Florida/Georgia Personal Injury & Workers Compensation

...ly lesser included offense of manslaughter”). Here, Walton was charged with second-degree murder, with a sentencing enhancement because the victim was a law enforcement officer. See § 782.04(2), Fla. Stat. (2008) (attempted second-degree murder); § 782.065(2), Fla....

...dard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const. The Committee’s proposals derive from two referrals by the Court to the Committee. The first referral concerned instructions that pertain to section 782.065, Florida Statutes (2017), and was based upon Ramroop v....

...cusable or justified. See State v. Spencer, 216 So. 3d 481 (Fla. 2017). Turning to the individual instructions, we further amend instruction 6.2 by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), Florida Statutes, as well as the paragraph in the Comments section addressing the enhancement. Instead, a new paragraph is added to the -3- Comments section referencing instruction 6.7 for the section 782.065 reclassification enhancement, in light of Ramroop. Next, new instruction 6.7 pertains to the reclassification statute, section 782.065, Florida Statutes, and is based upon this Court’s decision in Ramroop. In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification: In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla....

...pertaining to “transferred intent” and adding a sentence to the Comments section providing that instruction 3.6(o) be given if the case involves transferred intent. In addition, the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), i.e., the definitions relevant to the enhancement, is deleted, as is the paragraph in the Comments section addressing the enhancement, and a -4- new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification. Instructions 7.3, 7.4, 7.5, and 7.6 are further amended by deleting the section of the instruction pertaining to the enhanced penalty pursuant to section 782.065(2), as is the paragraph in the Comments section addressing the enhancement, and a new sentence in the Comments section is added referring to instruction 7.13 for the section 782.065 reclassification....

...he Comments section to include a sentence providing that “mutual combat resulting in death is Manslaughter” citing to Eiland v. State, 112 So. 2d 415 (Fla. 2d DCA 1959). Finally, new instruction 7.13 covers the reclassification statute, section 782.065, Florida Statutes, and is based upon our decision in Ramroop. In the opening portion of the instruction, an italicized note to the trial judge explains what is required for the reclassification: In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla....

...a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted First Degree Premeditated Murder. -9-  § 782.065(2), Fla....

...021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge - 12 - requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. See Instruction 5.1 for the affirmative defense of renunciation. See Instruction 6.7 for the § 782.065, Fla....

...If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d) (Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...§ 782.04(3), Fla. Stat. Section § 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section § 782.04(3), Fla. Stat. Regarding the enhanced penalty under Fla. Stat. § 782.065 the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based - 16 - on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. A charging document that tracks the language of the Attempted First-Degree Premeditated Murder statute does not charge Attempted Felony Murder. See Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017). See Instruction 5.1 for the affirmative defense of renunciation. See Instruction 6.7 for the § 782.065, Fla....

...If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d) (Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...Comments Section § 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in section § 782.04(3), Fla. Stat. Regarding the enhanced penalty under Fla. Stat. § 782.065 the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. A charging document that tracks the language of the Attempted First-Degree Premeditated Murder statute does not charge Attempted Felony Murder. See Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017). See Instruction 5.1 for the affirmative defense of renunciation. - 20 -  See Instruction 6.7 for the § 782.065, Fla....

... If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted Second Degree Murder. § 782.065(2), Fla....

...Aggravated Assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065 the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. See Instruction 5.1 for the affirmative defense of renunciation. See Instruction 6.7 for the § 782.065, Fla....

...3d 1124], and 2017 [213 So. 3d 680], and 2018. - 27 -  6.7 ATTEMPTED MURDER — RECLASSIFIED (BY VICTIM’S EMPLOYMENT AS LAW ENFORCEMENT OFFICER, CORRECTIONAL OFFICER, ETC.) § 782.065, Fla. Stat. In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla....

...protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility. Lesser Included Offenses ATTEMPTED FIRST DEGREE PREMEDITATED MURDER RECLASSIFIED — 782.04(1), 777.04, and 782.065 CATEGORY ONE CATEGORY TWO FLA....

...INS. NO. Attempted First 782.04(1) and 6.2 Degree Premeditated 777.04 Murder Attempted Second 782.04, 777.04, 6.4 and Degree Murder – and 782.065 6.7 Reclassified Attempted Second 782.04(2) and 6.4 Degree Murder 777.04 Attempted 782.07 and 6.6 Manslaughter by Act 7...

