IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RANDY KENT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5666
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed April 8, 2015.
An appeal from the Circuit Court for Liberty County.
Jonathan E. Sjostrom, Judge.
Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief-
Criminal Appeals, Tallahassee, for Appellee.
PER CURIAM.
Appellant Randy Kent appeals his conviction for felony battery arguing the
trial court erred in failing to give a portion of a standard jury instruction. While the
trial court erred, we hold the error was harmless and therefore affirm.
During the charge conference below, counsel and the trial court discussed
some of the recently revised jury instructions. Among the revisions is the addition
of the following language to standard criminal instruction 3.9:
Whether the State has met its burden of proof does not
depend upon the number of witnesses it has called or
upon the number of exhibits it has offered, but instead
upon the nature and quality of the evidence presented.
This instruction was adopted by the Florida Supreme Court in September 2013. In
Re Standard Jury Instructions in Criminal Cases, 122 So. 3d 302 (Fla. 2103). The
trial court found this provision to be “redundant both of the burden of proof
instruction . . . as well as of the weighing the evidence [sic].” Thus, the trial court
declined to give it, despite the request of appellant that all of the standard
instructions be given without alteration.
There is a long line of cases which hold that the standard jury instructions
are presumed correct and are preferred over special instructions. See e.g.,
Stephens v. State, 787 So. 2d 747 (Fla. 2001); Alvarez v. State, 890 So. 2d 389
(Fla. 1st DCA 2004), et al. As the Florida Supreme Court has explained:
It is important that trial courts, which retain the critical
role of determining the appropriate law upon which the
jury should be instructed, indicate the basis of any
disagreement with the standard jury instructions. The
committees that draft standard instructions work hard in
developing these restatements of Florida law in clear and
straightforward language to assist the courts in carrying
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out their responsibility to explain the law to citizen
jurors. Confidence in the use of these instructions is
undermined when their use is rejected without
explanation. On the other hand, trial judges perform an
important service to the law when they detect some
problem with a standard instruction or otherwise explain
why its use is inappropriate in a particular case.
State v. Hamilton, 660 So. 2d 1038, 1046 (Fla. 1995).
Because the standard instructions are preferred, the Florida Rules of
Criminal Procedure sets forth a procedure which is to be followed when a trial
court opts not to use the standard instructions; rule 3.985 provides:
The forms of Florida Standard Jury Instructions in
Criminal Cases appearing on the court's website . . . may
be used by the trial judges of this state in charging the
jury in every criminal case to the extent that the forms are
applicable, unless the trial judge shall determine that an
applicable form of instruction is erroneous or
inadequate, in which event the judge shall modify or
amend the form or give such other instruction as the trial
judge shall determine to be necessary to instruct the jury
accurately and sufficiently on the circumstances of the
case; and, in such event, the trial judge shall state on the
record or in a separate order the respect in which the
judge finds the standard form erroneous or inadequate
and the legal basis of the judge's finding.
(Emphasis added). A trial court’s obligation under this rule is mandatory. Holt v.
State, 987 So. 2d 237 (Fla. 1st DCA 2008)(citing State v. Hamilton, 660 So. 2d at
1045-46).
In the instant case, the trial court did not find the instruction at issue was
“erroneous or inadequate,” but rather found it duplicative. Such a reason is not
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sufficient, and thus, the trial court erred. However, automatic reversal is not
required when a trial court strays from the standard instructions. Kelley v. State,
486 So. 2d 578 (Fla. 1986); State v. Bryan, 290 So. 2d 482 (Fla. 1974). Instead,
such an error is subject to a harmless error analysis. Hamilton, 660 So. 2d at 1046
n. 13. Here, the failure to instruct the jury that the State’s burden of proof did not
depend on the quantity of evidence presented but on the quality thereof did not
result in a miscarriage of justice, nor is there a “reasonable possibility that the error
contributed to the conviction.” § 59.041, Fla. Stat. (2013); State v. DiGuillio, 491
So. 2d 1129 (Fla. 1986).
Accordingly, we AFFIRM.
ROBERTS, SWANSON, and BILBREY, JJ., CONCUR.
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