death Penalty Steering Committee, Chair
~ 44 ~
Comments
Prior Violent Felony Aggravating Factor
The prior violent felony aggravating factor violates the 6th, 8th, and 14th
amendments to the U.S. Constitution as well as the corresponding provisions in the
Florida Constitution in Art. I 9, 16, 14, and 22. On its face an in its application
this aggravating factor eliminates jury fact finding, effectively directs the jury to find
the existence of an aggravator automatically, and deprives defendants of those
safeguards that would prevent the arbitrary taking of life.
The aggravating factor is found in 921.141(6)(a), Fla. Stat. and reads as follows:
The defendant was previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person. The jury instruction for that
aggravating factor reads as follows

~ 45 ~
Fla. Std. Jury Instr. (Crim.) 7.11 (current and proposed). (Emphasis supplied). By
instructing a jury that a defendants prior and/or contemporaneous conviction(s) for a
crime is/are capital and/or involve the use or threat of violence, the trial court
effectively directs the jury to find the existence of an aggravator and make the
defendant eligible for the death penalty.
There is a 6th amendment problem with this instruction because it takes away the
jurys fact finding power on the question of whether the crime was in fact one
involving the use or threat of violence. The prior instruction had a note indicating
that this was permitted because the issue was simply a matter of law. As the Florida
Supreme Court has noted
[W]hether a crime constitutes a prior violent felony is

determined by the surrounding facts and circumstances of
the prior crime. See Rose v. State, 787 So. 2d 786, 800
(Fla. 2001). The existence of violence as an inherent
element is not the test.
Williams v. State, 967 So. 2d 735, 762 (Fla. 2007), as revised on denial of reh'g (Oct.
18, 2007). If there is a determination to be made about the facts and circumstances,
then it is fact finding. This is and should remain in the province of the jury.
~ 46 ~
Further, the subsections of this instruction, as highlighted above, violate the
prohibitions regarding an automatic death sentence as announced in Woodson v.
North Carolina, 428 U.S. 280 (1976).
[O]ne of the most significant developments in our society's

