Professional Documents
Culture Documents
INSTRUCTIONS AMENDED
1981 REVISION
LIOS
7.1
30, 31
7.11
OPINIONS
INSTRUCTIONS AMENDED
2.5 (formerly 3.10), 8.6, 8.7, 8.10, 8.11, 8.12, 8.13, 11.1, 11.2,
11.3, 11.4, 11.5, 11.6, 11.11, 21.1, 21.2
7.11
7.11
OPINIONS
INSTRUCTIONS AMENDED
3.13 (formerly 2.09), 8.20, 11.2, 11.3, 11.4, 13.1, 14.1, 26.2,
26.3, 26.4, 26.5, 26.6, 26.7, 26.8
7.7
14.1
3.6(f), 3.6(g)
3.6(g)
OPINIONS
INSTRUCTIONS AMENDED
6.3, 6.3(a),8.4, 8.4(a), 8.10, 8.11, 8.12, 8.13, 8.14, 10.16, 11.1,
13.1, 13.5(a), 13.4(b), 14.2, 14.3, 20.14, 20.15, 20.16, 20.18,
26.1
25.2, 25.3, 25.4, 25.5, 25.6, 25.7, 25.8, 25.9, 25.10, 25.11,
25.12, 25.13, 25.14, 25.15, 25.16. 11.10(a), 11.10(b)
2.4, 2.7, 3.3(f), 3.8(a), 8.18, 8.19, 11.11, 14.5, 14.6, 21.5, 21.6,
28.13
3.6(f), 3.6(g), 11.10, 28.6, 28.7, 28.8, 28.81, 28.83, 28.85, 29.13,
29.15, 29.16
2.11
11.16, 11.16(a)
20.13, 20.17
13.1, 14.1
8.7(b), 11.2, 11.3, 11.6, 23.1, 23.2, 23.3, 23.4, 23.5, 23.6, 23.7,
23.8, 23.9
21.1
21.2
7.7
OPINIONS
INSTRUCTIONS AMENDED
28.1(a)
7.11
7.7
11.8, 11.9, 11.10, 11.11, 23.1, 23.2, 23.3, 23.4, 23.5, 23.6, 23.7
7.3
7.7 Manslaughter
2.13, 3.8(a), 3.10, 13.3, 13.4, 14.8, 16.4(a), 24.6, 28.14, 28.15,
28.16, 28.17, 29.14
SUMMARY OF CONTENTS
PART ONE: GENERAL INSTRUCTIONS
1
2
3
4
Inchoate Crimes
Attempted Homicide
Homicide
Assault and Battery
Kidnapping
Weapons Offenses
Sex Offenses
Arson and Criminal Mischief
Burglary and Trespass
Theft and Dealing in Stolen Property
Robbery
Child Abuse
Forgery and Worthless Checks
Perjury
Bribery
Fraud
Obstruction of Justice
Gambling
Prostitution
Obscenity
Drug Abuse
Racketeering
Escape
Transportation Offenses
Miscellaneous Crimes
Appendix
Schedule of Lesser Included Offenses
TABLE OF CONTENTS
PART ONE: GENERAL INSTRUCTIONS
Qualifications Instruction
1
3.6(a) Insanity
3.6(b) Insanity Hallucinations
3.6(c) Insanity Psychotropic Medication
3.6(d) Voluntary Intoxication
3.6(e) Involuntary Intoxication [Reserved]
3.6(f) Justifiable Use of Deadly Force
3.6(g) Justifiable Use of Nondeadly Force
3.6(h) Justifiable Use of Force by Law Enforcement Officer
3.6(i) Alibi
3.6(j) Entrapment
3.6(k) Duress or Necessity
3.6(l) Independent Act
3.7
Plea of Not Guilty; Reasonable Doubt; and Burden of Proof
3.8
Evidence
3.8(a) Evidence of Other Crimes, Wrongs, or Acts "Williams Rule"
3.8(b) Conviction of Certain Crimes as Impeachment
3.8(c) Disregarding Evidence [Reserved]
3.8(d) Date of Crime
3.8(e) Venue
3.9
Weighing the Evidence
3.9(a) Expert Witnesses
3.9(b) Accomplice
3.9(c) Defendant Testifying
3.9(d) Defendant Not Testifying
3.9(e) Defendant's Statements
3.10
Rules for Deliberation
3.11
Cautionary Instruction
3.12
Verdict
3.12(a) Single Defendant, Multiple Counts or Informations
3.12(b) Single Count, Multiple Defendants
3.12(c) Multiple Counts or Informations, Multiple Defendants
3.12(d) Legally Interlocking Counts
3.13
Submitting Case to Jury
Supplemental Instructions
4.1
Jury Deadlock
4.2
Instruction Upon Discharge of Jury
4.3
Answers to Juror Inquiries During Deliberations
Inchoate Crimes
5.1
Attempt to Commit Crime
5.2
Criminal Solicitation
5.3
Criminal Conspiracy
Attempted Homicide
6.1
Introduction to Attempted Homicide
6.2
Attempted Murder First Degree (Premeditated)
6.3
Attempted Felony Murder [Enumerated] [Non-Enumerated]
6.3(a) Attempted Felony Murder Injury Caused by Another
6.4
Attempted Second Degree Murder
6.5
Attempted Felony Murder Third Degree
10
9
10
6.6
Attempted Voluntary Manslaughter
Homicide
7.1
Introduction to Homicide
7.2
Murder First Degree
7.3
Felony Murder First Degree
7.4
Murder Second Degree
7.5
Felony Murder Second Degree
7.6
Felony Murder Third Degree
7.7
Manslaughter
7.8
Driving Under the Influence Manslaughter
7.8(a) Boating Under the Influence Manslaughter
7.9
Vehicular or Vessel Homicide
7.10
Excusable Homicide [deleted]
7.11
Penalty Proceedings Capital Cases
7.12
Dialogue for Polling the Jury
Assault and Battery
8.1
Assault
8.2
Aggravated Assault
8.3
Battery
8.4
Aggravated Battery
8.4(a) Aggravated Battery (Pregnant Victim)
8.5
Felony Battery
8.5(a) Domestic Battery by Strangulation
8.6
Stalking
8.7
Aggravated Stalking
8.7(a) Aggravated Stalking Fla.Stat. 784.048(3)
8.7(b) Aggravated Stalking (Injunction Entered) Fla.Stat. 784.048(4)
8.8
Aggravated Stalking (Victim under 16 years of Age)
8.9
Culpable Negligence
8.10
Assault on Law Enforcement Officer, Firefighter, Etc.
8.11
Battery on Law Enforcement Officer, Firefighter, Etc.
8.12
Aggravated Assault on Law Enforcement Officer, Firefighter, Etc.
8.13
Aggravated Battery on Law Enforcement Officer, Firefighter, Etc.
8.14
Aggravated Battery on Person 65 years of Age or Older
8.15
Aggravated Assault on Person 65 years of Age or Older
8.16
Battery on Person 65 years of Age or Older
8.17
Assault on Person 65 years of Age or Older
8.18
Violation of Domestic Violence Injunction
8.19
Violation of Repeat Violence, Sexual Violence, or Dating Violence Injunction
8.20
Battery on Facility Employee
Kidnapping
9.1
Kidnapping
9.2
False Imprisonment
Weapons Offenses
10.1
Carrying Concealed Weapons
10.2
Possession without a License [Reserved]
10.3
Persons Engaged in Criminal Offense Having Weapon
10.4
Persons Engaged in Criminal Offense Having Weapon (Previous Conviction)
10.5
Improper Exhibition of a Weapon
10.6
Discharging Firearm in Public
10.6(a) Discharging a Firearm from a Vehicle Within 1,000 Feet of a Person
11
10.7
11
12
12
13
14
15
16
13
16.7
16.8
14
21.4
21.5
21.6
21.7
22
23
24
25
15
25.9
25.10
25.11
25.12
25.13
25.14
25.15
26
27
28
Trafficking in Cannabis
Trafficking in Cocaine
Trafficking in Illegal Drugs
Trafficking in Phencyclidine
Trafficking in Methaqualone
Drug Abuse Use or Possession of Drug Paraphernalia
Drug Abuse Delivery, Possession with Intent to Deliver, or Manufacture with
Intent to Deliver Drug Paraphernalia
25.16 Drug Abuse Delivery of Drug Paraphernalia to a Minor
25.17 Contraband in County Detention Facility
25.18 Contraband in Juvenile Facility
25.19 Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of
Counterfeit-Resistant Prescription Blanks for Controlled Substances
Racketeering
26.1
Racketeer Influenced and Corrupt Organizations Act (RICO) [Reserved]
26.2
RICO Use or Investment of Proceeds from Pattern of Racketeering Activity
26.3
RICO Use or Investment of Proceeds from Collection of Unlawful Debt
26.4
RICO Acquisition or Maintenance Through Pattern of Racketeering Activity
26.5
RICO Acquisition or Maintenance Through Collection of Unlawful Debt
26.6
RICO Conduct of or Participation in an Enterprise Through Collection of Unlawful
Debt
26.7
RICO Conduct of or Participation in an Enterprise Through a Pattern of Racketeering
Activity
26.8
Conspiracy to Engage in Pattern of Racketeering Activity
Escape
27.1
Escape
Transportation Offenses
28.1
Driving Under the Influence
28.1(a) Driving Under the Influence Causing Property Damage or Injury
28.2
Felony Driving Under the Influence
28.3
Driving Under the Influence Causing Serious Bodily Injury
28.4
Leaving the Scene of a Crash Involving Death or Injury
28.5
Reckless Driving
28.5(a) Racing on a Highway
28.6
Fleeing to Elude a Law Enforcement Officer
28.7
Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated)
28.8
Fleeing to Elude a Law Enforcement Officer
(Siren and lights activated with high speed or reckless driving)
28.81 Fleeing To Elude a Law Enforcement Officer
(Siren and lights activated with high speed or reckless driving causing serious
bodily injury or death)
28.82 Aggravated Fleeing or Eluding
(Leaving a Crash Involving Injury or Death then Causing Serious Bodily
Injury or Death)
28.83 Aggravated Fleeing or Eluding
(Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious
Bodily Injury or Death)
28.84 Aggravated Fleeing or Eluding
(Leaving a Crash Involving Injury or Death then Causing Injury or Property Damage
to Another)
28.85 Aggravated Fleeing or Eluding
16
29
Appendix
Schedule of Lesser Included Offenses
Note: Please see committee caveat for the Schedule of Lesser Included Offenses
17
1.1
1.2
1.3
1.4
1.5
1.6
Qualifications Instruction
Introduction
Jury Selection [Reserved]
Challenges to Jurors [Reserved]
Statement of the Charge [Reserved]
Questioning in Capital Cases [Reserved]
Note Taking by Jurors
18
QUALIFICATIONS INSTRUCTION
Many of you have cell phones, computers, and other electronic devices. Even though you
have not yet been selected as a juror, there are some strict rules that you must follow about using
your cell phones, electronic devices and computers. You must not use any device to search the
Internet or to find out anything related to any cases in the courthouse.
