Joseph John Anady v. State of Florida

FIRST DISTRICT C OURT OF A PPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-2811
_____________________________
JOSEPH JOHN ANADY,
Appellant,
v.
S TATE OF F LORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
John F. Simon, Jr., Judge.
December 23, 2025
EN B ANC
W INOKUR, J.
Joseph John Anady appeals his convictions and sentences for
sexual 	battery 	of 	a 	victim 	under 	twelve, 	lewd 	or 	lascivious
molestation of a victim under twelve, lewd or lascivious exhibition
in the presence of a victim less than sixteen, and battery of a child
by expelling seminal fluid. We affirm, and write only to address
Anady’s claim that the trial court fundamentally erred when it
failed 	to 	read 	Standard 	Jury 	Instruction 	(Crim.) 	3.7, 	which
addresses reasonable doubt and related matters, to the jury.

2
I
At 	the 	outset 	of 	jury 	selection, 	the 	judge 	informed 	the
prospective jurors that the State would be required to prove its
allegations 	beyond 	a 	reasonable 	doubt. 	It 	also 	provided 	the
prospective jurors a definition of reasonable doubt.1 Later in jury
selection, both the prosecutor and defense counsel described the
State’s burden of proof and asked potential jurors whether they
understood what that meant. After swearing in the jury, the court
gave initial instructions, where it reminded the jury about the
State’s 	burden 	of 	proof: 	“It 	is 	your 	solemn 	responsibility 	to
determine if the State proved its accusation beyond a reasonable
doubt against Mr. Anady, in accordance with the law that I provide
to you.” The court also explained that “[a]t no time is it the duty of
the defendant to prove his innocence.”
At trial, the evidence showed that police began investigating
Anady after the victim’s father reported his suspicion that Anady
was 	abusing 	his 	daughter. 	When 	the 	father 	worked 	on 	the
weekends, the victim’s sister and Anady (who was living with the
victim’s sister), babysat the victim. The sister left the victim alone
with Anady when she went to work. The victim testified that when
1 The court defined reasonable doubt as follows:
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 of 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, then
the charge is not proved beyond every reasonable doubt,
and you must find the defendant not guilty because the
doubt is reasonable.
All 	the 	prospective 	jurors 	indicated 	to 	the 	judge 	that 	they
understood the definition.

3
her sister was away, Anady would touch her butt with his private
part. The victim testified that Anady inserted his penis into her
butt and ejaculated on her before telling her to go wipe it off. The
victim testified that these abuses happened more than ten times.
Anady testified and denied all the allegations against him.
During the charge conference, neither party objected to the
trial court’s failure to include Standard Jury Instruction 3.7.
During its closing argument, the State repeatedly informed the
jury that it was the State’s burden to prove Anady guilty of each
element 	of 	the 	charged 	offenses 	beyond 	a 	reasonable 	doubt.
Anady’s counsel also mentioned the State’s burden repeatedly.
The jury found Anady guilty as charged. The court sentenced
him to consecutive life sentences on counts one and two, fifteen
years on count three, and five years on count four.
II
Anady argues in this appeal that the trial court’s failure to
read Standard Jury Instruction 3.7 constitutes fundamental error.
“[J]ury instructions are subject to the contemporaneous objection
rule[.]” Archer v. State, 673 So. 2d 17, 20 (Fla. 1996). Anady did not
object to the trial court’s failure to read Florida Standard Jury
Instruction 3.7, so he must show that fundamental error occurred.
See id. Fundamental error is one “which reaches down into the
validity of the trial itself to the extent that a verdict of guilty could
not have been obtained without the assistance of the alleged error.”
Id. (quoting State v. Delva, 575 So. 2d 643, 644–45 (Fla. 1991)).
Anady notes that several district court of appeal decisions
hold that omission of Standard Jury Instruction 3.7 constitutes
fundamental error. He also reminds this court that in many of
these prior cases, the State conceded error on appeal. The State in
this case chose not to concede error, arguing instead that, given
the facts of the case, the omission did not constitute fundamental
error. We agree with the State.