...(intentionally cause and 777.04 5.1 bodily harm) - 30 -  Attempted felony 782.051(1) and 6.3 and murder - reclassified 782.065 6.7 Attempted felony 782.051(1) 6.3 murder Attempted felony 782.051(2) and 6.3 and murder -reclassified 782.065 6.7 Attempted felony 782.051(2) 6.3 murder Attempted felony 782.051(3) and 6.3(a) murder- reclassified 782.065 and 6.7 Attempted felony 782.051(3) 6.3(a) murder Aggravated battery 784.045 8.4 Felony batt...

...84.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments The reclassification in § 782.065, Fla....

...If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of First Degree Premeditated Murder. § 782.065(2), Fla....

...(2) 8.9 Culpable negligence 784.05(1) 8.9 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065 the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc....

...2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement - 36 - officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. If the case involves transferred intent, insert Instruction 3.6(o). See Instruction 7.13 for the § 782.065, Fla....

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...Aggravated assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge - 41 - requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. See Instruction 7.13 for the § 782.065, Fla....

...ad a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Second Degree Murder. - 43 -  § 782.065(2), Fla....

...Culpable negligence 784.05(2) 8.9 Culpable negligence 784.05(1) 8.9 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based - 46 - on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. See Instruction 7.13 for the § 782.065, Fla....

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...(Officer/Firefighter/ EMT/Paramedic) Third degree (felony) 782.04(4) 7.6 murder Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc....

...2d 691 (Fla. 1997), the Supreme Court held that knowledge of the - 50 - victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. *Avila v. State, 745 So. 2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State v. Montgomery, 39 So. 3d 252 (Fla. 2010). See Instruction 7.13 for the § 782.065, Fla....

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...Battery 784.03 8.3 Assault 784.011 8.1 - 54 -  Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. See Instruction 7.13 for the § 782.065, Fla....

...This instruction was adopted in 2017 [213 So. 3d 680] and amended in 2018. - 62 -  7.13 MURDER – RECLASSIFIED (BY VICTIM’S EMPLOYMENT AS LAW ENFORCEMENT OFFICER, CORRECTIONAL OFFICER, ETC.) § 782.065, Fla. Stat. In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla....

...protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility. Lesser Included Offenses FIRST DEGREE PREMEDITATED MURDER RECLASSIFIED — 782.04(1)(a) and 782.065 CATEGORY ONE CATEGORY TWO FLA....

...INS. NO. First Degree 782.04(1)(a) 7.2 Premeditated Murder Second Degree 782.04(2) and 7.4 and Murder – Reclassified 782.065 7.13 Second Degree 782.04(2) 7.4 Murder Manslaughter 782.07 7.7 Second Degree 782.04(3) and 7.5 and (Felony) Murder – 782.065 7.13 Reclassified Second Degree 782.04(3) 7.5 (Felony) Murder - 65 - Attempted Felony 782.051(1) and 6.3 and Murder - Reclassified 782.065 6.7 Attempted Felony 782.051(1) 6.3 Murder Attempted 782.041(1), 6.2 and Premeditated Murder - 777.04, and 6.7 Reclassified 782.065 Attempted 782.04(1) and 6.7 Premeditated Murder 777.04 Attempted Second 782.04(2), 6.4 and Degree Murder - 777.04, and 6.7 Reclassified 782.065 Attempted Second 782.04(2), 6.4 Degree Murder 777.04 Attempted Felony 782.05(2) and 6.3 and Murder- Reclassified 782.065 6.7 Attempted Felony 782.051(2) 6.3 Murder Third Degree Felony 782.04(4) and 7.6 and Murder - Reclassified 782.065 7.13 Third Degree Felony 782.04(4) 7.6 Murder Vehicular Homicide 782.071 7.5 Attempted Felony 782.051(3) and 6.3(a) Murder - Reclassified 782.065 and 6.7 Attempted Felony 782.051(3) 6.3(a) Murder Aggravated battery 784.045 8.4 Attempted 782.07 and 6.6 Manslaughter by Act 777.04 Felony battery 784.041(1) 8.5 Aggr...