Between now and when you have been discharged from jury duty by the judge, you must
not provide or receive any information about your jury service to anyone, including friends, coworkers, and family members. You may tell those who need to know where you are that you have
been called for jury duty. If you are picked for a jury, you may tell people that you have been
picked for a jury and how long the case may take. However, you must not give anyone any
information about the case itself or the people involved in the case. You must also warn people not
to try to say anything to you or write to you about your jury service or the case. This includes faceto-face, phone or computer communications.
In this age of electronic communication, I want to stress that you must not use electronic
devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing,
posting information on a website or chat room, or any other means at all. Do not send or accept
any messages, including e-mail and text messages, about your jury service. You must not disclose
your thoughts about your jury service or ask for advice on how to decide any case.
After you are called to the courtroom, the judge will give you specific instructions about
these matters. A judge will tell you when you are released from this instruction. All of us are
depending on you to follow these rules, so that there will be a fair and lawful resolution of every
case.
NOTE ON USE
This instruction should be given in addition to and at the conclusion of the instructions normally
given to the prospective jurors. The portion of this instruction dealing with communication with others
and outside research may need to be modified to include other specified means of communication or
research as technology develops.
19
1.1 INTRODUCTION
To be given when jurors are in courtroom, prior to voir dire.
In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic
rule is that jurors must decide the case only on the evidence presented in the courtroom. You must
not communicate with anyone, including friends and family members, about this case, the people
and places involved, or your jury service. You must not disclose your thoughts about this case or ask
for advice on how to decide this case.
I want to stress that this rule means you must not use electronic devices or computers to
communicate about this case, including tweeting, texting, blogging, e-mailing, posting information
on a website or chat room, or any other means at all. Do not send or accept any messages to or
from anyone about this case or your jury service.
You must not do any research or look up words, names, [maps], or anything else that may
have anything to do with this case. This includes reading newspapers, watching television or using
a computer, cell phone, the Internet, any electronic device, or any other means at all, to get
information related to this case or the people and places involved in this case. This applies whether
you are in the courthouse, at home, or anywhere else.
All of us are depending on you to follow these rules, so that there will be a fair and lawful
resolution to this case. Unlike questions that you may be allowed to ask in court, which will be
answered in court in the presence of the judge and the parties, if you investigate, research or make
inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper
and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what
you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures
every party the right to ask questions about and rebut the evidence being considered against it and
to present argument with respect to that evidence. Non-court inquiries and investigations unfairly
and improperly prevent the parties from having that opportunity our judicial system promises. If
you become aware of any violation of these instructions or any other instruction I give in this case,
you must tell me by giving a note to the bailiff.
Comment
The portion of this instruction dealing with communication with others and outside research may
need to be modified to include other specified means of communication or research as technology
develops.
This instruction was adopted in 2010.
20
21
22
23
24
1.6
NOTE-TAKING BY JURORS
If you would like to take notes during the trial, you may do so. On the other hand, of course,
you are not required to take notes if you do not want to. That will be left up to you individually.
You will be provided with a note pad and a pen for use if you wish to take notes. Any notes
that you take will be for your personal use. However, you should not take them with you from the
courtroom. During recesses, the bailiff will take possession of your notes and will return them to
you when we reconvene. After you have completed your deliberations, the bailiff will deliver your
notes to me. They will be destroyed. No one will ever read your notes.
If you take notes, do not get so involved in note-taking that you become distracted from the
proceedings. Your notes should be used only as aids to your memory.
Whether or not you take notes, you should rely on your memory of the evidence and you
should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater
weight than each jurors memory of the evidence.
NOTE ON USE
The court should furnish all jurors with the necessary pads and pens for taking notes.
Additionally, it may be desirable for jurors to be furnished with envelopes to place the notes in for
additional privacy.
Comment
This instruction was adopted in 2007 [SC05-1091].
25
Preliminary Instructions
Bench Conferences [Reserved]
Stipulations [Reserved]
Evidence of Other Crimes, Wrongs, or Acts "Williams Rule"
90.404(2)(a), Fla.Stat.
Conviction of Certain Crimes as Impeachment
90.107, 90.610(1), Fla.Stat.
Use of Transcripts of Recordings
Closing Argument
918.19, Fla. Stat.
Jury to be Guided by Official English Translation/Interpretation, Preliminary Instructions
Jury to be Guided by Official English Translation/Interpretation, Instructions During
Trial
Jury to be Guided by Official English Translation/Interpretation, Transcript of Recording in
Foreign Language (Accuracy Not in Dispute)
Jury to be Guided by Official English Translation/Interpretation, Transcript of Recording
In Foreign Language (Accuracy in Dispute)
Jury to be Guided by Official English Translation/Interpretation, Closing Instructions
Questions by Jurors
26
27
you are on the jury trying the case and ask [him] [her] to stop. If [he] [she] persists, leave [him]
[her] at once and immediately report the matter to the bailiff, who will advise me.
The case must be tried by you only on the evidence presented during the trial in your
presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct
any investigation of their own. This includes reading newspapers, watching television or using a
computer, cell phone, the Internet, any electronic device, or any other means at all, to get
information related to this case or the people and places involved in this case. This applies whether
you are in the courthouse, at home, or anywhere else. You must not visit places mentioned in the
trial or use the Internet to look at maps or pictures to see any place discussed during the trial.
Jurors must not have discussions of any sort with friends or family members about the case
or the people and places involved. So, do not let even the closest family members make comments
to you or ask questions about the trial. In this age of electronic communication, I want to stress
again that just as you must not talk about this case face-to-face, you must not talk about this case
by using an electronic device. You must not use phones, computers or other electronic devices to
communicate. Do not send or accept any messages related to this case or your jury service. Do not
discuss this case or ask for advice by any means at all, including posting information on an Internet
website, chat room or blog.
Give if defendant requests.
In every criminal proceeding a defendant has the absolute right to remain silent. At no time
is it the duty of a defendant to prove [his] [her] innocence. From the exercise of a defendant's right
to remain silent, a jury is not permitted to draw any inference of guilt, and the fact that a defendant
did not take the witness stand must not influence your verdict in any manner whatsoever.
The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to
make all objections they feel are proper. When an objection is made you should not speculate on the
reason why it is made; likewise, when an objection is sustained, or upheld, by me, you must not
speculate on what might have occurred had the objection not been sustained, nor what a witness
might have said had [he] [she] been permitted to answer.
Comment
The portion of this instruction dealing with communication with others and outside research may
need to be modified to include other specified means of communication or research as technology
develops.
This instruction was adopted in 1981 and amended in 2010.
28
29
30
31
32
33
34
35
36
37
38
39
40
3.4
3.5
3.6
3.7
3.8
3.9
41
3.10
3.11
3.12
3.13
42
43
44
45
46
47
b.
had a firearm within immediate physical reach with ready access with the intent to
use the firearm during the commission of the crime.
Comment
This instruction was adopted in July 1992 [603 So. 2d 1175] and amended in 2008.
48
49
2.
then you should find the defendant guilty of (crime charged or lesser included crime) aggravated by
the intentional selection of the victim based on prejudice.
If you find that the defendant committed (crime charged or a lesser included crime) beyond a
reasonable doubt, but you are not convinced beyond a reasonable doubt that [he] [she] did so by
intentionally selecting the victim based on prejudice, then you should find the defendant guilty of
only (crime charged or a lesser included crime).
Definitions. Give if applicable.
Mental or physical disability means that the victim suffers from a condition of physical or
mental incapacitation due to a developmental disability, organic brain damage, or mental illness,
and has one or more physical or mental limitations that restrict the victims ability to perform the
normal activities of daily living.
Advanced age means that the victim is older than 65 years of age.
Homeless status means the victim lacks a fixed, regular, and adequate nighttime residence;
or has a primary nighttime residence that is either (1) a supervised publicly or privately operated
shelter designed to provide temporary living accommodations or (2) a public or private place not
designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
Comments
Proof that the defendant intentionally selected the victim is required by State v. Stalder, 630 So.
2d 1072 (Fla. 1994).
This instruction was adopted in 1997 [697 So.2d 84] and amended in 2000 [765 So. 2d 692] and
2007 [965 So. 2d 811] and 2011.