4
A
Standard Jury Instruction 3.7 essentially addresses three
matters: first, it informs the jury that the defendant maintains a
presumption of innocence; second, it informs the jury that the
State bears the burden to prove the defendant’s guilt beyond a
reasonable doubt; and third, it defines reasonable doubt.
While 	the 	trial 	court 	here 	did 	not 	give 	Standard 	Jury
Instruction 3.7 to the jury, in fact only the second of the three
matters is constitutionally required. Failure to instruct the jury
that 	the 	State 	must 	prove 	the 	defendant’s 	guilt 	beyond 	a
reasonable doubt is a constitutional violation. See Jackson v.
Virginia, 443 U.S. 307, 320 n.14 (1979) (“[F]ailure to instruct a jury
on the necessity of proof of guilt beyond a reasonable doubt can
never be harmless error.”). Indeed, the failure to do so is structural
error. See United States v. Davila, 569 U.S. 597, 611 (2013) (listing
as an example of structural error the “failure to convey to a jury
that guilt must be proved beyond a reasonable doubt”). But neither
instruction 	regarding 	the 	presumption 	of 	innocence 	nor 	a
definition of reasonable doubt is constitutionally required. If a trial
court fails to instruct or misinstructs on either of those two, then
an appellate court may find fundamental error, but only after
examining the record in its entirety. See Kentucky v. Whorton, 441
U.S. 786, 788 (1979) (approving its own reversal in an earlier case
that had been based “on the failure to give [an instruction on the
presumption of innocence] as it related to the overall fairness of
the trial considered in its entirety”).
B
While the Supreme Court of the United States has held that
“[t]he beyond a reasonable doubt standard is a requirement of due
process,” 	it 	has 	made 	it 	clear 	that 	“the 	Constitution 	neither
prohibits trial courts from defining reasonable doubt nor requires
them to do so as a matter of course.” Victor v. Nebraska, 511 U.S.
1, 5 (1994) (emphasis supplied).
To repeat, the Constitution does not require a court to define
reasonable doubt to a jury. “Indeed, so long as the court instructs
the jury on the necessity that the defendant’s guilt be proved

5
beyond a reasonable doubt, see [Jackson], the Constitution does
not require that any particular form of words be used in advising
the jury of the government’s burden of proof.” Victor, 511 U.S. at
5. Ultimately, the Court concluded in Victor that the instructions
at issue there did not define reasonable doubt in a manner that
violated the Constitution.2 Id. at 22–23.
Our supreme court has applied the holding of Victor to Florida
cases. See, e.g., Murray v. State, 3 So. 3d 1108, 1123 (Fla. 2009):
In Victor, the United States Supreme Court clarified that
the trial court is not required to, or prohibited from,
defining “reasonable doubt.” Instead, to comply with its
constitutional requirements, the trial court need only
instruct the jury “that the defendant’s guilt [must] be
proved beyond a reasonable doubt.” (citation omitted).
See also Archer, 673 So. 2d at 20 (“While the State must prove each
element of a crime beyond a reasonable doubt, our cases have not
found error when a jury is instructed on this standard but not given
a definition of the term.” (citing Victor, 511 U.S. 1 (emphasis
supplied)). Our supreme court understands that the failure to
define reasonable doubt does not, by itself, render a conviction
constitutionally infirm. See also Knight v. State, 53 So. 541 (Fla.
1910) (holding that it is not error to merely fail to define reasonable
doubt to the jury, when there is no request for it).
C
The Supreme Court of the United States discussed the effect
of the omission of an instruction regarding the presumption of
2 The Victor Court did conclude that “taken as a whole, the
instructions correctly conveyed the concept of reasonable doubt to
the jury.” Victor, 511 U.S. at 22 (quoting Holland v. United States,
348 U.S. 121, 140 (1954)). This is not, however, a requirement that
jury 	instructions 	define 	reasonable 	doubt. 	Rather, 	the 	Court
simply 	concluded 	that 	the 	instructions 	at 	issue 	did 	correctly
convey the concept—that is, they did not incorrectly convey the
concept—so they were not unconstitutional.

6
innocence in two cases: Taylor v. Kentucky, 436 U.S. 478 (1978),
and Whorton. In Taylor, the Court held that “on the facts of this
case” 	the 	omission 	of 	an 	“instruction 	on 	the 	presumption 	of
innocence resulted in a violation of [the defendant’s] right to a fair
trial[.]” Id. at 490. However, the following year the Court clarified
this ruling in Whorton. While the Court in Taylor had “reversed a
conviction resulting from a trial in which the judge had refused to
give a requested instruction on the presumption of innocence, the
Court did 	not there fashion 	a new rule of constitutional law
requiring that such an instruction be given in every criminal case.”
Whorton, 441 U.S. at 788 (emphasis supplied). “Rather, the Court’s
opinion [in Taylor] focused on the failure to give the instruction as
it related to the overall fairness of the trial considered in its
entirety.” Id. (emphasis supplied). The Court concluded as follows:
In short, the failure to give a requested instruction on the
presumption of innocence does not in and of itself violate
the Constitution. Under Taylor, such a failure must be
evaluated in light of the totality of the circumstances—
including all the instructions to the jury, the arguments of
counsel, 	whether 	the 	weight 	of 	the 	evidence 	was
overwhelming, and other relevant factors—to determine
whether the defendant received a constitutionally fair
trial.
Id. at 789 (emphasis supplied).
In short, the Constitution does not “absolutely require[] an
instruction 	on 	the 	presumption 	of 	innocence 	. 	. 	. 	in 	every
criminal case.” Whorton, 441 U.S. at 789–90. Instead, the omission
of such instruction must be analyzed for reversible error “in light
of the totality of the circumstances.” Id. at 790. “[T]otality of the
circumstances” is not limited to other jury instructions; it also
includes “the arguments of counsel, whether the weight of the
evidence was overwhelming, and other relevant factors[.]” Id. at
789.
Florida courts have also ruled that the unobjected-to omission
of 	an 	instruction 	on 	the 	presumption 	of 	innocence 	is 	not 	a
reversible 	error 	unless 	the 	appellant 	demonstrates 	that 	the
omission 	“caused 	fundamental 	unfairness.” 	McCrae 	v.