...Battery 784.03 8.3 Culpable Negligence 784.05(2) 8.9 Culpable Negligence 8.9 Assault 784.011 8.1 - 66 -  Comments The reclassification in § 782.065, Fla....

...The offense arose as the result of a traffic stop during which Rivera was a passenger. When the officer walked around to the passenger side, Rivera shot the officer three times in the torso at close range. Rivera was charged in an amended information pursuant to sections 782.04(1), 777.04, 775.087, 775.0823, 784.07, and 782.065, Florida Statutes (2010), with one count of attempted first-degree murder of a law enforcement officer with a firearm during which Rivera discharged a firearm and caused great bodily harm....

...committed an enumerated offense and as a result of the discharge of a firearm the defendant caused great bodily harm, the defendant must be sentenced to a minimum term of twenty-five years in prison and not more than a term of life in prison. Under section 782.065, if the jury finds beyond a reasonable doubt that the defendant committed attempted first-degree murder and that the victim of the offense was a law enforcement officer engaged in the performance of a legal duty, the defendant must be sentenced to life in prison....

...In Ramroop, the Florida Supreme Court held “that section 782.066 is a reclassification statute that creates a substantive offense, which includes knowledge as ah essential element.” 214 So.3d:at 666. Because knowledge is an essential element, “a defendant may be subject to the increased sentence set forth in section 782.065 only when a jury finds beyond a reasonable doubt that the offense was committed with knowledge that the victim was a law enforcement officer.” Id. The supreme court determined that “the erroneous jury instructions that did not include knowledge as an essential element of attempted murder of a law enforcement officer as to section 782.065 amounted to fundamental error” and that Ramroop was entitled to a new trial....

...The State contended that resen-tencing for the underlying conviction without the reclassification regarding a law enforcement officer would be the usual remedy but that in this- particular case resentencing was unnecessary because the trial court- imposed a life sentence under both section 782.065 and section 775.087....

...term was twenty-five years and the maximum term was life. In fact, the State argued and the court reiterated that a life sentence was mandatory. Further, Rivera argues that in Ramroop the supreme court explained that because the life sentence under section 782.065 is a mandatory statutory punishment, “[i]t is no answer to say that the defendant could have received the same sentence with or without that fact.” Ramroop, 214 So.3d at 668 (quoting Alleyne v....

...In all six instructions, language is added for determining whether the homicide or attempted homicide victim was a law enforcement officer, correctional officer, or correctional probation officer engaged in the lawful performance of a legal duty as provided by section 782.065, Florida Statutes (2013)....

...If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted First Degree Murder. § 782.065(2), Fla....

...Assault Battery 784.011 784.03 8.1 8.3 Battery Assault 784.03 784.011 8.3 8.1 -9-  Comment Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 1994 [636 So....

...If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065(2), Fla....

...ed in section 782.04(3). Section 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section 782.04(3), Fla. Stat. Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 2007 [962 So....

...If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla. 2007). § 782.065(2), Fla....

...Comment Section 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in section 782.04(3). Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc....

...In Thompson v. - 17 - State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 2007 [962 So....

...If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted Second Degree Murder. § 782.065(2), Fla....

...Battery 784.03 8.3 Assault 784.011 8.1 - 22 -  Comment Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 1994 and amended in 1997 [697 So....

...If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of First Degree Premeditated Murder. § 782.065(2), Fla....

...- 28 -  Attempted voluntary 782.07 & 6.6 manslaughter 777.04 Comment Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 1981 and was amended in October 1981, and July 1997, and 2008 [994 So....

...If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Second Degree Murder. § 782.065(2), Fla....

...Battery Culpable 784.03 8.3 8.9 negligence 784.05(1) Assault 784.011 8.1 Comment Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. - 34 -  This instruction was adopted in 1981 and amended in 1997 [697 So....

...State has shown beyond a reasonable doubt that the error did not contribute to the verdict. Accordingly, we find that the error in admitting the photograph was harmless and, thus, does not warrant a new trial. III. The Jury’s Special Finding under Section 782.065, Florida Statutes (2013) At trial, the jury was given the following special instruction, entitled “AGGRAVATION OF A FELONY VICTIM LAW ENFORCEMENT OFFICER”: If you find that Gangapersad Ramroop committed the crime charged in count...

