Fla. Std. Jury Instr. (Crim.) 7.10

§ 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 must be modified.

This instruction is to be given immediately before the opening statements in the penalty phase of a death penalty case.

Give the paragraph below to a jury that did not participate in the guilt phase.

Members of the jury, the defendant has been found guilty of ______count[s] of First Degree Murder in a previous proceeding. The only issue before you is to determine the appropriate penalty. The penalty for [this] [each of these] crime[s] is either life in prison without the possibility of parole or the death penalty.

Give the paragraph below to the jury that found the defendant guilty.

Members of the jury, you have found the defendant guilty of ______count[s] of First Degree Murder. The only issue before you in this phase of the trial is to determine the appropriate penalty. The penalty for [this] [each of these] crime[s] is either life in prison without the possibility of parole or the death penalty.

Before proceeding further, it will be helpful if you understand how this proceeding will be conducted.

The attorneys will 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. Witnesses may be called to testify under oath. If so, they will be examined and may be cross-examined by the attorneys. Documents and other exhibits also may be produced as evidence. This evidence [, along with the evidence that you heard during the guilt phase of this trial,] is presented for you to determine whether the State proved beyond a reasonable doubt the existence of the alleged aggravating factor[s]. If so, you must weigh whether the proven aggravating factor[s] [is] [are] sufficient and whether the aggravating factors[s] outweigh[s] any mitigating circumstances the defendant proves by the greater weight of the evidence. Finally, you will decide whether the defendant should be sentenced to life in prison without the possibility of parole or to death. At the conclusion of the evidence and after argument of counsel, you will be instructed on the law that will guide your deliberations.

An aggravating factor is the only circumstance recognized by Florida law that could result in a defendant receiving the death penalty. An aggravating factor increases the gravity of a crime or the harm to a victim beyond the harm inherent in every First Degree Murder. You must unanimously agree that an aggravating factor was proven beyond a reasonable doubt before it may be considered by you in arriving at your sentencing decision. The aggravating factor[s] alleged by the State in this case [is] [are]:

Give only those aggravating factors noticed by the State.

1. (Defendant) was previously convicted of a felony and was [under sentence of imprisonment] [on community control] [on felony probation] at the time [he] [she] committed the First Degree Murder in this case.

2. (Defendant) was previously [or contemporaneously] convicted of [another capital felony] [a felony involving the [use] [threat] of violence to another person].

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. (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

Check § 921.141(6)(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 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.

“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 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, 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 (decedent’s) 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).

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 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

[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

The victim of the First Degree Murder was [the person] [a [spouse] [child] [sibling] [parent] of the person] who obtained the [injunction] [protective order].

Effective July 1, 2025.

17. The First Degree Murder was committed against the head of a state, including, but not limited to, the President or the Vice President of the United States or the Governor of Florida or another state, [or in an attempt to commit such crime, a First Degree Murder was committed against another individual].

Effective October 1, 2025.

18. (Decedent), the victim of the First Degree Murder, was gathered with one or more persons for a school activity, religious activity, or public government meeting.

Give if requested.

Once the State has presented evidence of the existence of [an] aggravating factor[s], victim impact evidence may be presented. Such evidence is only presented to demonstrate the victim’s uniqueness as an individual and the loss to the community by the victim’s death. However, victim impact evidence must not be considered by you as an aggravating factor.

A mitigating circumstance can be anything that might indicate the death penalty is not appropriate for the defendant. It is not limited to the facts surrounding the crime. In other words, a mitigating circumstance may include any aspect of the defendant’s character, background, or life, or any circumstance of the offense that may indicate the death penalty is not an appropriate sentence in this case.

Whether a mitigating circumstance has been proven is an individual judgment by each juror. A mitigating circumstance need not be proven beyond a reasonable doubt but must be proven by the greater weight of the evidence.

The trial judge should select one of the following two alternatives regarding how final instructions are presented pursuant to Fla. R. Crim. P. 3.390(a).

Alternative A: After the evidence has been presented, the attorneys will have the opportunity to make their closing arguments. Following the closing arguments by the attorneys, the court will instruct you on the law.

Alternative B: After the evidence has been presented, the court will give you instructions on the law. The attorneys will then have the opportunity to make their closing arguments. Following the closing arguments by the attorneys, the court will conclude with final instructions.

Resume with the paragraph below.

After the final instructions are given, [the alternate juror[s] will be released and] you will begin your deliberations. You should not form any definite or fixed opinion until you have heard all the evidence, the argument of the lawyers, and my instructions on the law. Until that time, you should not discuss the case among yourselves. Your decision must be based solely on the evidence, or lack of evidence, and the law.

During the penalty phase, the court may take recesses, and you will be permitted to separate and go about your personal affairs. During these recesses, you must not discuss the case with anyone nor permit anyone to say anything to you or in your presence about the case. If anyone attempts to say anything to you or in your presence about this case, tell him or her that you are on the jury and ask that person to stop. If he or she persists, leave that person at once and immediately report the matter to the [court deputy] [bailiff], who will advise me.

The trial judge should select one of the following two alternative instructions explaining the rules governing jurors’ use of electronic devices.

Alternative A: All cell phones, computers, tablets, or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode. You may use these devices during recesses, but even then, you may not use your cell phone or electronic device to find out any information about the case or communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors. After each recess, please double check to make sure your cell phone or electronic device is turned off. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. You cannot have in the jury room any cell phones, computers, or other electronic devices. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. A contact phone number will be provided to you.

Alternative B: You cannot have any cell phones, tablets, laptops, or other electronic devices in the courtroom. You may use these devices during recesses, but even then, you may not use your cell phone or electronic device to find out any information about the case or communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or your fellow jurors. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. A contact phone number will be provided to you.

Resume with the paragraph below.

The penalty phase must be tried by you only on the evidence presented in your presence and in the presence of the defendant, the attorneys, and the judge. Jurors must not conduct any investigation of their own. This includes reading newspapers, watching television, or using a computer, cellphone, 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. You must not visit places mentioned or use the Internet to look at maps or pictures to see any place discussed during the penalty phase.

Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. Do not let even the closest family members make comments to you or ask questions about the penalty phase. In this age of electronic communication. I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones. computers, or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an internet website, chat room, or blog.

What are the reasons for these rules? These rules are imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. If you investigate, research, or make inquiries on your own, I have no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our judicial system, which assures every party the right to ask questions about and challenge the evidence being considered against it and to present argument with respect to that evidence. Any independent investigation by a juror unfairly and improperly prevents the parties from having the opportunity that our judicial system promises.

Any juror who violates these restrictions jeopardizes the fairness of these proceedings and a mistrial could result that would require the entire process to start over. A mistrial is a tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail, paying a fine, or both.

Give the following paragraph if the defense requests it.

In every criminal proceeding, a defendant has the absolute right to remain silent. From the exercise of a defendant’s right to remain silent, a jury is not permitted to draw any inference regarding the existence of an aggravating factor or an appropriate sentence, and the fact that a defendant did not take the witness stand must not influence your sentencing decision in any manner whatsoever.

The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to make all objections they feel are proper. When an objection is made you should not speculate on the reason why it is made; likewise, when an objection is sustained, or upheld, by me, you must not speculate on what might have occurred had the objection not been sustained. nor what a witness might have said had the witness been permitted to answer.

It may be necessary to confer with the attorneys out of your hearing to discuss matters that require consideration by me alone. It is impossible to predict when such a conference may be required or how long it will last. When such conferences occur, they will be conducted to consume as little of your time as is necessary.