treatment of capital punishment has been the rejection of
the common-law practice of inexorably imposing a death
sentence upon every person convicted of a specified
offense.
Woodson, 428 U.S. 280, 301.
The Eighth Amendment draws its meaning from the evolving standards of decency
that mark the progress of a maturing society, as noted in Trop v. Dulles, 356 U.S.
86, 101 (1958). The use of an aggravating factor that automatically, mechanically
causes a defendant to face eligibility for the death penalty does not represent an
evolution of decency but instead a retrograde of that notion.
The jury instructions as written for the prior violent felony aggravating factor
found in 921.141(6)(a), Fla. Stat., are, on their face, a violation of the 8th
Amendment to the U.S. Constitution, Art. I, 14 of the Florida Constitution, and our
countys evolving standards of decency.
~ 47 ~
Mitigation
In Florida, the list of aggravating factors the State may choose from are limited to
those provided in 921.141(6), Fla. Stat. Florida law does not permit the use of
nonstatutory aggravating factors. See Knight v. State, 746 So.2d 423, 440, footnote
10; Kormondy v. State, 703 So.2d 454, 462-463, (Fla. 1997).
The burden of proving the existence of an aggravating factor beyond a reasonable
doubt falls on the shoulders of the State as provided in 921.141(2)(a), Fla. Stat.
That section provides, in pertinent part, that the jury shall determine if the state
has proven, beyond a reasonable doubt, the existence of at least one aggravating
factor
The current instructions and the Committees proposal contain a list of aggravating
factors, a burden of proving those aggravating factors, and note that the assignment
of that burden of proving the aggravating factors is on the State. See generally Fla.
Std. Jury Instr. (Crim.) 7.11 (current and proposed). While the current and proposed
instructions regarding aggravating factors have clear authority from the Florida
statutes, the proposed instructions on the limiting definition for mitigation, the
burden of proof, and placing the burden of proof on the defendant do not.
~ 48 ~
The list of mitigating circumstances that a jury may consider are provided in
921.141(7), Fla. Stat. That list includes what has come to be known as a catchall
instruction in 921.141(7)(h), Fla. Stat. In pertinent part, that subsection provides
for the consideration of any other mitigating factors in the defendants
background that would mitigate against imposition of the death penalty.
The notions of imposing a preponderance of evidence or greater weight burden
of proof on mitigation and of requiring a defendant to prove mitigation are statutory
and constitutional anathemas for the reasons listed below.
Limiting the Definition of & Creating a Burden of Proof for Mitigation
The use of a limiting definition for mitigating circumstances and the imposition of an
artificial burden of proof for mitigation is inappropriate for several reasons.
proof of a mitigating circumstance. There is no statutory language that can be read
~ 49 ~
to have a plain meaning there is such a burden. Nor is there statutory language from
which one could reasonably infer that such a burden exists.
For the Court to insert itself into the role of the legislature is incongruous with its
role of interpreting laws, and not writing them, in an apparent violation of Art. II,
3, of the Florida Constitution. The Courts creation of this burden of proof of a
mitigating circumstance is incongruous with the Courts limited role of interpreting
law, as opposed to writing it, and is a violation of Art II, 2 3, Fla. Const.
Second, these limits and hurdles will preclude the individualized sentencing required
by the Eighth Amendment to the U.S. Constitution. Recently the U.S. Supreme
Court noted that as a requirement of individualized sentencing, a jury must have
the opportunity to consider all evidence relevant to mitigation, and that a state statute
that permits a jury to consider any mitigating evidence comports with that
requirement. Kansas v. Marsh, 548 U.S. 163, 171 (2016).
The Committees proposal would limit evidence by inserting a burden of proof on
the consideration of mitigation by the jury. That is not necessary, because a trial
judge will have already considered whether or not the evidence is relevant. The
FPDA proposal is in accord with the broad standard for mitigation. See Tennard v.
~ 50 ~
Dretke, 542 U.S. 274, 285 (2004) ( [V]irtually no limits are placed on the relevant
mitigating evidence a capital defendant may introduce concerning his own
circumstances (quoting Eddings, supra at 114, 102 S.Ct. 869). Limiting the
mitigating evidence by setting an artificial hurdle deprives jurors of relevant
mitigation. See Hitchcock v. Dugger, 481 U.S. 393, 394 (1987) (We have held that
in capital cases, the sentence may not refuse to consider or be precluded from
considering any relevant mitigating evidence.; citations omitted). See also Martin
v. State, 107 So.3d 281, 319 (Fla. 2012) (a sentencer may not refuse to consider,
as a matter of law, any relevant mitigating evidence; internal citations omitted).
Imposing a Burden of Proof for Mitigation
The Committees proposal includes a provision requiring the Defendant to prove
mitigation. That provision states, in pertinent part, as follows
The defendant does not need to prove mitigating

circumstances beyond a reasonable doubt. The defendant
need only prove a mitigating circumstance by the greater
weight of the evidence
Fla. Std. Jury Instr. (Crim.) 7.11 (proposed). (Emphasis supplied).
The Courts former instruction included no such provision. That instruction
provided the following
A mitigating circumstance need not be proved beyond a

reasonable doubt by the defendant. A mitigating
~ 51 ~
circumstance need only be proved by the greater weight of
the evidence.
Fla. Std. Jury Instr. (Crim.) 7.11 (former). One might argue that an inference could
be drawn from the former instruction that the burden was on the defendant.
However, there is no doubt from the Committees proposal that the defendant bears
the burden of proving up mitigating circumstances. Further, the consideration at this
point is on the Committees pending proposal
proving the existence of a mitigating circumstance that falls upon the defendant. The
legislature crafted a burden of proof requirement for the State with regard to the
aggravating circumstances. The legislature did not create such a burden for the
defendant to prove mitigation.
Second, requiring a defendant to prove, not simply proffer, mitigation creates a
general presumption in favor of the death penalty that would violate the 8th
Third, the Committees proposal of putting the burden of proving mitigating
circumstances on the defendant is contrary to U.S. Supreme Court case law on this
topic. Mitigation may arise from the circumstances of the case rather than the
~ 52 ~
limited list provided by the Committee. For instance, in Lockett v. Ohio, 438 U.S.
586, 590 (1978), the prosecutors evidence showed that Lockett never intended to
kill anyone nor that anyone be killed during the robbery of a shop.
Consideration of relevant mitigation is unlimited and does not require a particular
burden of proof under the Eighth Amendment since the trial court would have
already limited the mitigation to evidence that is relevant, the Committees proposal
is misleading and inappropriate. See Lockett, 438 U.S. 604-605. A sentencer
may not refuse to consider or be precluded from considering any relevant
mitigating evidence. Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (quoting
Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)).
~ 53 ~
APPENDIX
FPDA proposed additions
FPDA proposed deletions
~ 54 ~
CAPITAL CASES
921.141, Fla. Stat.
The instruction is designed for first degree murders committed after May 24,
1994, when the legislature omitted the possibility of parole for anyone convicted of
First Degree Murder. For first degree murders committed before May 25, 1994, this
instruction will have to be modified.
This instruction is to be given immediately before the opening statements in