...ct that in the special verdict form. The jury found that Christopher Brillant was a law enforcement officer engaged in the lawful performance of a legal duty during Ramroop’s commission of the offense of attempted second-degree murder. Pursuant to section 782.065, Florida Statutes, the effect of the jury’s special finding ultimately removed the trial court’s discretion while sentencing Ramroop for attempted second-degree murder by increasing his maximum sentence for that count to mandatory life in prison without the eligibility of release. See § 782.065, Fla....

...jury instruction provided to the jury did not require it to find that Ramroop knew Officer Brillant was a law enforcement officer, the State argues, without much explication, that the court properly instructed the jury. The precise issue is whether section 782.065 requires the jury to find that Ramroop knew that the victim was a law enforcement officer before section 782.065 becomes operative. Section 782.065, Florida Statutes, provides as follows: Notwithstanding ss....

...ficer, auxiliary correctional officer, correctional probation officer, part-time correctional probation officer, or auxiliary correctional probation officer, as those terms are defined in s. 943.10, engaged in the lawful performance of a legal duty. § 782.065, Fla....

...Dep’t of Health, 898 So.2d 61, 64 (Fla.2005) (citation omitted). However, unlike interpreting language that actually exists in a statute, the plain language canon is far less useful when interpreting intent from a lack of language, as here. The language in section 782.065 does not specify whether knowledge of the victim’s status as a law enforcement officer is required....

...Looking beyond the plain language of the statute, we begin our analysis by reviewing the Florida Supreme Court’s earlier determination of whether section 784.07(3), Florida Statutes (1993), which, as discussed below, ultimately progressed to the statute at issue, section 782.065, required knowledge of the victim’s status as a law enforcement officer....

...of the language “pursuant to the sentencing guidelines” with the language “pursuant to s. 775.082, s. 775.083, or s. 775.084,” section 775.0823 remains unchanged to date. 6 See § 775.0823, Fla. Stat. (2013). In 2008, the Legislature enacted section 782.065, Florida Statutes. The preamble to the Council Substitute for House Bill that proposed the later-enacted statute states that it is “[a]n act relating to murder of law enforcement officers; creating 782.065, F.S.; providing a minimum mandatory sentence for certain offenses; providing an effective date.” Fla....

...justices, or judges. Fla. S. Comm, on Crim. Just., CS for SB 1064 (2008) Staff Analysis (Apr. 7, 2008); see also Fla. H.R. Comm, on Homeland Sec. & Pub. Saf., HB 321 (2008) Staff Analysis (Mar. 18, 2008). *595 However, the legislative history of section 782.065 does not provide any indication as to whether the Legislature intended to preclude knowledge of the victim’s status as a prerequisite to the enhanced penalty....

...Brady, 745 So.2d 954, 957 (Fla.1999) (“The offense of attempted second-degree murder does not require proof of the specific intent to commit the underlying act (i.e., murder).” (citing Gentry v. State, 437 So.2d 1097 (Fla.1983))). However, because section 782.065 should be construed within the context of the entire section, Thompson, 695 So.2d at 692 (citing Roberts, 685 So.2d at 1279 ), and it provides an across-the-board penalty enhancement for all murder offenses committed against a law enforcement officer, including attempted murder of a law enforcement officer, which is a specific intent crime, this implies that section 782.065 requires knowledge of the victim’s status as a law enforcement officer in all circumstances. Like former section 784.07(3), section 782.065 does not distinguish between specific intent crimes and general intent crimes. Therefore, knowing that the specific intent crime in section 782.065 implicitly requires knowledge of the victim’s status, to use the words of the Florida Supreme Court, it “would be illogical and unreasonable to require a factual finding that knowledge existed to convict under [one part]” but not the other. See Thompson, 695 So.2d at 692-93 . In addition, we find the substantial enhancement in penalty under section 782.065 to be meaningful. Normally, when a defendant is convicted of attempted second-degree murder, excluding other enhancements, the maximum possible sentence is fifteen years in prison. §§ 775.082(3)(c), 777.04(4)(c), 782.04(2), Fla. Stat. (2013). But under section 782.065, when a defendant is convicted of attempted second-degree murder and the jury also finds beyond a reasonable doubt that the victim was a law enforcement officer engaged in the lawful performance of a legal duty, the sentence dramatically increases to “life imprisonment without eligibility for release.” § 782.065, Fla....