7
Wainwright, 439 So. 2d 868, 872 (Fla. 1983); see also Spells v.
State, 283 So. 2d 54, 55 (Fla. 4th DCA 1973) (holding that omission
of instruction on presumption of innocence was “harmless because
the remainder of that instruction adequately explains that the
presumption of innocence does not leave the defendant unless and
until every material allegation of the information has been proved
and that the indispensable quantum of proof is evidence to the
exclusion of and beyond every reasonable doubt”).
III
The 	record 	amply 	demonstrates 	that 	the 	jury 	was 	well
informed 	regarding 	the 	presumption 	of 	innocence 	and, 	more
importantly, the State’s burden to prove Anady’s guilt beyond a
reasonable doubt. This conclusion comes not only from statements
of 	the 	prosecutor 	and 	defense 	counsel 	during 	jury 	selection,
opening statements, and closing argument (though both counsel
repeatedly 	mentioned 	the 	presumption 	of 	innocence 	and 	the
State’s burden), but from the court’s own instruction to the jury.
During jury selection, the prosecutor and defense counsel
informed the jury selection panel multiple times that the State
bore the burden of proof, that its burden was by proof beyond a
reasonable doubt, and that Anady was presumed innocent. The
court also defined reasonable doubt for the panel.
The court’s opening instructions to the jury informed them
that they had a “solemn responsibility to determine if the State
proved its accusation beyond a reasonable doubt[,]” and that “[a]t
no time is it the duty of the defendant to prove his innocence.”
The jury was also repeatedly reminded during both closing
arguments that the State bore the burden to prove each element of
the charged offenses beyond a reasonable doubt.
During the final instructions to the jury, each time the court
gave the elements of a charged crime, or of a lesser-included crime,
it instructed the jury that “the State must prove the following
[elements] 	beyond 	a 	reasonable 	doubt.” 	The 	court 	read 	this
instruction nine times. Regarding lesser-included crimes, the court
instructed the jury that “if you decide the main accusation has not

8
been proved beyond a reasonable doubt, you will need to decide if
the 	defendant 	is 	guilty 	of 	any 	lesser 	crime.” 	The 	court 	also
instructed the jury that “if you return a verdict of guilty, it should
be for the highest offense on the verdict form for each count that
has been proven beyond a reasonable doubt. If you find that no
offense has been proven beyond a reasonable doubt, then, of
course, your verdict must be not guilty.”
In sum, the trial court’s instructions, as well as opening
statements and closing arguments, made clear that Anady was not
required to prove his innocence and that the burden was on the
State to prove the elements of the charged offenses beyond a
reasonable doubt. On this record, Anady cannot show that the
failure to give the standard jury instruction affected the jury’s
verdict or the fairness of the trial. No reasonable argument can be
made that the court failed to convey to the jury that it could not
find Anady guilty unless it concluded that the State proved his
guilt beyond a reasonable doubt, regardless of the exclusion of
Standard Jury Instruction 3.7.
IV
Anady points to several district court of appeal decisions
holding 	that 	the 	omission 	of 	Standard 	Jury 	Instruction 	3.7
constitutes fundamental error. See, e.g., Cavagnaro v. State, 117
So. 3d 1111, 1113 (Fla. 3d DCA 2012); Curry v. State, 169 So. 3d
1258, 1259 (Fla. 5th DCA 2015); Usry v. State, 284 So. 3d 1128,
1129–30 (Fla. 2d DCA 2019); and Ramirez v. State, 392 So. 3d 156,
158 (Fla. 4th DCA 2024). We find that these cases suffer from the
following deficiencies:
• 	The notion, on which these cases rest, that a trial court
fundamentally errs unless it reads a specific standard
jury 	instruction 	distorts 	the 	purpose 	and 	effect 	of
standard jury instructions.
• 	These cases ignore the decisions of the Supreme Court of
the United States germane to the issues raised, Victor
and Whorton, and rely instead on a dissenting opinion in
Arizona v. Fulminante, 499 U.S. 279 (1991).