the penalty phase of a death penalty case.
Give 1a at the beginning of penalty proceedings before a jury that did not try
the issue of guilt.
1. a. Members of the jury, the defendant has been found guilty of
First Degree Murder in a previous proceeding. Consequently, you
will not concern yourselves with the question of guilt. You must
accept the fact that the defendant is guilty of First Degree Murder.
Give 1b at beginning of penalty proceedings before the jury that found the
defendant guilty.
b. Members of the jury, you have found the defendant guilty of
First Degree Murder.
Give in all cases.

Your deliberations in this penalty phase will determine the appropriate
sentence for the crime of First Degree Murder. There are only two options: Life
imprisonment without the possibility of parole, or death.
At the conclusion of this penalty phase trial, the jury will determine
whether one or more aggravating factors exist; whether any aggravating factors
found to exist are sufficient to warrant a sentence of death; whether any
mitigating circumstances exist; whether the aggravating factors outweigh the
mitigating circumstances; and whether the defendant should be sentenced to life

you what evidence they believe will be presented during this penalty phase.
What the lawyers say is not evidence, and you are not to consider it as such.
~ 55 ~
After the attorneys have had the opportunity to present their opening
statements, the State and the defendant may present evidence relative to the
nature of the crime and mitigating evidence., the character, background, or life
of the defendant. Mitigating evidence is any reason a juror believes may tend
to support a sentence of life in prison without the possibility of parole.
Comments
The trial judge may want to include other standard instructions in this
preliminary instruction, including but not limited to 3.7 Reasonable Doubt and 3.9
Weighing the Evidence.
~ 56 ~
7.11 FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS CAPITAL
CASES
921.141, Fla. Stat.
[Delete existing instruction 7.11 and replace with the following:]
This instruction is designed to be given after the closing arguments in the

penalty phase of a death penalty case. It may be modified for those judges who will
give part of it before closing arguments. Additionally, the instruction is designed for
first degree murders committed after May 24, 1994, when the legislature omitted the
possibility of parole for anyone convicted of First Degree Murder. For first degree
murders committed before May 25, 1994, this instruction will have to be modified.
Members of the jury, you have heard the evidence and the arguments of
counsel. It is now your duty to determine the appropriate sentence that should
be imposed upon (defendant). There are two possible punishments: Life
However, before a sentence of death may be imposed, the State must

prove the following three elements beyond a reasonable doubt:
1. One or more aggravating factors alleged by the State exist;
2. The aggravating factor, or factors, found to exist are sufficient to
warrant a sentence of death; and,
3. The aggravating factor, or factors, found to exist outweigh the
mitigating circumstances found to exist.
The terms aggravating factor and mitigating circumstance will be

explained to you.
Determining the appropriate sentence involves a multi-step process.
The first step is for you to determine whether the aggravating factor[s]
alleged by the State [has] [have] been proven beyond a reasonable doubt.
An aggravating factor is a fact specified by law that the jury may find
increases the seriousness of a First Degree Murder.
~ 57 ~
Give only those aggravating factors noticed by the State which are supported
by the evidence.
sentence of imprisonment] [on community control] [on felony
probation].



persons.

[engaged] [an accomplice] in [the commission of] [an attempt to
commit] [flight after committing or attempting to commit]
any

[robbery].
[sexual battery].
[abuse of an elderly person or disabled adult resulting in great
bodily harm, permanent disability, or permanent disfigurement].
[arson].
[burglary].
[kidnapping].
[aircraft piracy].
[unlawful throwing, placing or discharging of a destructive device
or bomb].
~ 58 ~
custody.

lawful exercise of any governmental function or the enforcement of
laws.


atrocious, or cruel is one accompanied by additional acts that show
that the crime was conscienceless or pitiless and was unnecessarily
torturous to (decedent).
9. The First Degree Murder was committed in a cold, calculated, and

premeditated manner, without any pretense of moral or legal
justification.
reflection.
Calculated means having a careful plan or prearranged design to

commit murder before the fatal incident.