...n Thompson , where the court found that, absent *596 some clear intent to the contrary, it would be incongruous not to require “guilty knowledge.” See 695 So.2d at 698 . Thus, the incongruity rationale provided in Thompson strongly suggests that section 782.065 requires guilty knowledge because the Legislature did not clearly provide that knowledge of the victim’s status is not required. See id. A comparison to other similar statutes also indicates that it would be incongruous for section 782.065 not to require knowledge of the victim’s status....

...(2013) (emphasis added). The same is true when the victim is a specified official or employee under section 784.081 or a code inspector under section 784.083. §§ 784.081(2), 784.083, Fla. Stat. (2013). In sum, many other statutes that are similar to section 782.065 require knowledge of the victim’s status; we find that section 782.065 should be interpreted similarly. 8 See ContractPoint, 986 So.2d at 1265-66 . Moreover, if the Legislature intended to make knowledge of the victim’s status not required under section 782.065, it could have included a provision stating as much....

...Relatedly, the Flori *597 da Supreme Court in Thompson interpreted section 784.07(8) as requiring knowledge even though subsection (3) did not specify whether knowledge was required. 695 So.2d at 698 . Section 784.07(3) was subsequently removed and reenacted in section 782.0823, and 782.065 was enacted in 2008 to “supersede” section 782.0823. Therefore, because the Legislature was presumptively aware of Thompson when it drafted section 782.065, it could have explicitly stated that knowledge of the victim’s status is not required under section 782.065 if that is what it intended....

...As stated in section 775.021, “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.” § 775.021(1), Fla. Stat. (2013). Accordingly, because it is unclear whether section 782.065 requires knowledge of the victim’s status, this court is obligated by the Legislature to interpret the statute as requiring knowledge. See Thompson, 695 So.2d at 693 . In sum, we hold that section 782.065 requires knowledge of the victim’s status as a law enforcement officer....

...ing knowledge. Thompson also suggests .that it would be unreasonable or illogical for the statute to implicitly require knowledge for the specific intent crime within the statute, but not for others. Additionally, although the legislative history of section 782.065 provides little guidance, the fact that many other reclassification statutes require knowledge of the victim’s status suggests that knowledge is required in section 782.065....

...Lastly, because the statute is ambiguous, this court must resolve the ambiguity in favor of the accused, which requires this court to hold that knowledge is required. Therefore, we find that the trial court’s imposition of a life sentence pursuant to section 782.065 was fundamental error because the jury did not find that Ramroop had knowledge that the victim was a law enforcement officer because it was not instructed to determine this issue. Accordingly, we vacate the jury’s special finding relevant to this issue. The next issue we must address is the effect of vacating the jury’s special finding under section 782.065 on Ram-roop’s convictions and sentences. Ram-roop argues that knowledge of the victim’s status is an essential element of the offense of second-degree murder of a law enforcement officer, requiring reversal of his conviction and sentence for that offense. His argument assumes that section 782.065 is a substantive offense. To address Ramroop’s argument, we must determine whether section 782.065 is a substantive offense, an enhancement provision, or a reclassification statute....

...9 As such, the court went on to find that an offense reclassified as a felony pursuant to section 784.07 could qualify as a felony offense for purposes of habitual felony offender status without violating double jeopardy. See id. at 1287-89. In this case, we find that section 782.065, Florida Statutes, is a reclassification statute....

