The defendant's motion argues that: 1) The standard jury instruction 3.10(5) is misleading because it implies the judge has discretion over sentencing when, if convicted as charged, the defendant faces a mandatory 20-year sentence under Florida's 10-20-life law with no judicial discretion. 2) The rule of lenity requires that ambiguous laws be interpreted in the defendant's favor, and the tension between the jury instruction and mandatory sentencing law should be resolved by informing the jury of the mandatory sentence. 3) Alternatively, the defendant proposes a new instruction informing the jury that the penalty for conviction is a mandatory prison sentence with no judicial discretion over the length.

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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR DADE COUNTY
STATE OF FLORIDA CRIMINAL DIVISION
Plaintiff
CASE#
JUDGE:
v.
Defendant
__________________/
DEFENDANT’S MOTION TO INSTRUCT THE JURY AS TO THE
MANDATORY PRISON PENALTY, AND TO STRIKE THE
STANDARD JURY INSTRUCTION 3.10(5)
COMES NOW, ___________, by and through attorneys Julio
Gomez, Esq., and Philip L. Reizenstein, Esq., moves this court to instruct
the jury as to the mandatory penalty for conviction for attempted first
degree murder with a firearm, aggravated assault with a firearm, to strike
standard jury instruction 3.10(5), and, in the alternative to informing the jury
of the mandatory penalty upon conviction, to give the jury the below listed
instruction. In support thereof, the Defendant would aver the following:
I. FACTS OF THE CASE
The Defendant was arrested on June 22, 2012 based on allegations,
not witnessed by police officers, relating to a discharge of a firearm from a
vehicle. During investigation of the case, complaining witnesses gave the
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police the name of ______ as the individual who discharged a firearm that
struck the vehicle they were in.
II. PENALTY UPON CONVICTION
_______is charged with attempted murder with a firearm.1
Because there is an allegation that _____discharged the firearm, upon
conviction this court must sentence _______to twenty years in prison under
Florida’s onerous and notorious “ten –twenty-life-“ law. See, §775.087(2)(a)
Fla. Stat. The court has no discretion in this matter to sentence the defendant
to less than twenty years in state prison if the defendant is convicted of
attempted first degree murder with a firearm, or the lesser included charge of
aggravated assault with a firearm.
III. FLORIDA STANDARD JURY INSTRUCTION 3.10(5).
Florida standard jury instruction 3.10(5) states:
5. Your duty is to determine if the defendant has been proven guilty or not,
in accord with the law. It is the judge's job to determine a proper sentence if
the defendant is found guilty.
The jury instruction is a canard. The instruction is patently misleading
on its face. If ________is convicted of either attempted murder with a
firearm, or the lesser crime of aggravated assault with a firearm, this court
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While the prosecution is certainly entitled to make strategic decisions in preparation for trial, it is
disconcerting to note that the charge of attempted murder was filed as an amended information well after
the case began, and after the defendant refused an initial plea offer of ten years prison for the lesser charge
of aggravated assault contained in the original information. Such prosecutorial conduct has ominous
overtones of punitive charging. See, U.S. Shaygan, 661 F.Supp 1289 (S.D. Fla, 2009)
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will not “determine a proper sentence”. Upon a finding of guilt, this court
will do nothing more than impose a legislatively mandated sentence that is
neither proper nor just for a twenty two year old young man who was facing
four thugs who threated to kill his mother and rape his girlfriend. There will
be no judicial “determination” of a “proper sentence”. The court will merely
impose a sentence previously determined by the Florida Legislature, with no
consideration of the facts of this particular case. While this court must
sentence ______if he is convicted as charged, this court does not need to
intentionally mislead the jury.
IV. FLORIDA RULE OF CRIMINAL PROCEDURE 3.390(a)
Florida Rule Of Criminal Procedure 3.390(a) states, in part:
“Except in capital cases, the judge shall not instruct the jury on the sentence
that may be imposed for the offense for which the accused is on trial.” 3.390
Fla. R. Crim. P.
V. THE RULE OF LENITY:
“The tie goes to the defendant.” United States v. Santos, 553 U.S. 507, 514,
128 S. Ct. 2020, 2025, 170 L. Ed. 2d 912 (2008),
There exists a tension between Florida Rule of Criminal Procedure
3.390(a), Florida’s ten-twenty-life mandatory sentencing law (§775.087(2)
(a) ) , and Florida standard jury instruction 3.10(5). While the court is
instructed not to inform the jury of the minimum mandatory penalty, the
court is also required to tell the jury a falsehood- that it will determine a
proper sentence, while the ten-twenty–life provisions of §775.087(2)(a)
removes all discretion from the court in sentencing in this case if ______is
convicted as charged.