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
~ 59 ~
enough to allow reflection by the defendant. The premeditated
intent to kill must be formed before the killing.
However, in order for this aggravating factor to apply, a heightened

level of premeditation, demonstrated by a substantial period of
reflection, is required.

justification or excuse that, though insufficient to reduce the degree
of murder, nevertheless rebuts the otherwise cold, calculated, or
premeditated nature of the murder.

11. (Decedent) was an elected or appointed public official engaged in the

performance of [his] [her] official duties, if the motive for the First
Degree Murder was related, in whole or in part, to (decedents)
official capacity.


14. The First Degree Murder was committed by a criminal street gang
member.
15. The First Degree Murder was committed by a person designated as

a sexual predator or a person previously designated as a sexual
predator who had the sexual predator designation removed.

[a [repeat] [sexual] [dating] violence injunction issued by a Florida
judge],
~ 60 ~
and
Victim impact evidence. Give if applicable. Also, give at the time victim impact
evidence is admitted, if requested.
You have heard evidence about the impact of this murder on the [family]
[friends] [community] of (decedent). This evidence was presented to show the
victims uniqueness as an individual and the resultant loss by (decedents) death.
However, you must not consider this evidence as an aggravating factor.
Give in all cases.

In order to find that an aggravating factor exists, the jury must be
unanimous, that is, each of you must agree. If the jury does not unanimously
find that the State has proven beyond a reasonable doubt that one or more
aggravating factors exists, then your verdict must be for a sentence of life
imprisonment without the possibility of parole and your deliberations are
complete. To reflect this verdict, sign and date the Sentencing Verdict Form.
If, however, the jury unanimously finds that one or more aggravating
factors have been proven beyond a reasonable doubt, you should sign Verdict
Form 1 (Existence of Aggravating Factor(s)) for each aggravating factor found
proven and then proceed to step two.
Verdict Form 1 (Existence of Aggravating Factor(s)) reads as follows:
We, the jury, find as follows, as to the aggravating factor of (repeat for
each aggravating factor disclosed in the Notice to Seek Death Penalty filed
pursuant to Fla. R. Crim. P. 3.181):
______ The State proved this aggravating factor beyond a reasonable doubt.
_______The State did not prove this aggravating factor beyond a reasonable
doubt.
~ 61 ~
If you proceed to step two, then during the rest of your deliberations you
must disregard any aggravating factor[s] that [was] [were] alleged by the State,
but not unanimously found to be proven beyond a reasonable doubt. No
individual juror is permitted to consider any aggravating factors other than
those the jury unanimously found to exist.
Merging aggravating factors. Give the following paragraph if applicable. For

example, the aggravating circumstances that 1) the murder was committed during
the course of a robbery and 2) the murder was committed for financial gain, relate to
the same aspect of the offense and may be considered as only a single aggravating
factor. Castro v. State, 597 So. 2d 259 (Fla. 1992).
considered to be a single aspect of the offense. If you determine that the
aggravating factors of (insert aggravating factor) and (insert aggravating factor)
have both been proven beyond a reasonable doubt, your findings should
one aggravating factor for the rest of your deliberations.
The second step in the process is for the jury to determine whether the
State has proven beyond a reasonable doubt that the aggravating factor or
factors that you found to exist is or are sufficient to impose a sentence of death.
The jury must unanimously find that the aggravating factor or factors found to
exist is or are sufficient to impose a sentence of death.
If the jury does not unanimously find that the State has proven beyond a
reasonable doubt that the aggravating factor or factors are sufficient to impose
a sentence of death, then your verdict must be for a sentence of life
If, however, the jury unanimously finds that the aggravating factor is/ or
factors are sufficient to impose a sentence of death, you should sign Verdict
Form 2 (Sufficiency of Aggravator(s)) and then proceed to step three.
Verdict Form 2 (Sufficiency of Aggravator(s)) reads as follows:
We, the jury, find as follows, as to the sufficiency of aggravator(s):
~ 62 ~
______ The State proved the aggravating factor or factors is or are
sufficient to warrant a sentence of death beyond a reasonable doubt.
_______The State did not prove the aggravating factor or factors is or are
sufficient to warrant a sentence of death beyond a reasonable
doubt.

