RANDY KENT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-5666

_____________________________/

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 ChiefCriminal 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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