50
51
52
3.5 PARTIES
3.5(a) PRINCIPALS
777.011, Fla.Stat.
If the defendant helped another person or persons [commit] [attempt to commit] a crime,
the defendant is a principal and must be treated as if [he] [she] had done all the things the other
person or persons did if:
1.
the defendant had a conscious intent that the criminal act be done and
2.
the defendant did some act or said some word which was intended to and which did
incite, cause, encourage, assist, or advise the other person or persons to actually
[commit] [attempt to commit] the crime.
To be a principal, the defendant does not have to be present when the crime is [committed]
[or] [attempted]. See State v. Dene, 533 So.2d 265 (Fla. 1988).
Comment
This instruction was adopted in May 1987, and was amended in July 1990, July 1992 and
December 1995.
53
the defendant had a conscious intent that the criminal act be done and
2.
[he] [she] made or promised the payment in exchange for the commission or promise
to commit the crime or to help commit the crime and
3.
To be a principal, the defendant does not have to be present when the crime is [committed]
[or] [attempted]. See State v. Dene, 533 So.2d 265 (Fla. 1988).
Comment
This instruction was adopted in 1981 and was amended in July 1992 and July 1997.
54
2.
After the (felony alleged) was committed, (defendant) [maintained] [assisted] [aided
or attempted to aid] (name of person committing felony).
3.
At that time, (defendant) knew that (name of person committing felony) had
committed the (felony alleged).
4.
(Defendant) did so with the intent that (name of person committing felony) avoid or
escape detection, arrest, trial, or punishment.
55
3.6(a) INSANITY
An issue in this case is whether (defendant) was insane when the crime allegedly was
committed.
A person is considered to be insane when:
1.
2.
[he] [she] did not know what [he] [she] was doing or its consequences or
b.
although [he] [she] knew what [he] [she] was doing and its consequences,
[he] [she] did not know it was wrong.
Give if applicable.
A defendant who believed that what [he] [she] was doing was morally right is not insane if
the defendant knew that what [he] [she] was doing violated societal standards or was against the
law.
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 of such weight that it produces a firm belief, without
hesitation, about the matter in issue.
In determining the issue of insanity, you may consider the testimony of expert and
nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or
has ever been insane, but whether instead the defendant was insane at the time the crime allegedly
was committed.
Give if applicable.
Unrestrained passion or ungovernable temper is not insanity, even though the normal
judgment of the person is overcome by passion or temper.
Give if applicable.
If the evidence establishes that the defendant had been adjudged insane by a court, and has
not been judicially restored to legal sanity, then you should assume the defendant was insane at the
time of commission of the alleged crime, unless the evidence convinces you otherwise.
If you find that (defendant) committed the crime but you find by clear and convincing
evidence that the defendant was insane, then you should find [him] [her] not guilty by reason of
insanity.
If your verdict is that the defendant is not guilty by reason of insanity, that does not
necessarily mean [he] [she] will be released from custody. I must conduct further proceedings to
determine if the defendant should be committed to a mental hospital, or given other outpatient
treatment or released.
56
Comment
If drugs or alcohol are involved, see Cirack v. State, 201 So.2d 706 (Fla. 1967).
This instruction was adopted in 1981 [431 So.2d 600], and was amended in 1986 [483 So.2d
428], 1994 [636 So.2d 502], and 2006.
57
2.
Because of this condition, the person had hallucinations or delusions which caused
the person to honestly believe to be facts things that are not true or real.
58
59
60
61
2.
3.
Insert and define applicable felony that defendant alleges victim attempted to commit.
Give if applicable. 776.012, 776.031, Fla. Stat.
A person is justified in using deadly force if [he] [she] reasonably believes that such force is
necessary to prevent
1.
2.
The force asserted toward the defendant was so great that [he] [she]
reasonably believed that [he] [she] was in imminent danger of death or great
62
bodily harm and had exhausted every reasonable means to escape the
danger, other than using deadly force on (assailant).
b.
In good faith, the defendant withdrew from physical contact with (assailant)
and clearly indicated to (assailant) that [he] [she] wanted to withdraw and
stop the use of deadly force, but (assailant) continued or resumed the use of
force.
63
[occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had
no duty to retreat under such circumstances.
Exceptions to Presumption of Fear. 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply
if:
a.
the person against whom the defensive force is used has the right to be in [or is a
lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner,
lessee, or titleholder, and there is not an injunction for protection from domestic
violence or a written pretrial supervision order of no contact against that person;
or
b.
c.
the person who uses defensive force is engaged in an unlawful activity or is using the
[dwelling] [residence] [occupied vehicle] to further an unlawful activity; or
d.
the person against whom the defensive force is used is a law enforcement officer,
who enters or attempts to enter a [dwelling] [residence] [vehicle] in the
performance
of [his] [her] official duties and the officer identified [himself] [herself] in
accordance with any applicable law or the person using the force
knew or
reasonably should have known that the person entering or
attempting to enter was a
law enforcement officer.
If requested, give definition of law enforcement officer from 943.10(14), Fla. Stat.,
776.013(4), Fla. Stat.
A person who unlawfully and by force enters or attempts to enter anothers [dwelling]
[residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act
involving force or violence.
Definitions. Give if applicable. 776.013(5), Fla. Stat.
As used with regard to self defense:
Dwelling means a building or conveyance of any kind, including any attached porch,
whether the building or conveyance is temporary or permanent or mobile or immobile, which has a
roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
Residence means a dwelling in which a person resides either temporarily or permanently
or is visiting as an invited guest.
Vehicle means a conveyance of any kind, whether or not motorized, which is designed to
transport people or property.
Prior threats. Give if applicable.
If you find that the defendant who because of threats or prior difficulties with (victim) had
reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the
hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the
defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she]
renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty,
64
although as previously explained if the defendant was not engaged in an unlawful activity and was
attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.
Reputation of victim. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that
[his] [her] reputation was known to the defendant, you may consider this fact in determining
whether the actions of the defendant were those of a reasonable person in dealing with an
individual of that reputation.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical
abilities and capacities of the defendant and (victim).
Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the
question of whether the defendant was justified in the use of deadly force, you should find the
defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the
use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been
proved.
Comment
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1999 [732 So.
2d 1044], 2000 [789 So. 2d 984], 2006 [930 So. 2d 612], and 2010.
65
(Defendant) must have reasonably believed that such conduct was necessary to
defend [himself] [herself] [another] against (victims) imminent use of unlawful force
against the [defendant] [another person].
2.
The use of unlawful force by (victim) must have appeared to (defendant) to be ready
to take place.
(Victim) must have been trespassing or otherwise wrongfully interfering with land
or personal property.
2.
The land or personal property must have lawfully been in (defendants) possession,
or in the possession of a member of [his] [her] immediate family or household, or in
the possession of some person whose property [he] [she] was under a legal duty to
protect.
3.
(Defendant) must have reasonably believed that [his] [her] use of force was necessary
to prevent or terminate (victims) wrongful behavior.
66
No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if
applicable. See Novak v. State 974 So. 2d 520 (Fla. 4th DCA 2008) regarding unlawful activity. There is
no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s)
for which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was attacked in any place
where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his]
[her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed
that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another]
or to prevent the commission of a forcible felony.
Definitions.
As used with regard to self defense,
Dwelling means a building or conveyance of any kind, including any attached porch,
whether the building or conveyance is temporary or permanent or mobile or immobile, which has a
roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
Residence means a dwelling in which a person resides either temporarily or permanently
or is visiting as an invited guest.
Vehicle means a conveyance of any kind, whether or not motorized, which is designed to
transport people or property.
Define applicable forcible felony that defendant alleges victim was about to commit.
Give in all cases.
A person does not have a duty to retreat if the person is in a place where [he] [she] has a
right to be.
Aggressor. 776.041, Fla. Stat.
The use of non-deadly force is not justified if you find:
Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831
So. 2d 1263 (Fla. 4th DCA 2002).
1.
(Defendant) was attempting to commit, committing, or escaping after the
commission of a (applicable forcible felony).
Define applicable forcible felony.
2.
(Defendant) initially provoked the use of force against [himself] [herself], unless:
a.
The force asserted toward the defendant was so great that [he] [she]
reasonably believed that [he] [she] was in imminent danger of death or great
bodily harm and had exhausted every reasonable means to escape the
danger, other than using non-deadly force on (assailant).
b.
In good faith, the defendant withdrew from physical contact with (assailant)
and indicated clearly to (assailant) that [he] [she] wanted to withdraw and
stop the use of non-deadly force, but (assailant) continued or resumed the use
of force.
67
68
2.
Force in making unlawful arrest or unlawful execution of a legal duty prohibited . 776.051(2),
Fla. Stat. Give if applicable.
Use of any force by a law enforcement officer or any person summoned or directed to assist
the law enforcement officer is not justified if:
1.
2.
firing a firearm in the direction of the person to be arrested, even though no intent
exists to kill or inflict great bodily harm; and 776.06(1)(a), Fla. Stat.
2.
69
3.6(i) ALIBI
An issue in this case is whether defendant was present when the crime allegedly was
committed.
If you have a reasonable doubt that the defendant was present at the scene of the alleged
crime, it is your duty to find the defendant not guilty.
Comment
This instruction was adopted in 1981. When the defendant is charged only as a principal not
present at the commission of the crime, the instruction may not be applicable.
70
3.6(j) ENTRAPMENT
The defense of entrapment has been raised. (Defendant) was entrapped if:
1.
[he] [she] was, for the purpose of obtaining evidence of the commission of a crime,
induced or encouraged to engage in conduct constituting the crime of (crime
charged), and
2.
