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Proposed criminal jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following amended instruction to the Florida Standard Jury Instructions in Criminal Cases and invites all persons to comment to the Committee on the proposal. The Committee proposes a revised instruction for:

3.3(f) Aggravation of a Crime by Prejudice

The committee invites all interested persons to comment on the proposal, which is reproduced in full below. After reviewing the comments received in response to this publication, the Committee will make a final recommendation to the Florida Supreme Court. Comments must be received by the committee in both hard copy and electronic format on or before Monday, November 30. Mail your comments to Judge Terrell D. Terrell, chair of the Standard Jury Instructions Committee in Criminal Cases, c/o Les Garringer, Office of the General Counsel, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900. The electronic copy must be e-filed to CrimJuryInst@flcourts.org, as a Word document.

3.3(f) AGGRAVATION OF A [begin strikethrough]FELONY BY EVIDENCING PREJUDICE[end strikethrough] CRIME BY SELECTING A VICTIM BASED ON PREJUDICE

[section] 775.085, Fla. Stat.

[begin strikethrough]The punishment provided by law for the crime of (crime charged) is greater if the defendant was motivated by prejudice to commit the crime. Therefore, i[end strikethrough] If you find [begin strikethrough]the defendant[end strikethrough] that (defendant) committed (crime charged or a lesser included crime) [begin strikethrough]guilty of (crime charged) you must then consider the defendant's alleged motivation in committing the crime.[end strikethrough] and you also find beyond a reasonable doubt that during the commission of the crime, (defendant)

[begin strikethrough]If the State has proven the crime of (crime charged) and if the State has proven beyond a reasonable doubt that (defendant):[end strikethrough]

1. perceived, knew, or had reasonable ground to perceive or know (victim's) [race] [color] [ancestry] [ethnicity] [religion] [sexual orientation] [national origin] [mental disability] [physical disability] [advanced age], and

2. intentionally selected (victim), in whole or in part, because of that perception or knowledge, you should find that the defendant [begin strikethrough]was motivated by[end strikethrough] guilty of (crime charged or lesser included crime) aggravated by the intentional selection of the victim based on prejudice [begin strikethrough]to commit the crime.[end strikethrough]

If you find that the [begin strikethrough]state has proven the crime of[end strikethrough] defendant committed (crime charged or a lesser included crime) beyond a reasonable doubt, but [begin strikethrough]has not proven beyond a reasonable doubt that[end strikethrough] you are not convinced beyond a reasonable doubt that [he] ]she] did so by intentionally selecting the victim based on [begin strikethrough]the defendant was motivated by[end strikethrough] prejudice, [begin strikethrough]to commit the crime[end strikethrough], then you should find the defendant guilty of only (crime charged or a lesser included crime).

Definitions. Give if applicable.

"Mental or physical disability" means that the victim suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the victim's ability to perform the normal activities of daily living.

"Advanced age" means that the victim is older than 65 years of age.

Comment

This instruction is based on section 775.085, Florida Statutes (Supp. 1998). Proof that the defendant intentionally selected the victim is required by the case law. See State v. Stalder, 630 So. 2d 1072 (Fla. 1994).

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2000 [765 So.2d 692] and amended in 2006.
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Publication:Florida Bar News
Geographic Code:1U5FL
Date:Nov 1, 2006
Words:607
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