9
• 	These cases do not properly address whether the omitted
instruction impacted the fundamental fairness of trial,
either by unjustifiably rejecting record evidence or by
implying that the omission constitutes fundamental error
per se, requiring reversal regardless of record evidence.
A
The cases Anady cites suggest that the jury will not know the
presumption of innocence or the State’s obligation to prove guilt
beyond a reasonable doubt unless the court reads Standard Jury
Instruction 3.7. Not only is this suggestion untrue (certainly in this
case), but it treats a standard jury instruction in a manner that
ignores our supreme court’s repeated admonitions regarding the
limitations 	of 	the 	standard 	instructions 	and 	its 	consequent
decision to discontinue its practice of authorizing them.
Prior to 2020, committees on standard jury instructions were
required to “prepare new and amended standard jury instructions
. . . and report those instruction changes to [the Florida Supreme]
Court, which, in turn, authorize[d] the instructions for publication
and use in a written opinion.” In re Amends. to Fla. Rules of Jud.
Admin., Fla. Rules of Civ. Proc., & Fla. Rules of Crim. Proc.–
Standard Jury Instructions, 407 So. 3d 1201, 1201–02 (Fla. 2020).
When 	authorizing 	instructions, 	the 	Court 	included 	a 	caveat
“explaining that by so authorizing the instructions the Court
expresses no opinion on the correctness of the instructions[.]” Id.
at 1202.
But in 2020, the Court found that, despite this caveat, “some
wrongly 	believe 	that 	by 	authorizing 	for 	publication 	and 	use
standard instructions prepared by the committees, the Court has
ruled on the legal correctness of those instructions.” In re Amends.,
407 	So. 	3d 	at 	1202–03. 	Therefore, 	the 	Court, 	to 	“avoid 	any
misconception that [it] has ‘adopted,’ ‘approved,’ or otherwise ruled
on the legal correctness of the standard jury instructions prepared
by the committees,” decided that it “should no longer be involved
in the development and authorization for use of Florida’s standard
jury instructions.” Id. at 1203. The Court then gave the jury
instructions committees authority to approve the instructions they
developed and specified that such instructions “are not approved

10
or otherwise specifically authorized for use by this Court[.]” Id. at
1205; see also Fla. R. Gen. Prac. & Jud. Admin. 2.580(c) (entitled
“No Supreme Court Approval or Presumption of Correctness[,]”
referring to standard jury instructions).
The import of this change is clear: standard jury instructions
are created by a committee to assist courts in instructing a jury,
and 	the 	supreme 	court 	has no 	part in 	them. 	Standard 	Jury
Instruction 3.7 is not a rule issued by the Supreme Court under its
constitutional authority to adopt rules of procedure. Nor is it a
statutory provision or even a passage drawn from an appellate
opinion. It is a recommendation from a committee—nothing more.
Therefore, a trial court is never required to use any particular
standard 	instruction. 	See 	Fla. 	R. 	Gen. 	Prac. 	& 	Jud. 	Admin.
2.580(a) (specifying that standard jury instructions “may” be used
by 	trial 	judges 	“unless 	the 	trial 	judge 	determines 	that 	an
applicable standard jury instruction is erroneous or inadequate, in
which event the judge shall modify the standard instruction or give
such other instruction as the trial judge determines to be necessary
to instruct the jury accurately and sufficiently”).
Given this background, the premise that a court not just errs,
but commits fundamental error, by neglecting to read to the jury
language that was drafted by and recommended by a committee,
without approval or authorization by the supreme court, turns a
suggestion into an obligation.
Of course, as stated above, jurors must be informed that the
State bears the burden to prove each element of the charged crime
beyond a reasonable doubt. But the jury in this case was amply
informed 	of 	this 	requirement, 	even 	without 	Standard 	Jury
Instruction 3.7. The fundamental fairness of this trial does not
turn on the omission of a committee-drafted standard instruction.
By holding that the exclusion of Standard Jury Instruction 3.7
constitutes fundamental error, the opinions noted above appear to
reflect 	our 	supreme 	court’s 	concern 	(the 	very 	concern 	that
motivated it to stop authorizing standard instructions) that “some”
were 	treating 	standard 	instructions 	as 	if 	they 	were
pronouncements 	from 	the 	supreme 	court, 	rather 	than
recommendations 	from 	a 	committee. 	Each 	of 	these 	opinions