...2531 , 159 L.Ed.2d 403 (2004), any fact that elevates the defendant’s maximum possible sentence, other than a prior conviction, must be found beyond a reasonable doubt by the jury, rather than by the judge. 10 Galindez v. State, 955 So.2d 517, 519 (Fla.2007). Here, section 782.065 can increase a defendant’s sentence beyond the maximum possible sentence of the substantive crime and is only applied following a jury’s finding that the defendant violated a particular subsection of section 782.04 or 782.051. As such, the statute, in and of itself, is not a substantive crime. Further, based on the Florida Supreme Court’s reasoning in Mills , section 782.065 is not an enhancement statute. Unlike the habitual felony offender statute, the prison releasee reoffender statute, and the mandatory minimum sentence for possession of a firearm statute, all of which are enhancement statutes, section 782.065 does not “cut across some or all criminal statutes.” See Mills, 822 So.2d at 1287 (quoting Brown, 476 So.2d at 662 ). Rather, like section 784.07, section 782.065 “reclassifies enumerated offenses committed against law enforcement officer[s].” See id. Specifically, as indicated above, section 782.065 only applies following certain violations of *599 the (attempted) homicide offenses in 782.04 and 782.051 and operates solely to reclassify such offenses committed against law enforcement officers as mandatory life felonies. Here, based on the jury’s special finding that Officer Brillant was an officer engaged in the lawful execution of his duties at the time of the attempted second-degree murder, Ramroop was sentenced pursuant to section 782.065 to life in prison without the eligibility of release....

...However, because the jury was not instructed to determine whether Ramroop had knowledge of Officer Brillant’s status as a law enforcement officer, his sentence for attempted second-degree murder is erroneous. Nevertheless, we do not vacate the underlying conviction. Rather, because section 782.065 operates as a reclassification statute, we remand solely for resentencing as to attempted second-degree murder without reclassification under section 782.065....

...this rule was followed with regard to statutorily defined crimes, even if the statute did not expressly include a knowledge requirement.” Id. (citing Staples v. United States, 511 U.S. 600, 605 , 114 S.Ct. 1793 , 128 L.Ed.2d 608 (1994)). . Further, interpreting section 782.065 to require knowledge of the victim’s status as a law enforcement officer does not contravene the legislative history and purpose of the statute....

...With respect to Ramroop’s first-degree murder conviction, Ramroop received a mandatory life sentence. With respect to the discharge of a firearm conviction, we find that Ramroop’s total sentence points on his Criminal Punishment Scoresheet is not affected by vacating the jury's special finding under section 782.065 because the severity level for that offense is not affected by whether the victim is a law enforcement officer....

case, the Florida Supreme Court held that section 782.065, Florida Statutes (2013), created a separate

...vs. STATE OF FLORIDA, Respondent. [March 30, 2017] PARIENTE, J. The conflict issue in this case is whether section 782.065, Florida Statutes (2013),1 creates a substantive criminal offense of attempted murder of a law enforcement officer that includes as an essential element that the defendant knew that the victim was a law enforcement officer. In Ramroop v. State, 174 So. 3d 584 (Fla. 5th DCA 2015), the Fifth District Court of Appeal held that section 782.065, titled “Murder; law enforcement officer, correctional officer, correctional probation officer,” requires knowledge but is a reclassification statute that “in and 1. The current version of this statute is identical to the 2013 version under which Ramroop was tried. See § 782.065, Fla....

...Const. The Fifth District correctly concluded that the jury instructions in Ramroop’s trial were erroneous by not requiring the jury to find that Ramroop knew that the victim was a law enforcement officer because knowledge is an essential element of the crime defined by section 782.065. However, the Fifth District incorrectly determined that section 782.065 is a reclassification statute that does not create a separate substantive offense. We conclude that section 782.065 is a reclassification statute that creates a substantive offense and, therefore, the proper remedy for the erroneous jury instructions in Ramroop’s case would have been to vacate both Ramroop’s convictions—attempted second-degree murder of a law enforcement officer and first-degree felony murder of another victim, which was based on the attempted second-degree murder conviction—and remand for a new trial. Because the Fifth District incorrectly determined that section 782.065 does -2- not create a separate substantive offense, it improperly remanded Ramroop’s case for resentencing on the lesser-included offense of attempted second-degree murder instead of ordering a new trial....

...In doing so, the Fifth District left intact the conviction of first-degree felony murder of a separate victim, for which a life sentence was also imposed. Id. Accordingly, we quash the Fifth District’s decision to the extent that it held that section 782.065 does not create a substantive offense and remand with directions to order a new trial on the charges of attempted second-degree murder of a law enforcement officer and first-degree felony murder.2...

...scene of an attempt[] to murder [Brillant]” in violation of section 782.04(1)(a)(2). Ramroop was separately charged by information with attempted first-degree murder of a law enforcement officer in violation of sections 782.04(1)(a)(1), 777.04, 782.065, 775.087(1), 775.087(2), and 775.0823, Florida Statutes....

