In WILLIAMS v. STATE, No. 2D09-3606 (Fla. 2d DCA Jul. 22, 2011), the Defendant was charged, inter alia, with both grand theft of and dealing in the same stolen property. The Defendant requested a special jury instruction tracking the language of § 812.025 Florida Statutes (2008).
The trial court refused the instruction. The jury returned a verdict of guilty on both grand theft and dealing in stolen property; the trial court dismissed the grand theft charge, as the lesser of the two offenses. The DCA considered whether the trial court should have instructed the jury that it could return a verdict on the offense of grand theft or the offense of dealing in stolen property, but not on both offenses, as explained in § 812.025.
The DCA observed that "[t]he procedure the trial court utilized to fulfill the intent of section 812.025 is the same procedure that most, if not all, circuit courts have used in this district for many years."
Slip opinion at 4. The DCA held that "the trial court did not err in following established precedent." Slip opinion at 5. The court reasoned that "the language of section 812.025 is not an adequate jury instruction and we doubt that there is any adequate method to instruct on this statute for several reasons. This statute is odd in many respects, and we are convinced that the courts of this state will better achieve the legislature's intent in this statute by following the current, routine methods and not by giving the jury an instruction that provides them no guidance in their decision. Slip opinion at 5-6. The DCA concluded "that the procedural requirements in section 812.025 are unenforceable to the extent that the statute (1) attempts to establish a procedure by which a jury does not return a factual finding announcing a verdict of guilty on each of the two separately charged offenses despite its determination that the State has proven the offenses beyond a reasonable doubt and (2) requires the jury to make this selection without any legal criteria or factual basis." Slip opinion at 2. The DCA certified the issue to the Florida Supreme Court.
In ENSIGN v. STATE, No. 2D10-839 (Fla. 2d DCA Jul. 20, 2011), the DCA reversed a judgment of contempt. The DCA held that the "trial court failed to comply with the requirements of rule 3.840(g) by failing to inform [the alleged contemnor] of the accusation against him and by failing to ask him if he has any cause to show why sentence should not be pronounced. In addition, while the trial court gave [the alleged contemnor] an opportunity to make a statement regarding whether he prevented his stepdaughter from attending school, the trial court failed to give him an opportunity to present mitigating evidence in regard to his sentence." Slip opinion at 2. In addition the trial court's "order failed to include the requisite recital of facts constituting the contempt. While oral statements placed on the record may satisfy this requirement of rule 3.840(f)... the trial court failed to state on the record the facts supporting the trial court's finding of contempt".
Slip opinion at 2-3.
In JOHNSON v. STATE, No. 3D10-650 (Fla. 3d DCA Jul. 20, 2011), the DCA held that the trial court properly gave the aggressor exception to the Justifiable Use of Force self-defense jury instruction under § 776.041(2) Florida Statutes (2010) where evidence existed that the Defendant acted contemporaneously with the victim against whom the Defendant claimed self-defense.