11
includes the entirety of Standard Jury Instruction 3.7 verbatim, as
if every word of the standard instruction is a proclamation from on
high. We should not make the same mistake.3
B
The cases Anady mentions hold that Arizona v. Fulminante
supports their view that failure to read Standard Jury Instruction
3.7 constitutes fundamental error. See, e.g., Cavagnaro, 117 So. 3d
at 1113 (quoting Fulminante, 499 U.S. at 291); Curry, 169 So. 3d
at 1259 (same); Usry, 284 So. 3d at 1130 (same); Ramirez, 392 So.
3d at 158 (same). These cases mis-cite Fulminante, by improperly
stating that it ruled on a reasonable-doubt instruction. Fulminante
holds no such thing, because the provision cited was in fact a
dissent.
Fulminante held that the erroneous admission of a coerced
confession 	is 	subject 	to 	harmless 	error 	analysis 	on 	appeal.
Fulminante, however, was a plurality decision, with different
justices joining different parts of the various opinions. Part III of
Justice White’s opinion stated the following:
[I]t is impossible to assess the effect on the jury of the
omission 	of 	the 	more 	fundamental 	instruction 	on
reasonable doubt. In addition, omission of a reasonable-
doubt instruction, though a “trial error,” distorts the very
structure of the trial because it creates the risk that the
jury will convict the defendant even if the State has not
met its required burden of proof.
Fulminante, 	499 	U.S. 	at 	291. 	This 	is 	the 	passage 	cited 	by
Cavagnaro, Curry, Usry, and Ramirez.
3 In making this observation, we do not mean to disparage the
standard 	jury 	instructions 	or 	the 	committees, 	who 	perform
excellent 	work 	to 	create 	them 	and 	keep 	them 	accurate 	and
updated. 	The 	standard 	jury 	instructions 	are 	an 	exceptionally
useful tool for trial courts. But they are no more than suggestions.
While the matters they discuss are often legally required, the
standard instructions themselves carry no force of law.

12
Note that Justice White’s opinion deals with “omission of a
reasonable-doubt instruction,” which suggests that the jury was
not informed at all that the State bore the burden to prove the
defendant’s guilt beyond a reasonable doubt. Thus, if the court
instructs the jury that the State bears the burden to prove the
defendant’s guilt beyond a reasonable doubt, then Justice White’s
observation does not apply. More importantly, it does not suggest
that the court necessarily errs in failing to define reasonable doubt
(or in failing to note that the defendant is presumed innocent).
But there is a more fundamental issue regarding Part III of
Justice White’s opinion. Cavagnaro, Curry, Usry, and Ramirez
each cite this provision as if it constitutes the ruling of the
Supreme Court of the United States. In fact, Part III of Justice
White’s opinion was a dissent. See Fulminante, 499 U.S. at 282
(“Justice WHITE delivered an opinion, Parts I, II, and IV of which
are the opinion of the Court, and Part III of which is a dissenting
opinion.” (emphasis supplied)). Accordingly, these cases reached
their conclusions by misapplying Fulminante, treating a dissent as
the Court opinion. This misapplication may have led these courts
to the wrong conclusion.4
Finally, not only did the courts in Cavagnaro, Curry, Usry,
and Ramirez improperly cite a dissenting Supreme Court opinion
to support an incorrect conclusion, but none of them cited either
Victor, a Supreme Court case that does address the necessity of an
instruction defining reasonable doubt, or Whorton, a Supreme
4 While Cavagnaro, Curry, Usry, and Ramirez all rely on
Justice White’s dissent in Fulminante, they fail to recognize that
Justice White acknowledged that it was “possible to analyze as
harmless the omission of a presumption of innocence instruction
when the required reasonable-doubt instruction has been given[.]”
Fulminante, 	499 	U.S. 	at 	291. 	Thus, 	even 	Justice 	White’s
Fulminante dissent does not support the contention that omission
of 	a 	presumption 	of 	innocence 	instruction 	is 	error 	without 	a
prejudice analysis.

13
Court 	case 	that 	does 	address 	the 	necessity 	of 	an 	instruction
regarding presumption of innocence.
C
The district court of appeal decisions noted above defied the
rules established by Victor, Whorton, and similar cases, which held
that neither instruction on the presumption of innocence nor a
definition of reasonable doubt is always constitutionally required.
These decisions also improperly treat Standard Jury Instruction
3.7 as if it contained the only mention of the reasonable-doubt
standard in the instructions. We respectfully conclude that these
errors led the courts to incorrect results.
The earliest case Anady cites for the proposition that omission
of 	Standard 	Jury 	Instruction 	3.7 	is 	fundamental 	error 	is
Cavagnaro. The court there rejected the State’s argument that the
trial court gave a sufficient reasonable doubt instruction during
jury selection, concluding that “[p]rospective jurors are not the
sworn jurors who have actually heard the evidence and are then
given all of the instructions[.]” Cavagnaro, 117 So. 3d at 1113. The
State also argued that “counsel for the state and the defense
instructed the jury regarding proof beyond a reasonable doubt[,]”
which the court rejected because “the trial judge instructed the
jury not to follow the attorneys’ instructions on matters of law[.]”
Id.
Even 	if 	these 	observations 	were 	correct, 	they 	do 	not
necessarily foreclose a finding that omission of Standard Jury
Instruction 	3.7 	was 	not 	fundamental 	error. 	The 	purpose 	of
fundamental-error review is to determine whether the trial was
fundamentally unfair. See, e.g., Sparks v. State, 740 So. 2d 33, 35
(Fla. 1st DCA 1999) (“Fundamental error has been defined as error
that goes to the essence of a fair and impartial trial, error so
fundamentally unfair as to amount to a denial of due process.”).
Under this standard, we cannot completely dismiss information
provided to the jury prior to final jury instructions. Put another
way, we cannot ignore repeated references to the State’s burden
and 	to 	the 	reasonable 	doubt 	standard 	throughout 	trial 	in
determining whether the trial was fundamentally unfair. One
wonders 	why 	counsel 	would 	bother 	to 	mention 	burden 	and