[he] [she] engaged in such conduct as the direct result of such inducement or
encouragement, and
3.
the person who induced or encouraged [him] [her] was a law enforcement officer or
a person engaged in cooperating with or acting as an agent of a law enforcement
officer, and
4.
the person who induced or encouraged [him] [her] employed methods of persuasion
or inducement which created a substantial risk that the crime would be committed
by a person other than one who was ready to commit it, and
5.
(defendant) was not a person who was ready to commit the crime.
71
If you find that the defendant was entrapped, you should find the defendant not guilty of
(crime charged). If, however, you find that the defendant was not entrapped, you should find the
defendant guilty if all of the elements of the charge have been proved.
Comment
This instruction is to be used for offenses occurring on or after October 1, 1987.
This instruction should be given only if there is some evidence of the defendant's lack of
predisposition to commit the crime. See Munoz v. State, 629 So.2d 90 (Fla. 1993).
This instruction was adopted in 1981 and was amended in 1989 [543 So. 2d 1205] and 1998 [723
So. 2d 123].
72
The defendant reasonably believed [a danger] [an emergency] existed which was not
intentionally caused by [himself] [herself].
The threatened harm must have been real, imminent, and impending.
The (crime charged) (lesser included offenses) must have been committed out of [duress]
[necessity] to avoid the [danger] [emergency].
6.
The harm that the defendant avoided must outweigh the harm caused by committing
the (crime charged) (lesser included offenses).
Definitions
"Imminent and impending" means the [danger] [emergency] is about to take place and
cannot be avoided by using other means. A threat of future harm is not sufficient to prove this
defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the
crime after the danger from the threatened harm had passed.
The reasonableness of the defendant's belief that [a danger] [an emergency] existed should
be examined in the light of all the evidence.
73
In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser
included offenses), you must judge the defendant by the circumstances by which [he] [she] was
surrounded at the time the crime was committed.
The [danger] [emergency] facing the defendant need not have been actual; however, to
justify the commission of the (crime charged) (lesser included offenses), the appearance of the
[danger] [emergency] must have been so real that a reasonably cautious and prudent person under
the same circumstances would have believed that the [danger] [emergency] could be avoided only
by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant
must have actually believed that the [danger] [emergency] was real.
If you find from the evidence that the defendant committed the (crime charged) (lesser
included offenses) out of [duress] [necessity], you should find the defendant not guilty.
However, if you find that the defendant did not commit the (crime charged) (lesser included
offenses) out of [duress] [necessity] you should find the defendant guilty if all the elements of the
charge have been proved.
Comment
Duress is not a defense to an intentional homicide. See Wright v. State, 402 So.2d 193 (Fla. 3d
DCA 1981).
This instruction was adopted in July 1998.
74
2.
3.
which was outside of and not a reasonably foreseeable consequence of the common
design or unlawful act contemplated by the defendant.
If you find the defendant was not present when the crime of (crime alleged) occurred, that,
in and of itself, does not establish that the (crime alleged) was an independent act of another.
If you find that the (crime alleged) was an independent act of [another] [(name of
individual)], then you should find (defendant) not guilty of the crime of (crime alleged).
If the name of the other person is known, it should be inserted here; otherwise, use the word
"another."
Comment
This instruction was adopted in July 1997.
75
76
77
78
79
80
3.8(e) VENUE
It must be proved, only to a reasonable certainty, that the alleged crime was committed [in
this county] [within the areas of the counties named in the charge].
This charge should be given only when the defendant requests it and there is an issue of fact in
the evidence for the jury to resolve.
Comment
This instruction was adopted in 1981.
81
Did the witness seem to have an opportunity to see and know the things about which
the witness testified?
2.
3.
Was the witness honest and straightforward in answering the attorneys' questions?
4.
Did the witness have some interest in how the case should be decided?
5.
Does the witness's testimony agree with the other testimony and other evidence in
the case?
The instructions covered under paragraphs numbered 6 through 10, inclusive, are not common to
all cases. These numbered paragraphs should be included only as required by the evidence.
6.
Has the witness been offered or received any money, preferred treatment, or other
benefit in order to get the witness to testify?
7.
Had any pressure or threat been used against the witness that affected the truth of
the witness's testimony?
8.
Did the witness at some other time make a statement that is inconsistent with the
testimony [he] [she] gave in court?
9.
10.
Was it proved that the general reputation of the witness for telling the truth and
being honest was bad?
You may rely upon your own conclusion about the witness. A juror may believe or disbelieve
all or any part of the evidence or the testimony of any witness.
Comment
The court also may wish to give as part of this instruction the instructions covered under 3.9(a)
and (b), concerning expert witnesses and accomplices. If so, the Committee recommends that they be
given as additional numbered paragraphs, which would precede the last two unnumbered paragraphs of
this instruction.
This instruction was adopted in 1981.
82
83
3.9(b) ACCOMPLICE
You should use great caution in relying on the testimony of a witness who claims to have
helped the defendant commit a crime. This is particularly true when there is no other evidence
tending to agree with what the witness says about the defendant.
However, if the testimony of such a witness convinces you beyond a reasonable doubt of the
defendant's guilt, or the other evidence in the case does so, then you should find the defendant
guilty.
Comment
This instruction was adopted in 1981.
84
85
86
whether, when the defendant made the statement, [he] [she] had been threatened in
order to get [him] [her] to make it, and
2.
whether anyone had promised [him] [her] anything in order to get [him] [her] to
make it.
If you conclude the defendant's out of court statement was not freely and voluntarily made,
you should disregard it.
Comment
This instruction was adopted in 1981.
87
You must follow the law as it is set out in these instructions. If you fail to
follow the law, your verdict will be a miscarriage of justice. There is no
reason for
failing to follow the law in this case. All of us are depending upon
you to make a
wise and legal decision in this matter.
2.
This case must be decided only upon the evidence that you have
heard from the testimony of the witnesses [and have seen in the
form of the exhibits in evidence] and these instructions.
3.
This case must not be decided for or against anyone because you
feel sorry for anyone, or are angry at anyone.
4.
Remember, the lawyers are not on trial. Your feelings about them
not influence your decision in this case.
should
When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5.
5.
6.
Give 7 if applicable.
7.
It is entirely proper for a lawyer to talk to a witness about what
testimony the witness would give if called to the courtroom. The
witness should not be discredited by talking to a lawyer about
[his] [her] testimony.
Give 8 if applicable.
8.
The jury is not to discuss any question[s] that [a juror] [jurors]
wrote that was [were] not asked by the court, and must not hold
that against either party.
9.
This instruction was adopted in 1981 and was amended in 1995, September 2005, and 2012.
88
89
3.12 VERDICT
The giving of an instruction as to the verdict can be avoided by the use of a self-executing verdict
form. The judge can read the verdict form to the jury, explaining it as [he] [she] goes. A sample of
possible verdict forms for typical variables in combinations of defendants and charges follows:
1.
2.
count)
We, the jury, find as follows, as to Count II of the charge: (check only one as to this
___a. The defendant is guilty of (crime charged).
___b. The defendant is guilty of (a lesser included offense).
___c. The defendant is not guilty.
count)
90
___a.
___b.
___c.
___d.
You may find the defendant guilty as charged in the [information] [indictment] or guilty of
such lesser included crime as the evidence may justify or not guilty.
If you return a verdict of guilty, it should be for the highest offense which 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.
Only one verdict may be returned as to [the crime] [each crime] charged. This verdict must
be unanimous, that is, all of you must agree to the same verdict. The verdict must be in writing and
for your convenience the necessary forms of verdict have been prepared for you. They are as
follows (read verdict forms):
In cases of multiple defendants or multiple charges, give 3.12(a), (b), or (c) as applicable.
Comment
This verdict form was adopted in 1981 and was amended in October 1981 and December 1995.
91
92
93
94
95
96
SUPPLEMENTAL INSTRUCTIONS
4.1
4.2
4.3
4.4
Jury Deadlock
Instruction Upon Discharge of Jury
Answers to Juror Inquiries During Deliberations
Read-Back Testimony
97
98
4.2
INSTRUCTION UPON DISCHARGE OF JURY
Ladies and gentlemen, I wish to thank you for your time and consideration of this case.
I also wish to advise you of some very special privileges enjoyed by jurors.
No juror can ever be required to talk about the discussions that occurred in the jury room,
except by court order. For many centuries, our society has relied upon juries for consideration of
difficult cases. We have recognized for hundreds of years that a jurys deliberations, discussions,
and votes should remain their private affair as long as they wish it. Therefore, the law gives you a
unique privilege not to speak about the jurys work.
Although you are at liberty to speak with anyone about your deliberations, you are also at
liberty to refuse to speak to anyone. A request to discuss either your verdict or your deliberations
may come from those who are simply curious, from those who might seek to find fault with you,
from the media, from the attorneys, or elsewhere. It will be up to you to decide whether to preserve
your privacy as a juror.
Upon the completion of the reading of this instruction, the jury should be discharged and no
further discussion should be had at that time between the judge and the jurors or between the attorneys
and jurors unless some question of irregularity in the jury procedures arises at that point. Fla.R.Crim.P.
3.451.
Comment
This instruction was adopted in 1981 and amended in 2007 [967 So. 2d 178].
99
4.3
ANSWERS TO JUROR INQUIRIES DURING DELIBERATIONS
Members of the jury, I have discussed your [note][question] with the attorneys.
You have [asked the following question][made the following request]: (read jurors note)
If I have not read your [note][question] correctly, please raise your hand.
(clarify question as needed)
1.
2.
1.
The procedure contained in 4.3 assumes that a juror question or request will be in writing.
Oral questions from jurors are discouraged.
2.
3.
All written questions and answers should be preserved and placed in the court file.
