NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT DAMON LEON PEWO, JR., ) ) Appellant, ) ) v. ) Case No. 2D13-4866 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed September 11, 2015. Appeal from the Circuit Court for Hendry County; William C. McIver, Senior Judge.

Jose Baez of The Baez Law Firm, Coral Gables, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.

SLEET, Judge. Damon Leon Pewo, Jr., appeals his conviction and sentence for s econddegree murder following a jury trial. On appeal, Pewo challeng es the standard jury instruction on insanity, arguing that the language in the instr uction improperly raised the- 2 - defense's burden of proof from "clear and convincing evidence" to "beyond a reasonable doubt." We disagree and affirm Pewo's conviction an d sentence. At trial, the State had the burden of proving that Pewo was gui lty of second-degree murder beyond a reasonable doubt. See Fla. Std. Jury Instr. (Crim.)

7.4. Pewo's sole defense at trial was that he was insane at th e time of the murder and unable to appreciate the consequences of his actions. Pursuant to the standard jury instruction on insanity, Pewo sought to establish this defense by clear and convincing evidence. The standard jury ins truction on insanity reads, in part: All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and o f such weight that it produces a firm belief, without hesitation, about the matter in issue. Fla. Std. Jury Instr. (Crim.) 3 .6(a). Pewo argues that this in struction improperly raised his burden of proof because this definition of the clear and co nvincing evidence standard is indistinguishable from the definition provided for the reasonable doubt standard. The standard jury instruction on reasonable doubt re ads, in part: 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, t hen the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. Fla. Std. Jury Instr. (Crim.) 3.7. Specifically, Pewo argues t hat the language requiring "a firm belief, without hesitation" in the clear and convincing ev idence instruction is- 3 - equivalent to the language requiring "an abiding conviction of guilt" which does not

"waver" or "vacillate" in the reasonable doubt instruction. Pe wo claims that because the language in the two instructions is similar, the jury was unabl e to distinguish between the two standards of proof when the instructions were read toge ther at trial. We disagree. The Florida Supreme Court addres sed this argument when it appro ved the recommended jury instruction used in Jimmy Ryce civil commitmen t proceedings, standard jury instruction 2.03. See Standard Jury Instructions -Criminal Cases (99-2), 777 So. 2d 366, 368 (Fla. 2000). In that instance, the propose d instruction defined clear and convincing evidence as "evidence that is precise, explicit, lacking in confusion, and of such weight that it produces in your mind a firm belief or c onviction, without hesitation, about the matter in issue." Id. In reviewing the instruction, the supreme court expressly considered whet her the proposed definition of c lear and convincing evidence overstated "the applicabl e burden of proof to a level equal to, or even higher than, the 'beyond a reasonable doubt' standard." Id. The supr eme court rejected this argument, stating, "We disagree, as the committee's proposed de finition of 'clear and convincing evidence' is consistent with the established caselaw definition of that term." Id.; see also In re Davey, 645 So. 2d 398, 404 (Fla. 1994); Slo mowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Standard jury instructions are published under the authority of the Florida Supreme Court and are presumed t o be correct. BellSouth Teleco mm., Inc. v. Meeks, 863 So. 2d 287, 292 (Fla. 2003) (citing Freeman v. State, 761 S o. 2d 1055, 1071 (Fla. 2000)). And the definition of clear and convincing evidence us ed in the standard- 4 - insanity instruction has been used in Florida for over thirty y ears. See, e.g., In re Hawkins, 151 So. 3d 1200, 1212 (Fla. 2014); Davey, 645 So. 2d a t 404 ("[T]he sum total of the evidence must be of sufficient weight to convince the tr ier of fact without hesitancy." (emphasis added)); Slomowitz, 429 So. 2d at 800 ("T he evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." (emphasis added)). The language used in the standard insanity instructio n mirrors the language used to define the clear and convincing evidence standard in Sl omowitz and Davey, which requires "a firm belief, without hesitation," in the mind s of the jurors. In this case, the State did not argue to the jury that the defe nse had a burden to prove that Pewo was insane at the time of the crime b eyond a reasonable doubt. And the court gave the jury each instruction in its pro per context. Accordingly,

we affirm Pewo's conviction and sentence.

Affirmed.

BLACK and MORRIS, JJ., Concur.