14
standard to the jury (an almost-universal practice) if the jury were
bound to ignore them.
In fact, juries are not prohibited from listening to arguments
of counsel that state legal requirements. The Cavagnaro court cites
part of Standard Jury Instruction (Crim.) 2.7 for its conclusion that
juries are “not to follow the attorneys’ instructions on matters of
law[.]” Cavagnaro, 117 So. 3d at 1114 (emphasis in original). This
conclusion misstates the instruction. Standard Jury Instruction
2.7 does in fact say that “what the attorneys say is not evidence,
nor is it an instruction on the law,” but the Cavagnaro court
omitted the sentences in the standard instruction that follow:
“However, do listen closely to their arguments. They are intended
to aid you in understanding the case.” Fla. Std. Jury Instr. (Crim.)
2.7. In other words, while the court is the sole authority to instruct
the jury on the law, the jury is not forbidden to “follow” the law as
stated by counsel. If counsel makes an argument about the law
that is inconsistent with the court’s instructions, then the jury
must 	follow 	the 	instructions 	because 	an 	argument 	is 	not 	an
“instruction on the law.” But if counsel makes a statement about
the law that is not inconsistent with the instructions, then juries
are not required to ignore it, because “arguments . . . are intended
to aid [the jury] in understanding the case.” Here, none of the
statements 	of 	counsel 	regarding 	burden 	or 	standard 	were
inconsistent with the instructions the court gave the jury, or with
the omitted instruction. No principle of law requires the jury to
ignore the prosecutor or defense counsel when they mention legal
requirements while arguing how, in their view, the law applies to
the prosecution. This is especially true when we are attempting to
determine whether the trial was fundamentally unfair.5
5 This observation also applies to the definition of reasonable
doubt 	provided 	to 	the 	jury 	selection 	panel. 	Even 	though 	a
definition of reasonable doubt is not required, the question is not,
as the Cavagnaro court framed it, whether a panel of prospective
jurors is different than the jury panel. Instead, the question is
whether the jurors were aware of the correct standards by which
they 	were 	to 	judge 	Anady, 	such 	that 	his 	trial 	was 	not
fundamentally unfair. Categorically ignoring information because

15
More importantly, the Supreme Court of the United States
ruled in Whorton that we can consider “the arguments of counsel,”
as well as “all the instructions to the jury” and “other relevant
factors,” as part of the “the totality of the circumstances” in
determining whether the omission of a presumption-of-innocence
instruction was a constitutional violation. See Whorton, 441 U.S.
at 789. For this reason, we respectfully reject the conclusion of the
Cavagnaro court that these matters must be excluded from a
fundamental-error analysis.
Even if we had to exclude statements made during jury
selection, or even statements made by counsel during opening
statements or closing argument, as noted above the court in this
case instructed the jury both at opening instructions and in final
instructions that Anady was presumed innocent and that the State
had to establish his guilt beyond a reasonable doubt.
It also cannot be ignored that the Cavagnaro court relied on
Justice White’s dissenting opinion in Fulminante. See Cavagnaro,
117 So. 3d at 1113. The Cavagnaro court did not mention the
decisions of the Supreme Court of the United States in Victor or
Whorton. Nor did the Cavagnaro court mention the decision of the
Supreme Court of Florida in Murray. The court dismissed the
Supreme Court of Florida’s decision in Archer, refusing to apply it
because Archer involved a “truncated instruction.” Id. This last
point, regarding Archer, exposes a distinction without a difference.
Regardless of whether the instruction was “truncated,” it omitted
the 	definition 	of 	reasonable 	doubt, 	which 	the 	Archer 	court
explicitly stated was not error as long as the jury was instructed
that the State had to find the defendant guilty beyond a reasonable
doubt. In short, Cavagnaro fails to recognize applicable cases from
the Supreme Courts of the United States and of Florida and does
not 	properly 	determine 	whether 	the 	appellant’s 	trial 	was
fundamentally unfair.
Curry also involved omission of Standard Jury Instruction 3.7
during the final charge. See Curry, 169 So. 3d at 1259. The State
it was provided at jury selection rather than in final instructions
does not promote this effort.