Comment
100
4.4
READ-BACK OF TESTIMONY
1.
Members of the jury, you have asked that the following testimony be read back to
you: (describe testimony)
The court reporter will now read the testimony which you have requested.
OR
2.
Read-Back Deferred
Members of the jury, I have discussed with the attorneys your request to have
certain testimony read back to you. It will take approximately (amount of time) to have the
court reporter prepare and read back the requested testimony.
I now direct you to return to the jury room and discuss your request further. If you
are not able to resolve your question about the requested testimony by relying on your
collective memory, then you should write down as specific a description as possible of the
part of the witness(es) testimony which you want to hear again. Make your request for
reading back testimony as specific as possible.
3.
Read-Back Denied
Members of the jury, you have asked that the following testimony be read back to
you: (describe testimony)
I am not able to grant your request.
NOTE ON USE
Any read-back of testimony should take place in open court. Transcripts or tapes of testimony
should not be sent back to the jury room.
Comment
This instruction was adopted in 2007 [967 So. 2d 178].
101
INCHOATE CRIMES
5.1
5.2
5.3
102
(Defendant) did some act toward committing the crime of (crime attempted) that went
beyond just thinking or talking about it.
2.
a.
[someone prevented [him] [her] from committing the crime of (crime charged).]
103
2.
It is not necessary that the defendant do any act in furtherance of the offense solicited.
Define the crime solicited. If it is Burglary, also define crime that was object of the burglary. Also
define "attempt" (see 5.1).
Definition
To "solicit" means to ask earnestly or to try to induce the person solicited to do the thing
solicited.
Defense. Give if applicable. 777.04(5)(b), Fla.Stat.
It is a defense to the charge of criminal solicitation if the defendant, after soliciting (person
solicited) to commit the (offense solicited), persuaded (person solicited) not to do so, or otherwise
prevented commission of the offense.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
104
The intent of (defendant) was that the offense of (object of conspiracy) would be
committed.
If there is an issue as to whether the subject of the conspiracy was a crime, it may be necessary to
define that crime.
2.
105
ATTEMPTED HOMICIDE
6.1
6.2
6.3
6.4
6.5
6.6
106
When the attempted killing is committed by accident and misfortune in doing any
lawful act by lawful means with usual ordinary caution and without any unlawful
intent, or
2.
When the attempted killing occurs by accident and misfortune in the heat of
passion, upon any sudden and sufficient provocation, or
3.
When the attempted killing is committed by accident and misfortune resulting from
a sudden combat, if a dangerous weapon is not used and the attempted killing is not
done in a cruel and unusual manner.
Definition
"Dangerous weapon" is any weapon that, taking into account the manner in which it is
used, is likely to produce death or great bodily harm.
I now instruct you on the circumstances that must be proved before defendant may be
found guilty of attempted murder or any lesser included crime.
Comment
107
108
(Defendant) did some act intended to cause the death of (victim) that went beyond
just thinking or talking about it.
2.
3.
The act would have resulted in the death of (victim) except that someone prevented
(defendant) from killing (victim) or [he] [she] failed to do so.
Definition
A premeditated design to kill means that there was a conscious decision to kill. The decision
must be present in the mind at the time the act was committed. The law does not fix the exact
period of time that must pass between the formation of the premeditated intent to kill and the act.
The period of time must be long enough to allow reflection by the defendant. The premeditated
intent to kill must be formed before the act was committed.
The question of premeditation is a question of fact to be determined by you from the
evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing
and the conduct of the accused convince you beyond a reasonable doubt of the existence of
premeditation at the time of the attempted killing.
It is not an attempt to commit first degree premeditated murder if the defendant abandoned
the attempt to commit the offense or otherwise prevented its commission under circumstances
indicating a complete and voluntary renunciation of [his] [her] criminal purpose.
Lesser Included Offenses
ATTEMPTED FIRST DEGREE (PREMEDITATED) MURDER 782.04(1) and 777.04
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt second degree
782.04(2) and
6.4
(depraved mind) murder
777.04
Attempt voluntary
782.07 and 777.04
6.6
manslaughter
Aggravated assault
784.021
8.2
Aggravated battery
784.045
8.4
Assault
784.011
8.1
Battery
784.03
8.3
Comment
This instruction was adopted in 1994.
109
2.
3.
This intentional act could have but did not cause the death of (victim).
110
2.
111
1.
(Defendant) intentionally committed an act which would have resulted in the death
of (victim) except that someone prevented (defendant) from killing (victim) or [he]
[she] failed to do so.
2.
The act was imminently dangerous to another and demonstrating a depraved mind
without regard for human life.
Definitions
An "act" includes a series of related actions arising from and performed pursuant to a
single design or purpose.
An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an
act or series of acts that:
1.
2.
3.
is of such a nature that the act itself indicates an indifference to human life.
In order to convict of Attempted Second Degree Murder, it is not necessary for the State to
prove the defendant had an intent to cause death.
It is not an attempt to commit second degree murder if the defendant abandoned the
attempt to commit the offense or otherwise prevented its commission under circumstances
indicating a complete and voluntary renunciation of [his] [her] criminal purpose.
Lesser Included Offenses
ATTEMPTED SECOND DEGREE MURDER 782.04(2) and 777.04
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Aggravated assault
784.021
8.2
Aggravated battery
784.045
8.4
Assault
784.011
8.1
Battery
784.03
8.3
Comment
This instruction was adopted in 1994 and amended in 1997.
112
113
114
HOMICIDE
7.1
7.2
Introduction to Homicide
Murder First Degree
782.04(1)(a), Fla.Stat.
7.3
Felony Murder First Degree
782.04(1)(a), Fla.Stat.
7.4
Murder Second Degree
782.04(2), Fla.Stat.
7.5
Felony Murder Second Degree
782.04(3), Fla.Stat.
7.6
Felony Murder Third Degree
782.04(4), Fla.Stat.
7.7
Manslaughter
782.07, Fla.Stat.
7.8
Driving Under the Influence Manslaughter
316.193(3)(a)(b)(c)3, Fla.Stat.
7.8(a) Boating Under the Influence Manslaughter
327.35(3)(a)(b)(c)3, Fla. Stat.
7.9
Vehicular or Vessel Homicide
782.071, Fla.Stat.
7.10
Excusable Homicide
782.03, Fla.Stat. [Deleted]
7.11
Penalty Proceedings Capital Cases
921.141, Fla. Stat.
7.12
Dialogue For Polling the Jury
115
When the killing is committed by accident and misfortune in doing any lawful act
by lawful means with usual ordinary caution and without any unlawful intent, or
2.
When the killing occurs by accident and misfortune in the heat of passion, upon any
sudden and sufficient provocation, or
3.
When the killing is committed by accident and misfortune resulting from a sudden
combat, if a dangerous weapon is not used and the killing is not done in a cruel or
unusual manner.
Definition.
"Dangerous weapon" is any weapon that, taking into account the manner in which it is
used, is likely to produce death or great bodily harm.
I now instruct you on the circumstances that must be proved before (defendant) may be
found guilty of (crime charged) or any lesser included crime.
Comment
For complete instructions on self-defense, if in issue, see 3.6(f), (g).
116
This instruction was amended in 1990 [573 So. 2d 306], 1992 [603 So. 2d 1175], and 1994 [639
So. 2d 602].
117
(Victim) is dead.
2.
3.
Definitions.
An act includes a series of related actions arising from and performed pursuant to a
single design or purpose.
Killing with premeditation is killing after consciously deciding to do so. The decision
must be present in the mind at the time of the killing. The law does not fix the exact period of time
that must pass between the formation of the premeditated intent to kill and the killing. The period
of time must be long enough to allow reflection by the defendant. The premeditated intent to kill
must be formed before the killing.
The question of premeditation is a question of fact to be determined by you from the
evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the
conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at
the time of the killing.
Transferred intent. Give if applicable.
If a person has a premeditated design to kill one person and in attempting to kill that
person actually kills another person, the killing is premeditated.
118
119
1.
(Victim) is dead.
Define the crime alleged. If Burglary, also define crime that was the object of burglary.
2.
3.
4.
Since the statute does not require its proof, it is not necessary to define "premeditation."
Lesser Included Offenses
120
INS. NO.
7.4
7.7
7.5
7.6
8.2
8.4
8.1
8.3
Comment
This instruction was adopted in 1981 and was amended in 1985, 1992, and 2011.
121
(Victim) is dead.
2.
3.
Definitions.
An act includes a series of related actions arising from and performed pursuant to a
single design or purpose.
An act is imminently dangerous to another and demonstrating a depraved mind if it is an
act or series of acts that:
1.
2.
3.
is of such a nature that the act itself indicates an indifference to human life.
In order to convict of Second Degree Murder, it is not necessary for the State to prove the
defendant had an intent to cause death.
Lesser Included Offenses
SECOND DEGREE (DEPRAVED MIND) MURDER 782.04(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Manslaughter
782.07
Third degree (felony) murder 782.04(4)
Vehicular homicide
782.071
(Nonhomicide lessers)
777.04(1)
Attempt
Culpable negligence
784.05(2)
Culpable negligence
784.05(1)
Felony battery
784.041
Aggravated battery
784.045
Aggravated assault
784.021
Battery
784.03
Assault
784.011
122
INS. NO.
7.7
7.6
7.9
5.1
8.9
8.9
8.5
8.4
8.2
8.3
8.1
Comment
This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84] and 2008 [994 So. 2d
1038].
123
(Victim) is dead.
(Defendant) was not the person who actually killed (victim) but did knowingly aid,
abet, counsel, hire, or otherwise procure the commission of (crime alleged).
4.