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It is important to note that Rule 3.390(a) was adopted in 1972 and
amended in 1988 and 1992. The ten-twenty-life- law was implemented in
1999, twenty -seven years after 3.390 was adopted. Rule 3.390(a) is, quite
simply, outdated. Rule 3.390(a) allowed for a jury to be informed of the
twenty five year minimum mandatory sentence for first degree murder when
that sentence was applicable, but it inexplicably does not allow a jury to be
informed of a minimum mandatory five years less, in a case where no one
was injured.
The ten-twenty-life sentencing provision of 775.087(2)(a) also
obviates the distinction between _____being convicted of attempted murder
or aggravated assault. While aggravated assault is generally a lesser included
offense of attempted murder (and a less serious felony), the operation of
775.087(2)(a) erases the impact of a jury making a finding of guilt on a
“lesser” penalty because conviction of either crime carries the same penalty.
While _____ finds himself trying to navigate between Scylla and Charybdis,
the law in the form of jury instruction 3.10(5) not only ignores the rocky
shores of minimum mandatory sentences that defendants face, but also
overtly misleads the jury as to the consequences of their verdict. A fair
reading of 3.10(5) would lead any rational juror to conclude that upon a
finding of guilt, a wise and experienced jurist would consider the
defendant’s life, his prior record, and the particular facts of the case at bar,
before rendering a just and fair sentence. Those who practice criminal law in
Florida know that nothing could be further from the truth.
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This charade must end. More importantly, this court should not let
deceptive nature of the jury instruction prejudice the defendant’s trial by
misleading the jury. The defense requests this court to strike standard jury
instruction 3.10(5).
Florida’s Rule Of Lenity, codified in Florida Statute 775.20, states:
(1) The provisions of this code and offenses defined by other statutes shall
be strictly construed; when the language is susceptible of differing
constructions, it shall be construed most favorably to the accused.
Federal law is in accord with Florida Law: In U.S. v. Santos, 553 U.S.
507, 513, 128 S.Ct. 2020, 2025 (2008), Justice Scalia wrote for the court:
Under a long line of our decisions, the tie must go to the
defendant. The rule of lenity requires ambiguous criminal laws
to be interpreted in favor of the defendants subjected to them.
This venerable rule not only vindicates the fundamental
principle that no citizen should be held accountable for a
violation of a statute whose commands are uncertain, or
subjected to punishment that is not clearly prescribed. It also
places the weight of inertia upon the party that can best induce
Congress to speak more clearly and keeps courts from making
criminal law in Congress's stead. Because the “profits”
definition of “proceeds” is always more defendant-friendly than
the “receipts” definition, the rule of lenity dictates that it should
be adopted.
Standard jury instruction 3.10(5) has been negated and rendered void
ab initio from the moment in time the ten-twenty-life law was enacted. The
principle of the Rule Of Lenity prevents this court from giving standard
instruction 3.10(5).
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VI. PROPOSED JURY INSTRUCTIONS
While mindful of Fla. R. Crim. P. 3.390, the defense requests that this
court instruct the jury on the penalty for a conviction for attempted first
degree murder with a firearm or aggravated assault with a firearm.
In the alternative, the defense requests the following instruction:
I) The penalty by law for a finding of guilt for either the crime of
first degree murder with a firearm or aggravated assault with a
firearm, a lesser included charge, is the same. The penalty is a
mandatory prison sentence. The court must impose the
mandatory prison sentence and has no discretion to sentence the
defendant to any sentence less than the mandatory minimum
prison sentence.
WHEREFORE, The defense moves this court not to give standard
jury instruction 3.10(5) and to instruct the jury as to the twenty year
minimum mandatory sentence for a finding of guilt on the charges of first
degree murder with a firearm or aggravated assault with a firearm, or, to
instruct the jury with the defense proposed jury instruction.
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Respectfully submitted,
_______________________
Philip L. Reizenstein, Esq.
3191 Coral Way Suite 109
Suite 109
Miami, FL, 33145
Florida Bar# 634026
305-444-0755
Philip@miamicriminallaw.net
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing was sent
by email US Mail to the Dade County State Attorneys Office,
felonyservice@miamisao.com 1350 NW 12th Avenue, Miami, Fl, 33136-
2111, on this the 14th
day of July, 2014.
___________________________
Philip L. Reizenstein, Esq.
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