16
conceded error, and the court stated, “[w]e can think of little more
fundamental in a criminal trial than instructing the jury on the
State’s burden of proof beyond a reasonable doubt.” 	Id. This
observation 	is 	true, 	but 	it 	does 	not 	mean 	instruction 	of 	the
presumption of innocence or on the definition of reasonable doubt
are likewise fundamental; as stated above, they are not. We do not
know whether the jury in Curry was otherwise instructed that the
State bears the burden of proving the appellant’s guilt beyond a
reasonable doubt. Again, the Curry court treated Standard Jury
Instruction 3.7 as if it is the only mention of the reasonable-doubt
standard 	that 	a 	jury 	ever 	hears. 	In 	addition 	to 	relying 	on
Cavagnaro, the court in 	Curry 	also relied on Justice White’s
dissenting opinion in Fulminante. See id. at 1259. Curry did not
mention Victor, Whorton, Murray, or Archer.
Usry involved the same issue. See Usry, 284 So. 3d at 1129.
Again, the State conceded error. Id. In reaching its decision, the
court relied on Cavagnaro, Curry, and Justice White’s dissenting
opinion in Fulminante. See id. at 1130. Usry did not mention
Victor, Whorton, Murray, or Archer either.
The 	court 	in 	Ramirez, 	confronted 	with 	the 	same 	issue,
concluded, 	“we 	draw 	from 	[Cavagnaro, 	Curry, 	and 	Usry] 	the
principle that a defendant has a fundamental right to have the full
and complete instructions, embodied in Standard Jury Instruction
3.7, given during the final charge to the jury.” Ramirez, 392 So. 3d
at 158. In other words, the Ramirez court ruled explicitly that a
defendant not only has a fundamental right to instruction on the
presumption of innocence and a definition of reasonable doubt—
despite 	contrary 	supreme 	court 	cases—but 	also 	that 	these
instructions must be provided by way of a committee-written
suggested instruction. The Ramirez court waved away the State’s
argument that other instances during the trial, where the jury was
instructed on the presumption of innocence and reasonable doubt,
showed 	that 	the 	absence 	of 	Standard 	Jury 	Instruction 	3.7
demonstrated that fundamental error did not occur, because these
instructions were not “a proper substitute” for Standard Jury
Instruction 3.7. Id. As stated above, we cannot base fundamental
error 	on 	the 	omission 	of 	a 	committee-written 	suggestion 	by
ignoring other instructions given to the jury on the presumption of
innocence and reasonable doubt.

17
Finally, like the courts in Cavagnaro, Curry, and Usry, the
Ramirez court relied on Justice White’s dissenting opinion in
Fulminante and did not mention Victor, Whorton, Murray, or
Archer.
This Court has also ruled in two cases that the omission of
Standard Jury Instruction 3.7 constitutes fundamental error. See
Burnette v. State, 103 So. 3d 1059 (Fla. 1st DCA 2013); Williams v.
State, 292 So. 3d 1288 (Fla. 1st DCA 2020). Burnette accepted the
State’s concession of error based on Cavagnaro. Burnette includes
no facts, other than that the court neglected to give Standard Jury
Instruction 3.7. Nor does Burnette contain any analysis of the
issue. The same is true of Williams, which reversed with nothing
more than a citation to Burnette. It clearly appears that Burnette
and Williams did nothing more than perpetuate the errors made
in Cavagnaro. Accordingly, they were wrongly decided.
V
In summary, the district court decisions noted above include
numerous 	errors. 	Those 	decisions 	gave 	improper 	effect 	to 	a
standard jury instruction, treated a dissenting opinion as the
opinion of the Supreme Court of the United States, failed to
recognize that neither instruction on presumption of innocence nor
a definition of reasonable doubt is constitutionally required, and
failed to give proper effect to instances throughout trial where the
jury was informed of the presumption of innocence and the State’s
burden to prove the defendant’s guilt beyond a reasonable doubt.
Omission of a committee-drafted recommended instruction, by
itself, does not show that a defendant suffered a fundamentally
unfair trial. As the record in this case clearly shows, the jury was
well informed that it could not find Anady guilty of anything unless
the State proved his guilt beyond a reasonable doubt. Therefore,
Anady’s claim of fundamental error fails. We affirm, and we certify
conflict 	with 	the 	decisions 	in 	Cavagnaro, 	Curry, 	Usry, 	and
Ramirez.
AFFIRMED, C ONFLICT CERTIFIED.
O STERHAUS, C.J., and L EWIS, B ILBREY, K ELSEY, M.K. T HOMAS,
N ORDBY, T ANENBAUM, L ONG, and T READWELL , JJ., concur.