The person who actually killed (victim) was not involved in the commission or the
attempt to commit the (crime alleged).
1.
Define the crime alleged. If Burglary, also define crime that was object of burglary.
2.
124
INS. NO.
7.6
(Victim) is dead.
2.
3.
CATEGORY ONE
None
784.021
784.03
784.011
Comment
This instruction was adopted in 1981 and amended in 1992 and 1994.
125
INS. NO.
8.2
8.3
8.1
Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla. 1999), in any
manslaughter case in which causation is an issue to determine if a special jury instruction on causation is
needed.
To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the
defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included
offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a
Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement
Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included
offenses require proof of knowing that the commission of the offense was on an officer who was engaged
in the lawful performance of a legal duty.
This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d
1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], 2006 [946 So.2d 1061] and 2008.
126
7.7 MANSLAUGHTER
782.07, Fla. Stat.
To prove the crime of Manslaughter, the State must prove the following two elements
beyond a reasonable doubt:
1.
(Victim) is dead.
c.
When the killing is committed by accident and misfortune in doing any lawful act
by lawful means with usual ordinary caution and without any unlawful intent, or
2.
When the killing occurs by accident and misfortune in the heat of passion, upon any
sudden and sufficient provocation, or
3.
When the killing is committed by accident and misfortune resulting from a sudden
combat, if a dangerous weapon is not used and the killing is not done in a cruel or
unusual manner.
782.03, Fla. Stat.
Give only if 2a alleged and proved.
In order to convict of manslaughter by act, it is not necessary for the State to prove that the
defendant had an intent to cause death, only an intent to commit an act that was not merely
negligent, justified, or excusable and which caused death.
Give only if 2b alleged and proved.
To procure means to persuade, induce, prevail upon or cause a person to do something.
127
(Victim) was at the time [an elderly person] [a disabled adult] whose death was
caused by the neglect of (defendant), a caregiver.
b.
(Victim) was a child whose death was caused by the neglect of (defendant), a
caregiver.
c.
(Victim) was at the time [an officer] [a firefighter] [an emergency medical
technician] [a paramedic] who was at the time performing duties that were within
the course of [his] [her] employment. The court now instructs you that (official title
of victim) is [an officer] [a firefighter] [an emergency medical technician] [a
paramedic].
128
Facility means any location providing day or residential care or treatment for elderly
persons or disabled adults. The term facility may include, but is not limited to, any hospital,
training center, state institution, nursing home, assisted living facility, adult family-care home, adult
day care center, group home, mental health treatment center, or continuing care community.
As applied to an Elderly Person or a Disabled Adult.
Caregiver means a person who has been entrusted with or has assumed responsibility for
the care or the property of an elderly person or a disabled adult. Caregiver includes, but is not
limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors,
health care providers, and employees and volunteers of facilities.
As applied to a Child.
Caregiver means a parent, adult household member, or other person responsible for a
childs welfare.
825.102(3)(a) or 827.03(3)(a), Fla. Stat. Give 1 or 2 as applicable.
Neglect of [a child] [an elderly person] [a disabled adult] means:
1.
2.
Repeated conduct or a single incident or omission by a caregiver that results in, or could
reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a
disabled adult] may be considered in determining neglect.
Definitions. As applied to Designated Personnel.
112.191 and 633.35, Fla. Stat.
Firefighter means any full-time duly employed uniformed firefighter employed by an
employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and
property there from, the enforcement of municipal, county, and state fire prevention codes, as well
as the enforcement of any law pertaining to the prevention and control of fires, who is certified by
the Division of State Fire Marshal of the Department of Financial Services, who is a member of a
duly constituted fire department of such employer or who is a volunteer firefighter.
943.10(14), Fla. Stat.
Officer means any person employed or appointed as a full-time, part-time or auxiliary
law enforcement officer, correctional officer, or correctional probation officer.
401.23, Fla. Stat.
Emergency Medical Technician means a person who is certified by the Department of
Health to perform basic life support.
129
MANSLAUGHTER - 782.07
CATEGORY TWO
FLA. STAT.
INS. NO.
Vehicular homicide
Vessel homicide
(Nonhomicide lessers) Attempt
Aggravated assault
Battery
Assault
Culpable negligence
7.9
7.9
5.1
8.2
8.3
8.1
8.9
782.071
782.072
777.04(1)
784.021
784.03
784.011
784.05
Comment
In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable
homicide as previously given should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla.
1965).
In appropriate cases, an instruction on transferred intent should be given.
Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla. 1999), in any
manslaughter case in which causation is an issue to determine if a special jury instruction on causation is
needed.
To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the
defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included
offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a
Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement
Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included
offenses require proof of knowing that the commission of the offense was on an officer who was engaged
in the lawful performance of a legal duty.
This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d
1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], 2006 [946 So.2d 1061], 2008 [997 So. 2d 403],
2010 [41 So.3d 853], and 2011.
130
2.
had a [blood] [breath]alcohol level of .08 or more grams of alcohol per [100
milliliters of blood] [210 liters of breath].
Florida law requires that the driver of any vehicle involved in a crash resulting in injury to
or death of any person, or damage to any vehicle or other property which is driven or attended by
any person, must supply [his] [her] name, address, and the registration number of the vehicle [he]
[she] is driving to any person injured in the crash or to the driver or occupant of or person
attending any vehicle or other property damaged in the crash. Upon request and if available, the
driver shall also exhibit [his] [her] license or permit to drive.
The driver shall give the same information and, upon request, exhibit his or her license or
permit, to any police officer who is at the scene of the crash or who is investigating the crash.
The driver shall also render reasonable assistance to any person injured in the crash,
including carrying, or the making of arrangements for the carrying, of such person to a physician,
131
surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary,
or if such carrying is requested by the injured person.
In the event none of the persons specified above are in condition to receive the information
to which they otherwise would be entitled, and no police officer is present, the driver of a vehicle
involved in the crash, after trying to fulfill the requirements listed above as much as possible, shall
immediately report the crash to the nearest office of a duly authorized police authority and supply
the information specified above.
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Manslaughter, you must also
determine whether the State has proven beyond a reasonable doubt whether:
a.
b.
the defendant was accompanied in the vehicle by a person under the age of
18 years at the time of the driving under the influence.
132
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired.
2.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but
less than .08, that fact does not give rise to any presumption that the defendant was
or was not under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. In such cases, you may consider that evidence along
with other evidence in determining whether the defendant was under the influence
of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that
evidence would be sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
133
2.
and
b.
c.
Florida law requires that the operator of a vessel involved in a collision, accident, or other
casualty, to render to other persons affected by the collision, accident, or other casualty such
assistance as is practicable and necessary in order to save them from or minimize any danger
caused by the collision, accident, or other casualty, so far as [he] [she] can do so without serious
danger to the operators own vessel, crew, and passengers.
Florida law also requires the operator to give [his] [her] name, address, and identification of
[his] [her] vessel in writing to any person injured and to the owner of any property damaged in the
collision, accident, or other casualty.
In cases of collision, accident, or other casualty resulting in death or medical treatment
beyond immediate first aid, Florida law requires that the operator, without delay and by the
quickest means available, give notice of the accident to one of the following agencies: the Division of
Law Enforcement of the Fish and Wildlife Conservation Commission; the sheriff of the county
134
within which the accident occurred; or the police chief of the municipality within which the
accident occurred.
Give if applicable.
If you find the defendant guilty of Boating under the Influence Manslaughter, you must also
determine whether the State has proven beyond a reasonable doubt whether:
a.
b.
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.
1.
If you find from the evidence that while operating or in actual physical control of the
vessel, the defendant had a [blood] [breath]- alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of alcoholic beverages to the
extent that [his] [her] normal faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the defendant was under the influence
of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
2.
If you find from the evidence that while operating or in actual physical control of the
vessel, the defendant had a [blood] [breath]- alcohol level in excess of .05 but less
than .08, that fact does not give rise to any presumption that the defendant was or was
not under the influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired. In such cases, you may consider that evidence along with
other evidence in determining whether the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
135
3.
If you find from the evidence that while operating or in actual physical control of the
vessel, the defendant had a [blood] [breath] alcohol level of .08 or more, that evidence
would be sufficient by itself to establish that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But
this evidence may be contradicted or rebutted by other evidence demonstrating that
the defendant was not under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired.
136
(Victim) is dead.
2.
The death was caused by the operation of a [motor vehicle] [vessel] by (defendant).
3.
(Defendant) operated the [motor vehicle] [vessel] in a reckless manner likely to cause
the death of or great bodily harm to another person.
An intent by the defendant to harm or injure the victim or any other person is not an
element to be proved by the State.
Enhanced penalty. 782.071(1)(b) or 782.072(2), Fla. Stat. Give if applicable.
If you find the defendant guilty of [vehicular] [vessel] homicide, you must then determine
whether the State has further proved beyond a reasonable doubt that:
1.
At the time of the accident, (defendant) knew, or should have known, that the
accident occurred; and
2.
(Defendant) failed to give information and render aid as required by law. (Read
applicable portion of 316.062, Fla. Stat., as charged in information or indictment.)
However, the State is not required to prove (defendant) knew that the accident resulted in
injury or death.
Definitions.
782.071(2), Fla. Stat. Applicable only to Vehicular Homicide.
Victim includes a human being or a viable fetus which is killed as a result of any injury to
the mother. A fetus is viable when it becomes capable of meaningful life outside the womb through
standard medical measures.
327.02(39) Fla. Stat. Applicable only to Vessel Homicide.
Vessel is synonymous with boat and includes every description of watercraft, barge, and
airboat, other than a seaplane on the water, used or capable of being used as a means of
transportation on water.