The third step in the process is for each juror individually to decide
whether mitigating circumstances exist. A mitigating circumstance is anything
that tends to support a sentence of life imprisonment without the possibility of
parole rather than a death sentence. Mitigating circumstances are not limited to
the facts surrounding the crime.
The defendant does not need to prove mitigating circumstances beyond a

reasonable doubt. Unlike aggravating factors, which must be found
unanimously and beyond a reasonable doubt, mitigating circumstances do not
require unanimous agreement. A mitigating circumstance may be found by one
or more individual jurors. The defendant need only prove a mitigating
circumstance by the greater weight of the evidence, which means evidence that
more likely than not tends to prove the existence of the mitigating circumstance.
If you determine by the greater weight of the evidence that a mitigating
circumstance exists, you must consider it proven. Additionally, the jury need
not be unanimous regarding a finding that a mitigating circumstance exists.
Each juror should make his or her own decision about whether a mitigating
circumstance exists.
There are no limits to the mitigating circumstances you may consider.

However, aAmong the mitigating circumstances you may consider are:
presented.
If the defendant offers evidence on this circumstance and the State, in rebuttal,
offers evidence of other crimes, also give the following:
Conviction of (previous crime) is not an aggravating circumstance to be
conviction of that crime may be considered by the jury in determining whether
the defendant has a significant history of prior criminal activity.
~ 63 ~

to the act.

committed by another person and [his] [her] participation was
relatively minor.


[her] conduct or to conform [his] [her] conduct to the requirements
of law was substantially impaired.
The judge should also instruct on any additional mitigating circumstances as

requested.

background or life, or the circumstances of the offense that would,
or any other any other reason you believe may tend to mitigate
against the imposition of the death penalty.
Give in all cases.

Unlike the other steps in this process, there is no verdict form to complete
regarding the existence of mitigating circumstances. Instead, each of you must
consider the mitigating circumstances that you have individually found to exist
in the next two steps of the process.
The fourth step in the process is for each of you to determine whether the
aggravating factor or factors that you have unanimously found to exist
outweigh(s) the mitigating circumstances that you have individually found to
exist. The process of weighing aggravating factors and mitigating circumstances
is not a mechanical or mathematical process. In other words, you should not
~ 64 ~
merely total the number of aggravating factors and compare that number to the
total number of mitigating circumstances.
The State has the burden to prove to each of you, beyond a reasonable
doubt, that the aggravating factor or factors that the jury has unanimously
found to exist outweigh(s) the mitigating circumstance(s) that each of you have
individually found to exist.
If the jury does not unanimously find that the State has proven beyond a
reasonable doubt that the aggravating factor or factors outweigh(s) the
mitigating circumstance(s), then your verdict must be for a sentence of life
If, however, the jury unanimously finds that the aggravating factor or
factors outweigh(s) the mitigating circumstance(s), you should sign Verdict
Form 3 (Weighing Aggravating Factor(s) and Mitigating Circumstance(s)) and
then proceed to the final step.
Verdict Form 3 (Weighing Aggravating Factor(s) and Mitigating

Circumstance(s)) reads as follows:
We, the jury, find as follows, as to the weighing of aggravating factor(s) and
mitigating circumstance(s):
______ The State proved the aggravating factor(s) outweigh(s) the

mitigating circumstance(s) beyond a reasonable doubt.
_______The State did not prove the aggravating factor(s) outweigh(s) the
Give bracketed language if the penalty phase jury was also the guilt phase
jury.
The final step in this phase of the trial is for each of you to determine
whether the defendant should be sentenced to life imprisonment without the
possibility of parole, or death. The court may not impose a sentence of death
unless each juror individually finds the defendant should be sentenced to death.
Even when death is a possible sentence, each juror must decide based on
his or her own moral assessment whether life imprisonment without the
~ 65 ~
possibility of parole, or death, should be imposed. Regardless of your prior
findings, the law never compels nor requires any juror to determine the
defendant should be sentenced to death. Any single juror has the right to vote
for a sentence of life imprisonment without the possibility of parole.
If, after deliberating, the jury unanimously agrees that the appropriate
sentence is death, then your verdict should be for a sentence of death. If the jury
does not unanimously agree that the appropriate sentence is death, then your
verdict must be for a sentence of life imprisonment without the possibility for
parole.
The fact that a jury can recommend a sentence of life imprisonment