18
B ILBREY, J., specially concurs with an opinion in which KELSEY, J.,
joins.
R OWE, J., concurs in part and dissents in part with an opinion in
which R OBERTS, R AY, and T ANENBAUM, JJ., join.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
B ILBREY, J., specially concurring.
I fully concur in the en banc majority opinion. Judge Winokur
correctly points out that fundamental error always occurs when a
jury is not instructed that a defendant’s guilt must be proven
beyond a reasonable doubt, but that failure to instruct a jury on
the presumption of innocence or to define reasonable doubt is not
fundamental error in every instance. 	I write to address two
additional points.
First, failing to correctly instruct a jury on reasonable doubt
remains reversible error, and in some instances fundamental
error. 	If 	a 	defendant 	requests 	that 	the 	jury 	be 	accurately
instructed on the definition of reasonable doubt, it would be error
for a trial court to fail to do so. 	Barwicks v. State, 82 So. 3d 356,
358 (Fla. 1955) (On Petition for Rehearing); see also Shiver v. State,
27 So. 36, 40 (Fla. 1899). And it would be fundamental error if an
instruction to the jury on reasonable doubt was “suggestive of a
higher degree of doubt than that required under the reasonable
doubt standard.” Murray v. State, 3 So. 3d 1108, 1123 (Fla. 2009)
(citing Cage v. Louisiana, 498 U.S. 39, 41 (1990)); see also Bove v.
State, 670 So. 2d 1066, 1069 (Fla. 4th DCA 1996).
Second, had Anady’s defense counsel asked for Standard Jury
Instruction 3.7, the jury would have been told in part:

19
The defendant has entered a plea of not guilty. This
means you must presume or believe the defendant is
innocent. 	The presumption stays with the defendant as
to 	each 	material 	allegation 	in 	the 	[information]
[indictment] through each stage of the trial unless it has
been overcome by the evidence to the exclusion of and
beyond a reasonable doubt.
To 	overcome 	the 	defendant’s 	presumption 	of
innocence, the State has the burden of proving the crime
with which the defendant is charged was committed and
the defendant is the person who committed the crime.
Perhaps there is a strategic reason why competent defense
counsel would not want this instruction on the presumption of
innocence given to the jury in every case, but such a reason eludes
me. 	See, e.g., Johnson v. State, 301 So. 3d 443, 447 (Fla. 1st DCA
2020) (quoting Occhicone v. State, 768 So. 2d 1037, 1048 (Fla.
2000)) (“It is well-settled that ‘strategic decisions do not constitute
ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable
under the norms of professional conduct.’”).
“The principle that there is a presumption of innocence in
favor 	of 	the 	accused 	is 	the 	undoubted 	law, 	axiomatic 	and
elementary, and its enforcement lies at the foundation of the
administration of our criminal law.” 	Coffin v. United States, 156
U.S. 432, 453 (1895). Unless there was a sound strategic rationale,
failing 	to 	have 	the 	jury 	instructed 	on 	the 	foundational 	legal
principle of the presumption of innocence is ineffective assistance
of counsel. See, e.g., Mathis v. State, 973 So. 2d 1153, 1156–57 (Fla.
1st DCA 2006) (holding that failure to request a jury instruction
can result in ineffective assistance of counsel).
If ineffective assistance of counsel has occurred, a defendant
still must show that had there not been ineffective assistance
“there is a reasonable probability that the outcome would have
been different.” 	Mathis, 973 So. 2d at 1156–57 (citing Strickland
v. Washington, 466 U.S. 668, 687–88 (1984)). Here, however, since
no fundamental error occurred, no claim of ineffective assistance
of trial counsel is before us. 	See Steiger v. State, 328 So. 3d 926,
928 (Fla. 2021) (holding that in absence of fundamental error, an

20
ineffective assistance of trial counsel claim could not be raised on
direct 	appeal). 	So 	we 	cannot 	address 	whether 	ineffective
assistance of counsel occurred here when the jury was not given
Standard Jury Instruction 3.7 or whether Anady was prejudiced
by any ineffective assistance.
R OWE, J., concurring in part and dissenting in part.
I 	concur 	in 	the 	majority 	opinion. 	I 	dissent 	from 	the
certification of conflict.
_____________________________
Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.
James 	Uthmeier, 	Attorney 	General, 	and 	Adam 	B. 	Wilson,
Assistant Attorney General, Tallahassee, for Appellee.