Lesser Included Offenses
VEHICULAR OR VESSEL HOMICIDE 782.071 or 782.072
CATEGORY ONE
CATEGORY TWO
Reckless driving
Reckless or careless operation
of vessel
Culpable negligence
Culpable negligence
137
FLA. STAT.
316.192
327.33
INS. NO.
28.5
784.05(2)
784.05(1)
8.9
8.9
Comment
Culpable negligence is a Category Two lesser included offense of both vehicular and vessel
homicide.
This instruction was adopted in 1981 and amended in 2006 [946 So. 2d 1061], and 2008 [994 So.
2d 1038].
138
139
140
responsibility of the judge. In this case, as the trial judge, that responsibility will fall on me.
However, the law requires you to render an advisory sentence as to which punishment should be
imposedlife imprisonment without the possibility of parole or the death penalty.
Give only in cases where mitigation was presented to the jury by the defendant and not where
mitigation was waived.
Although the recommendation of the jury as to the penalty is advisory in nature and is not
binding, the jury recommendation must be given great weight and deference by the Court in
determining which punishment to impose.
Give only to the jury that found the defendant guilty.
Your advisory sentence should be based upon the evidence of aggravating and mitigating
circumstances that you have heard while trying the guilt or innocence of the defendant and the
evidence that has been presented to you in these proceedings.
Give only to a new penalty phase jury.
Your advisory sentence should be based upon the evidence of aggravating and mitigating
circumstances that has been presented to you in these proceedings.
Weighing the evidence.
It is up to you to decide which evidence is reliable. You should use your common sense in
deciding which is the best evidence, and which evidence should not be relied upon in considering
your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.
Credibility of witnesses.
You should consider how the witnesses acted, as well as what they said. Some things you
should consider are:
1.
Did the witness seem to have an opportunity to see and know the things about which
the witness testified?
2.
3.
Was the witness honest and straightforward in answering the attorneys questions?
4.
Did the witness have some interest in how the case should be decided?
5.
Did the witness testimony agree with the other testimony and other evidence in the
case?
6.
Had the witness been offered or received any money, preferred treatment or other
benefit in order to get the witness to testify?
7.
Had any pressure or threat been used against the witness that affected the truth of
the witness testimony?
8.
Did the witness at some other time make a statement that is inconsistent with the
testimony he or she gave in court?
9.
Was it proved that the witness had been convicted of a felony or a crime involving
dishonesty?
141
10.
Was it proved that the general reputation of the witness for telling the truth and
being honest was bad?
You may rely upon your own conclusion about a witness. A juror may believe or disbelieve
all or any part of the evidence or the testimony of any witness.
Expert witnesses.
Expert witnesses are like other witnesses with one exceptionthe law permits an expert
witness to give an opinion. However, an experts opinion is only reliable when given on a subject
about which you believe that person to be an expert. Like other witnesses, you may believe or
disbelieve all or any part of an experts testimony.
Give only if the defendant did not testify.
A defendant in a criminal case has a constitutional right not to testify at any stage of the
proceedings. You must not draw any inference from the fact that a defendant does not testify.
Give only if the defendant testified.
The defendant in this case has become a witness. You should apply the same rules to
consideration of [his] [her] testimony that you apply to the testimony of the other witnesses.
Rules for deliberation.
These are some general rules that apply to your discussion. You must follow these rules in
order to return a lawful recommendation:
1.
You must follow the law as it is set out in these instructions. If you fail to follow the
law, your recommendation will be a miscarriage of justice. There is no reason for
failing to follow the law in this case. All of us are depending upon you to make a
wise and legal decision in this matter.
2.
Your recommendation must be decided only upon the evidence that you have heard
from the testimony of the witnesses, [have seen in the form of the exhibits in
evidence] and these instructions.
3.
Your recommendation must not be based upon the fact that you feel sorry for
anyone, or are angry at anyone.
4.
Remember, the lawyers are not on trial. Your feelings about them should not
influence your recommendation.
5.
It is entirely proper for a lawyer to talk to a witness about what testimony the
witness would give if called to the courtroom. The witness should not be discredited
by talking to a lawyer about his or her testimony.
6.
142
Because the character of a crime if involving violence or threat of violence is a matter of law,
when the State offers evidence under aggravating circumstance 2 the court shall instruct the jury of the
following, as applicable:
Give 2a or 2b as applicable.
a.
The crime of (previous crime) is a capital felony.
143
b.
3.
4.
The capital felony was committed for the purpose of avoiding or preventing a lawful
arrest or effecting an escape from custody.
6.
7.
The capital felony was committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws.
8.
144
9.
The capital felony was a homicide and was committed in a cold, calculated, and
premeditated manner, without any pretense of moral or legal justification.
Cold means the murder was the product of calm and cool reflection.
Calculated means having a careful plan or prearranged design to commit murder.
A killing is premeditated if it occurs after the defendant consciously decides to
kill. The decision must be present in the mind at the time of the killing. The law
does not fix the exact period of time that must pass between the formation of the
premeditated intent to kill and the killing. The period of time must be long enough
to allow reflection by the defendant. The premeditated intent to kill must be formed
before the killing.
However, in order for this aggravating circumstance to apply, a heightened level of
premeditation, demonstrated by a substantial period of reflection, is required.
A pretense of moral or legal justification is any claim of justification or excuse
that, though insufficient to reduce the degree of murder, nevertheless rebuts the
otherwise cold, calculated, or premeditated nature of the murder.
10.
The victim of the capital felony was a law enforcement officer engaged in the
performance of [his] [her]official duties.
11.
The victim of the capital felony was an elected or appointed public official engaged
in the performance of [his] [her] official duties, if the motive for the capital felony
was related, in whole or in part, to the victims official capacity.
12.
The victim of the capital felony was a person less than 12 years of age.
13.
The victim of the capital felony was particularly vulnerable due to advanced age or
disability, or because the defendant stood in a position of familial or custodial
authority over the victim.
With the following aggravating factor, definitions as appropriate from 874.03, Fla. Stat., must
be given.
14.
The capital felony was committed by a criminal street gang member.
921.141, Fla. Stat.
15.
The capital felony was committed by a person designated as a sexual predator or a
person previously designated as a sexual predator who had the sexual predator
designation removed.
Merging aggravating factors.
Give the following paragraph if applicable. When it is given, you must also give the jury an
example specifying each potentially duplicitous aggravating circumstance. See Castro v. State, 596 So.
2d 259 (Fla. 1992).
The State may not rely upon a single aspect of the offense to establish more than one
aggravating circumstance. Therefore, if you find that two or more of the aggravating
circumstances are proven beyond a reasonable doubt by a single aspect of the offense, you are to
consider that as supporting only one aggravating circumstance.
145
If you find the aggravating circumstances do not justify the death penalty, your advisory
sentence should be one of life imprisonment without possibility of parole.
Mitigating circumstances. 921.141(6), Fla. Stat.
Should you find sufficient aggravating circumstances do exist to justify recommending the
imposition of the death penalty, it will then be your duty to determine whether the mitigating
circumstances outweigh the aggravating circumstances that you find to exist.
A mitigating circumstance is not limited to the facts surrounding the crime. It can be
anything in the life of the defendant which might indicate that the death penalty is not appropriate
for the defendant. In other words, a mitigating circumstance may include any aspect of the
defendants character, background or life or any circumstance of the offense that reasonably may
indicate that the death penalty is not an appropriate sentence in this case.
A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant.
A mitigating circumstance need only be proved by the greater weight of the evidence, which means
evidence that more likely than not tends to prove the existence of a mitigating circumstance. If you
determine by the greater weight of the evidence that a mitigating circumstance exists, you may
consider it established and give that evidence such weight as you determine it should receive in
reaching your conclusion as to the sentence to be imposed.
Among the mitigating circumstances you may consider are:
Give only those mitigating circumstances for which evidence has been presented.
1.
The defendant has no significant history of prior criminal activity.
If the defendant offers evidence on this circumstance and the State, in rebuttal, offers evidence of
other crimes, also give the following:
Conviction of (previous crime) is not an aggravating circumstance to be considered in
determining the penalty to be imposed on the defendant, but a conviction of that crime may be
considered by the jury in determining whether the defendant has a significant history of prior
criminal activity.
2.
The capital felony was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
3.
The victim was a participant in the defendants conduct or consented to the act.
4.
The defendant was an accomplice in the capital felony committed by another person
and [his] [her] participation was relatively minor.
5.
The defendant acted under extreme duress or under the substantial domination of
another person.
6.
The capacity of the defendant to appreciate the criminality of [his] [her] conduct or
to conform [his] [her] conduct to the requirements of law was substantially
impaired.
7.
146
8.
If one or more aggravating circumstances are established, you should consider all the
evidence tending to establish one or more mitigating circumstances and give that evidence such
weight as you determine it should receive in reaching your conclusion as to the sentence that should
be imposed.
Victim impact evidence. Give 1, or 2, or 3, or all as applicable.
You have heard evidence about the impact of this homicide on the
1.
2.
3.
family,
friends,
community
of (decedent). This evidence was presented to show the victims uniqueness as an individual and the
resultant loss by (decedents) death. However, you may not consider this evidence as an aggravating
circumstance. Your recommendation to the court must be based on the aggravating circumstances
and the mitigating circumstances upon which you have been instructed.
Recommended sentence.