...mroop of the first-degree felony murder of Hunter and the lesser-included offense of attempted second-degree murder of a law enforcement officer, which served as the underlying felony for the conviction of first-degree felony murder. As to section 782.065, the verdict form reflects that the jury made a special finding “that [the victim] was at the time of the offense a police officer for the City of Orlando in the lawful execution of his legal duties.” On appeal, the Fifth Distr...

...-5- at the time of the offense failed to also require the jury to find that Ramroop had knowledge of the victim’s status.” Ramroop, 174 So. 3d at 586. However, the Fifth District concluded that because section 782.065 is a reclassification statute that does not create a separate substantive offense, but rather “operates solely to reclassify ....

...finding and remand Ramroop’s case for resentencing on the lesser-included offense of attempted second-degree murder without reclassification. Ramroop, 174 So. 3d at 598-99. ANALYSIS The issue before us is whether section 782.065 creates a separate substantive offense....

...every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 476-77 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)) (citations omitted). This principle guides our analysis. -6-  The text of section 782.065 states in full: Murder; law enforcement officer, correctional officer, correctional probation officer.—Notwithstanding ss....

...rrectional officer, correctional probation officer, part-time correctional probation officer, or auxiliary correctional probation officer, as those terms are defined in s. 943.10, engaged in the lawful performance of a legal duty. § 782.065, Fla. Stat. (2013). Similar to section 782.065, section 784.07, titled “Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers: reclassification of offenses; minimum sente...

...enforcement officer that was listed on the verdict form as to Count 1 of the information in Ramroop’s trial. -7-  Subsection (3) of a former version of section 784.07 eventually became what is now section 782.065....

...statute, we begin our analysis by reviewing the Florida Supreme Court’s earlier determination of whether section 784.07(3), Florida Statutes (1993), which, as discussed below, ultimately progressed to the statute at issue, section 782.065, required knowledge of the victim’s status as a law enforcement officer....

...Therefore, taking Wright and Thompson together, it is clear that knowledge that the victim is a law enforcement officer is an essential element of the crime defined by section 784.07. Thus, relying on our case law regarding section 784.07, the Fifth District correctly held that “section 782.065 requires knowledge of the victim’s status as a law enforcement officer.” Ramroop, 174 So. 3d at 597. Accordingly, for a defendant to be convicted of the offense defined in section 782.065, the jury must find beyond a reasonable doubt that the defendant knew, when the offense was committed, that the victim was a law enforcement officer. Id.; see Thompson, 695 So. 2d at 693; see also Apprendi, 530 U.S. at 476- 77. -9-  Section 782.065, which sets forth the crime of attempted murder of a law enforcement officer, is functionally the same as section 784.07, which sets forth the crime of assault and battery on a law enforcement officer, except of course that the crime is different and the penalty for violating section 782.065 is a mandatory life sentence....

...1st DCA 2000), held that this same subsection actually creates a substantive offense dealing with assault or battery on a law enforcement officer. Darst, 816 So. 2d at 683. We acknowledge that, in Merritt, we stated that section 784.07, Florida Statutes (1995), the precursor to section 782.065, “is an enhancement statute rather than a statute creating and defining any criminal offense.” 712 So....

...the statement was erroneous. Thus, to the extent that our statement in Merritt misled the Fifth District, we now clarify this issue. In the case below, the Fifth District relied on our earlier decision in Mills, 822 So. 3d at 1287, to conclude that “section 782.065 operates as a reclassification statute” rather than an enhancement statute because it “does not ‘cut across some or all criminal statutes.’ ” Ramroop, 174 So....

...at 2161-62 (second and third emphasis added), overruling Harris v. United States, 536 U.S. 545 (2002). Therefore, the same principles that apply to treating section 784.07 as a substantive offense, requiring knowledge as an essential element, apply equally to section 782.065. Due to the knowledge requirement and - 13 - the fundamental, constitutional principles announced in Apprendi, a defendant may be subject to the increased sentence set forth in section 782.065 only when a jury finds beyond a reasonable doubt that the offense was committed with knowledge that the victim was a law enforcement officer. In other words, a defendant is not subject to the increased punishment under section 782.065 if he or she did not know that the victim was a law enforcement officer when he or she committed the offense. Thus, we hold that section 782.065 is a reclassification statute that creates a substantive offense, which includes knowledge as an essential element. PROPER REMEDY IN THIS CASE We now turn to determine the proper remedy for the erroneous jury instructions in Ramroop’s trial on an essential element of the crime of attempted murder of a law enforcement officer, charged under section 782.065....

