NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DAVID BRIAN USRY, )
)
Appellant, )
)
v. ) Case No. 2D18-4435
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed November 13, 2019.
Appeal from the Circuit Court for Pasco
County; Susan G. Barthle, Judge.
Howard L. Dimmig, II, Public Defender, and
Andrea Flynn Mogensen, Special Assistant
Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Kelly O'Neill, Assistant
Attorney General, Tampa; and Lindsay D.
Turner, Assistant Attorney General, Tampa
(substituted as counsel of record), for
Appellee.
BADALAMENTI, Judge
David Brian Usry challenges his conviction and sentence for second-
degree murder. The omission of Florida Standard Jury Instruction (Criminal) 3.7, or a
related instruction, which charges the jury, among other things, as to the reasonable-
doubt standard constitutes fundamental error. We accept the State's concession of
fundamental error and reverse and remand for a new trial.
Following the presentation of evidence and argument of counsel, the court
instructed the jury that the State had to prove the elements of second-degree murder
beyond a reasonable doubt. However, the jury charge did not include Standard Jury
Instruction 3.7. That instruction sets forth, among other things, the reasonable-doubt
standard. It provides:
3.7 PLEA OF NOT GUILTY; REASONABLE DOUBT; AND
BURDEN OF PROOF
The defendant has entered a plea of not guilty. This means
you must presume or believe the defendant is innocent. The
presumption stays with the defendant as to each material
allegation in the [information] [indictment] through each
stage of the trial unless it has been overcome by the
evidence to the exclusion of and beyond a reasonable doubt.
To overcome the defendant's presumption of innocence, the
State has the burden of proving the crime with which the
defendant is charged was committed and the defendant is
the person who committed the crime.
The defendant is not required to present evidence or prove
anything.
Whenever the words "reasonable doubt" are used you must
consider the following:
....
A reasonable doubt is not a mere possible doubt, a
speculative, imaginary or forced doubt. Such a doubt must
not influence you to return a verdict of not guilty if you have
an abiding conviction of guilt. On the other hand, if, after
carefully considering, comparing and weighing all the
evidence, there is not an abiding conviction of guilt, or, if,
having a conviction, it is one which is not stable but one
which wavers and vacillates, then the charge is not proved
beyond every reasonable doubt and you must find the
defendant not guilty because the doubt is reasonable. It is to
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the evidence introduced in this trial, and to it alone, that you
are to look for that proof.
A reasonable doubt as to the guilt of the defendant may
arise from the evidence, conflict in the evidence, or the lack
of evidence.
If you have a reasonable doubt, you should find the
defendant not guilty. If you have no reasonable doubt, you
should find the defendant guilty.
Fla. Std. Jury Instr. (Crim.) 3.7. Neither defense counsel nor counsel for the State
included the instruction or an alternative charge properly addressing the reasonable-
doubt standard in the compilation for the jury charge. And as the trial court read the
instructions to the jury, neither counsel alerted the court as to the omission of a
reasonable-doubt instruction. Simply stated, the jury was never instructed as to
reasonable doubt.
Mr. Usry argues, and the State properly concedes, that the failure to
instruct the jury as to the critical concept of reasonable doubt constitutes fundamental
error. We accept the State's concession and accordingly reverse and remand for a new
trial. See Curry v. State, 169 So. 3d 1258, 1259-60 (Fla. 5th DCA 2015) (reversing and
remanding for new trial because the trial court's failure to instruct the jury as to
reasonable doubt constituted fundamental error); Cavagnaro v. State, 117 So. 3d 1111,
1112 (Fla. 3d DCA 2012) ("We reverse the convictions because the failure to give the
jury any reasonable doubt instruction at all, though unpreserved, is fundamental error.");
see also Arizona v. Fulminante, 499 U.S. 279, 291 (1991) ("[I]t is impossible to assess
the effect on the jury of the omission of the more fundamental instruction on reasonable
doubt. . . . [O]mission of a reasonable-doubt instruction, though a 'trial error,' distorts the
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very structure of the trial . . . ."). Given this disposition, we do not address Mr. Usry's
remaining issues on appeal.
Reversed and remanded with instructions.
CASANUEVA and LUCAS, JJ., Concur.
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