without the possibility of parole, or death, on a single ballot should not influence
you to act hastily or without due regard to the gravity of these proceedings.
Before you ballot you should carefully, weigh, sift, and consider the evidence,
realizing that human life is at stake, and bring your best judgment to bear in
reaching your verdict.
The Sentencing Verdict Form reads as follows:
We the jury find the appropriate sentence is life

imprisonment without the possibility of parole.
_____ We the jury unanimously find the appropriate sentence is

death.
The Court should shall then insert and read pertinent instructions, modified
for a penalty phase if necessary, including but not limited to 3.7 Reasonable
Doubt; 3.9 Weighing the Evidence; 3.9(a) Defendant not Testifying; 3.9(b)
Defendants Statements; 3.10 Rules for Deliberation; 3.11- Cautionary Instruction;
and 3.13- Submitting Case to Jury.
With regard to Fla. Std. Jury Instr. (Crim.) 3.10(8), the FPDA believes the
word sympathy should be removed because it may reasonably be equated with
mercy, which is a permissible consideration for jurors in a penalty phase deciding
whether to take the life of another human being.
8. Your verdict should not be influenced by feelings of prejudice, or bias.,

or sympathy. Your verdict must be based on the evidence, and on the
law contained in these instructions.
~ 66 ~
Comment
1989 [543 So. 2d 1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639
So. 2d 602], 1995 [665 So. 2d 212], 1996 [678 So. 2d 1224], 1997 [690 So. 2d
1263], 1998 [723 So. 2d 123], and 2009 [22 So. 3d 17], and 2017.
~ 67 ~
7.11(a) VERDICT FORMS FOR DEATH PENALTY CASES
Verdict Form 1 (Existence of Aggravating Factor(s))
We, the jury, find as follows, as to the aggravating factor of (repeat for each
aggravating factor disclosed in the Notice to Seek Death Penalty filed
pursuant to Fla. R. Crim. P. 3.181):
______ The State proved this aggravating factor beyond a reasonable doubt.
_______The State did not prove this aggravating factor beyond a reasonable
doubt.
Read if applicable.
considered to be a single aspect of the offense. If you determine that the
aggravating factors of (insert aggravating factor) and (insert aggravating factor)
have both been proven beyond a reasonable doubt, your findings should
one aggravating factor for the rest of your deliberations.
Verdict Form 2 (Sufficiency of Aggravator(s))
We, the jury, find as follows, as to the sufficiency of aggravator(s):
______ The State proved the aggravating factor or factors is or are

sufficient to warrant a sentence of death beyond a reasonable doubt.
_______The State did not prove the aggravating factor or factors is or are
sufficient to warrant a sentence of death beyond a reasonable
doubt.
Verdict Form 3 (Weighing Aggravating Factor(s) and Mitigating

Circumstance(s))
We, the jury, find as follows, as to the weighing of aggravating factor(s) and
mitigating circumstance(s):
~ 68 ~
______ The State proved the aggravating factor(s) outweigh(s) the
_______The State did not prove the aggravating factor(s) outweigh(s) the
Sentencing Verdict Form
_______ We the jury find the appropriate sentence is life

imprisonment without the possibility of parole.
_____ We the jury unanimously find the appropriate sentence is

death.
Dated this ______ day of , 20 , in , County, Florida.
_____________________#____________
Signature of foreperson Juror Number
Comment
This verdict form was adopted in 2017.
~ 69 ~
Ladies and gentlemen of the jury, we are going to ask each of you
individually concerning the advisory sentence. It is not necessary that you state
how you personally voted, or how any other person voted, but only if the
advisory sentence, as read, was correctly stated.
The following question is to be asked each juror if the recommendation is for

the death penalty:
Do you, [Mr.] [Ms.]_____________________________, agree and confirm that a
majority of the jury join in the advisory sentence that you have just heard read
by the clerk?
The following question is to be asked each juror if the recommendation is for a

life sentence:
Do you, [Mr.] [Ms.]_____________________________, agree and confirm that at
least six or more of the jury join in the advisory sentence that you have just
heard read by the clerk?
Members of the jury, we are going to ask each of you about the verdicts
that you have just heard. Do you, [(name of juror)] [juror number (number of
juror)], agree that this reflects your individual verdicts and the verdicts of the
jury as a whole?
Comment
This instruction was adopted in 1981 and amended in 1997 and 2017.
~ 70 ~
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to The Criminal Jury Instructions Committee Chair, The Honorable F.
Rand Wallis, c/o Bart Schneider, Office of the General Counsel, at 500 S. Duval
Street, Tallahassee, Florida 32399-1925, schneidb@flcourts.org, this 26th day of
May, 2017.
Peter Mills /s/
____________________________
PETER MILLS
FLORIDA BAR #0998771
Assistant Public Defender
Florida Public Defender Association
Death Penalty Steering Committee, Chair
~ 71 ~
EXHIBIT D