...As the Fifth District stated, “because the jury was not instructed to determine whether Ramroop had knowledge of Officer Brillant’s status as a law enforcement officer, his sentence for attempted second-degree murder is erroneous.” Ramroop, 174 So. 3d at 599. The Fifth District concluded that because 782.065 was not a substantive offense, the appropriate remedy for failing to properly instruct the jury on the knowledge requirement was to reduce Ramrooop’s conviction to the lesser- included offense without reclassification under section 782.065....

...incorrect jury instruction.” Id. The State also relies on the United States Supreme Court’s decision in Alleyne as support for arguing that the Fifth District’s remedy was appropriate. However, because the life sentence accompanying section 782.065 is a mandatory statutory minimum punishment, the Fifth District’s remedy was inconsistent with 3....

...y that the defendant could have received the same sentence with or without that fact.” 133 S. Ct. at 2162-63. Thus, we conclude that Ramroop is entitled to a new trial. CONCLUSION We conclude that section 782.065 creates a separate substantive criminal offense. Therefore, the erroneous jury instructions that did not include knowledge as an essential element of attempted murder of a law enforcement officer as to section 782.065 amounted to fundamental error.4 Accordingly, we quash the Fifth District’s decision to the extent it is inconsistent with this opinion, vacate Ramroop’s convictions of attempted second-degree murder and first-degree felony murd...

...ial court should have reclassified the crimes to first-degree felonies, for which the statutory maximum prison term is 30 years. See § 775.082(3)(b), Fla. Stat. (2008). The State contends that the life sentences are permissible, nevertheless, under section 782.065, which creates the crime of attempted murder of a police officer and mandates a life sentence. See § 782.065(1), Fla. Stat. (2008). Indeed, both the charging document and the final judgment of conviction in this case label the pertinent crime “attempted murder of a police officer.” However, Appellant committed the attempted murders on September 10, 2008, and section 782.065 did not become effective until October 1, 2008....

...784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments See Instruction 7.13 for the § 782.065, Fla....

...Manslaughter (Officer/Firefighter/ EMT/Paramedic) Third degree (felony) 782.04(4) 7.6 murder Comments SeeSee Instruction 7.13 for the § 782.065, Fla....

...8.5 Aggravated assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments SeeSee Instruction 7.13 for the § 782.065, Fla....

...Aggravated assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments SeeSee Instruction 7.13 for the § 782.065, Fla....

...) 8.9 Culpable negligence 784.05(1) 8.9 Assault 784.011 8.1 - 12 -  Comments SeeSee Instruction 7.13 for the § 782.065, Fla....

...Notable changes include: (1) amendment of instructions 7.3, 7.5, and 7.6 to include language for determining whether the felony murder victim was a law enforcement officer, correctional officer, or correctional probation officer engaged in the lawful performance of a legal duty as provided by section 782.065, Florida Statutes (2013); (2) amendment of the aggravating circumstances section of instruction 7.11 to include the aggravating circumstances in section 921.141(5)(c), Florida Statutes (2013), pertaining to domestic violence injunc...

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065, Fla....

...784.03 BatteryAssault 784.03 8.38.1 784.011 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of May 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 1981 and was amended in 1985, 1992 [603 So....

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065, Fla....

...AT. INS. NO. NoneManslaughter* 782.07 7.7 Third degree (felony) 782.04(4) 7.6 murder Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of May 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. *Avila v....

...If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007). § 782.065, Fla....

...Aggravated assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of May 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. This instruction was adopted in 1981 and amended in 1992 [603 So....

...counts on the the lesser-included offenses of aggravated assault on a law enforcement officer. The court held a sentencing hearing in May 2024. The parties stipulated that Navarro was required to be sentenced to life in prison for Count 1 pursuant to section 782.065, Florida Statutes (2024), and that Counts 2-8 carried a minimum mandatory sentence of three years in prison....