Motion To Continue Trial No. 3 in Bannister Adv State of Florida

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Motion To Continue Trial No. 3 in Bannister Adv State of Florida

Uploaded by

Copyright:

Available Formats

Filing # 59792913 E-Filed 08/01/2017 02:34:23 PM

IN THE CIRCUIT COURT OF THE FIFTH

STATE OF FLORIDA CASE NO: 2011-CF-3085-CF-A-X

DEFENDANTS THIRD MOTION TO CONTINUNE

The defendant, JAMES BANNISTER, pursuant to FRCrP 3.190(g)(4), respectfully

is seeking the death penalty as to each count.

apply the law in his/her deliberations in order to return a lawful verdict.

along with any requests for oral argument. Id. at fn. 2.

7. In addition to the jury instruction committee's (committee) proposed amendments

propose any changes. Id.

Court. See this Courts order attached hereto as Exhibit D.

defendant's case, the defendant's trial should not go forward.

following Federal Constitutional rights:

c. Defendants fourteenth amendment right to due process of law, substantive and

d. Defendant's fourteenth amendment right to equal protection. Unlike all other

following Florida Constitutional rights:

a. Defendant's basic rights under Article 1, section 2,

b. Defendant's due process rights under Article 1, section 9,

Respectfully submitted this 1 day of August, 2017.

/s/ Terence M. Lenamon

IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS

[April 13, 2017]

jury instructions pertaining to the imposition of the death penalty. On an interim

Criminal Cases 7.11 (Preliminary Instructions in Penalty ProceedingsCapital

Death Penalty) and 7.11(a) (Final Instructions in Penalty ProceedingsCapital

Cases).1 We have jurisdiction. See art. V, 2(a), Fla. Const.

unanimously determine that a defendant should be sentenced to death before a trial

court may impose the death penalty.

In light of chapter 2017-1, Laws of Florida, and our decision in Hurst, we

portion of Floridas death penalty law that was deemed constitutionally

problematic in Hurst v. Florida and Hurstfor example, the definitions of

statutory aggravating factorshas been transferred to new instruction 7.11(a)

without any substantive changes. In adopting these interim instructions, we

forecloses neither requesting additional or alternative instructions, nor contesting

the legal correctness of the instructions. New language is indicated by underlining,

for use immediately and until further order of the Court.

We seek comments and suggestions on the interim instructions from the

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

PARIENTE, J., concurring.

I write in response to Justice Polstons dissent, which apparently disagrees

be applied to pending prosecutions with jury instructions consistent with Hurst.

Clearly the new capital sentencing law applies to pending prosecutions in

the Legislatures most recent revision to Floridas capital sentencing law.

LAWSON, J., specially concurring.

In light of changes to section 921.141, Florida Statutes, made by the

Legislature in 2016 and recently in chapter 2017-1, Laws of Florida, I am not

should be asked to render a verdict as to each aggravating circumstance alleged by

cannot be imposed unless at least one aggravating factor is proven beyond a

each aggravator, of course, must be unanimous. 921.141(2)(b), Fla. Stat.

However, I question whether we need special verdicts as to each statutory

mitigating circumstance or as to the weighing process.4 See ch. 2017-1, 1, Laws

death, the jurys recommendation to the court shall be a sentence of death.). I

would invite comment as to whether it would be preferable to ask a jury that

unanimously finds an aggravating factor to then simply return a general verdict

reflecting its sentencing recommendation, consistent with the statute.

3. Section 921.141 requires the jury to return findings identifying each

State, I dissent. As Justice Canady cogently explained,

[c]ontrary to the majoritys view, each fact necessary to

Contrary to Justice Parientes assertion in her concurring opinion, I have not

13, Laws of Florida, could be applied to pending prosecutions with jury

from this Court. They are better than that.

CANADY, J., concurs.

If NO, our vote to impose a sentence of life is _ to _.