The sentence that you recommend to the court must be based upon the facts as you find
them from the evidence and the law. If, after weighing the aggravating and mitigating
circumstances, you determine that at least one aggravating circumstance is found to exist and that
the mitigating circumstances do not outweigh the aggravating circumstances, or, in the absence of
mitigating factors, that the aggravating factors alone are sufficient, you may recommend that a
sentence of death be imposed rather than a sentence of life in prison without the possibility of
parole. Regardless of your findings in this respect, however, you are neither compelled nor required
to recommend a sentence of death. If, on the other hand, you determine that no aggravating
circumstances are found to exist, or that the mitigating circumstances outweigh the aggravating
circumstances, or, in the absence of mitigating factors, that the aggravating factors alone are not
sufficient, you must recommend imposition of a sentence of life in prison without the possibility of
parole rather than a sentence of death.
The process of weighing aggravating and mitigating factors to determine the proper
punishment is not a mechanical process. The law contemplates that different factors may be given
different weight or values by different jurors. In your decision-making process, you, and you alone,
are to decide what weight is to be given to a particular factor.
In these proceedings it is not necessary that the advisory sentence of the jury be unanimous.
The fact that the jury can recommend a sentence of life imprisonment or death in this case
on a single ballot should not influence you to act hastily or without due regard to the gravity of
these proceedings. Before you ballot you should carefully weigh, sift, and consider the evidence,
realizing that human life is at stake, and bring your best judgment to bear in reaching your
advisory sentence.
If a majority of the jury, seven or more, determine that (defendant) should be sentenced to
death, your advisory sentence will be:
147
148
149
Assault
784.011, Fla.Stat.
Aggravated Assault
784.021, Fla.Stat.
8.3
Battery
784.03, Fla.Stat.
8.4
Aggravated Battery
784.045, Fla.Stat.
8.4(a) Aggravated Battery (Pregnant Victim)
784.045, Fla.Stat.
8.5
Felony Battery
784.041, Fla.Stat.
8.5(a) Domestic Battery by Strangulation
784.041(2)(a), Fla. Stat.
8.6
Stalking
784.048(2), Fla.Stat.
8.7
Aggravated Stalking
8.7(a) 784.048(3), Fla.Stat.
8.7(b) Aggravated Stalking (Injunction Entered) 784.048(4), Fla.Stat.
8.8
Aggravated Stalking (Victim under 16 years of Age)
784.048(5), Fla.Stat.
8.9
Culpable Negligence
784.05, Fla.Stat.
8.10
Assault on a Law Enforcement Officer , Firefighter, Etc.
784.07(2)(a), Fla.Stat.
8.11
Battery on Law Enforcement Officer, Firefighter, Etc.
784.07(2)(b), Fla.Stat.
8.12
Aggravated Assault Law Enforcement Officer, Firefighter, Etc.
784.07(2)(c), Fla.Stat.
8.13
Aggravated Battery Law Enforcement Officer, Firefighter, Etc.
784.07(2)(d), Fla.Stat.
8.14
Aggravated Battery on Person 65 Years of Age or Older
784.08(2)(a), Fla.Stat.
8.15
Aggravated Assault on Person 65 Years of Age or Older
784.08(2)(b), Fla.Stat.
8.16
Battery on Person 65 Years of Age or Older
784.08(2)(c), Fla.Stat.
8.17
Assault on Person 65 Years of Age or Older
784.08(2)(d), Fla.Stat.
8.18
Violation of Domestic Violence Injunction
[ 741.31(4)(a), Fla. Stat.
8.19
Violation of Repeat Violence , Sexual Violence or Dating Violence Injunction
784.047, Fla. Stat.
8.20
Battery on Facility Employee
784.078, Fla.Stat.
8.2
150
8.1 ASSAULT
784.011, Fla.Stat.
To prove the crime of Assault, the State must prove the following three elements beyond a
reasonable doubt:
1.
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
Lesser Included Offenses
CATEGORY ONE
None
ASSAULT 784.011
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981 and amended in 1997.
151
1.
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
Give 4a or 4b as applicable.
4. a. [The assault was made with a deadly weapon.]
b. [The assault was made with a fully-formed, conscious intent to commit (crime
charged) upon (victim).]
If 4b is alleged, define the crime charged.
Definition. Give if 4a alleged.
A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to
produce death or great bodily harm.
Give if 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
CATEGORY ONE
Assault
152
INS. NO.
8.1
5.1
10.5
10.6
8.3 BATTERY
784.03, Fla.Stat.
To prove the crime of Battery, the State must prove the following element beyond a
reasonable doubt:
Give 1 or 2 as applicable.
1.
[(Defendant) intentionally touched or struck (victim) against [his] [her] will.]
2.
CATEGORY ONE
None
BATTERY 784.03
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Comment
This instruction was approved in 1981.
153
(Defendant)
[intentionally touched or struck (victim) against [his] [her] will].
[intentionally caused bodily harm to (victim)].
Give 2a or 2b as applicable.
2.
(Defendant) in committing the battery
a.
b.
INS. NO.
8.3
8.5
5.1
10.5
10.6
Comment
The lesser included offense of Felony Battery is only applicable if element 2a is charged and
proved.
This instruction was approved in 1981 and amended in 1989 [543 So.2d 1205], and 2007.
154
2.
3.
(Defendant) in committing the battery knew or should have known that (victim) was
pregnant.
Lesser Included Offenses
INS. NO.
8.3
5.1
Comment
This instruction was approved in 2007. See Small v State, 889 So.2d 862 (Fla. 1st DCA 2004).
155
(Defendant) actually and intentionally touched or struck (victim) against [his] [her]
will; and
2.
CATEGORY ONE
Battery
INS. NO.
8.3
Comment
This instruction is based on the text of 784.041, Fla. Stat. (1997), and generally patterned after
the standard instructions on battery and aggravated battery.
This instruction was adopted in 2000.
156
2.
3.
Give as applicable.
Family or household member means spouses, former spouses, persons related by blood
or marriage, persons who are presently residing together as if a family or who have resided together
in the past as if a family, and persons who are parents of a child in common regardless of whether
they have been married. With the exception of persons who have a child in common, the family or
household members must be currently residing or have in the past resided together in the same
single dwelling unit.
Dating relationship means a continuing and significant relationship of a romantic or
intimate nature.
Lesser Included Offenses
FELONY DOMESTIC BATTERY BY STRANGULATION 784.041(2)(a)
CATEGORY ONE
CATEGORY TWO
Battery
None
Comment
This instruction was adopted in 2008.
157
FLA. STAT.
INS. NO.
784.03
8.3
8.6 STALKING
784.048(2), Fla. Stat.
To prove the crime of Stalking, the State must prove the following element beyond a
reasonable doubt:
(Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked]
(victim).
Definitions.
Harass means to engage in a course of conduct directed at a specific person that causes
substantial emotional distress in such person and serves no legitimate purpose.
Cyberstalk means to engage in a course of conduct to communicate, or to cause to be
communicated, words, images, or language by or through the use of electronic mail or electronic
communication, directed at a specific person, causing substantial emotional distress to that person
and serving no legitimate purpose.
Lesser Included Offenses
STALKING 784.048(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 to include
cyberstalking.
158
2.
(Defendant) made a credible threat with the intent to place (victim) in reasonable
fear of death or bodily injury to [himself] [herself] [(name of the subject of threat)].
Give if applicable.
(Name of subject of threat) was (victim)s [child] [sibling][spouse] [parent] [dependent].
Definitions.
Harass means to engage in a course of conduct directed at a specific person that causes
substantial emotional distress in such person and serves no legitimate purpose.
Cyberstalk means to engage in a course of conduct to communicate, or to cause to be
communicated, words, images, or language by or through the use of electronic mail or electronic
communication, directed at a specific person, causing substantial emotional distress to that person
and serving no legitimate purpose.
Credible threat means a threat made with the intent to cause the person who is the target
of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a
threat to cause bodily injury to, a person.
Lesser Included Offenses
AGGRAVATED STALKING 784.048(3)
CATEGORY ONE
CATEGORY TWO
Stalking
FLA. STAT.
INS. NO.
784.048(2)
8.6
Attempt
777.04(1)
5.1
Assault
784.011
8.1
790.10
10.5
Comment
This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 to incorporate
cyberstalking.
159
Give 2a or 2b as applicable.
2.
At the time of the [following] [harassing] [cyberstalking],
3.
a.
b.
Definitions.
Harass means to engage in a course of conduct directed at a specific person that causes
substantial emotional distress in such person and serves no legitimate purpose.
Cyberstalk means to engage in a course of conduct to communicate, or to cause to be
communicated, words, images, or language by or through the use of electronic mail or electronic
communication, directed at a specific person, causing substantial emotional distress to that person
and serving no legitimate purpose.
Maliciously means wrongfully, intentionally, and without legal justification or excuse.
Lesser Included Offenses
AGGRAVATED STALKING (Injunction Entered) 784.048(4)
CATEGORY ONE
CATEGORY TWO
Stalking
FLA. STAT.
INS. NO.
784.048(2)
8.6
Attempt
777.04(1)
5.1
741.31(4)
8.16
784.047
8.19
Comment
160
See Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). This instruction was adopted in 1995
[657 So.2d 1152] and was amended in 2007 [953 So. 2d 495], and 2008.
161
2.
Definitions.
Harass means to engage in a course of conduct directed at a specific person that causes
substantial emotional distress in such person and serves no legitimate purpose.
Cyberstalk means to engage in a course of conduct to communicate, or to cause to be
communicated, words, images, or language by or through the use of electronic mail or electronic
communication, directed at a specific person, causing substantial emotional distress to that person
and serving no legitimate purpose.
Lesser Included Offenses
AGGRAVATED STALKING (Victim under 16 years of age) 784.048(5)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
784.048(2)
8.6
Attempt
777.04(1)
5.1
741.31(4)
8.18
Stalking
Comment
This instruction is based on the text of section 784.048(5), Florida Statutes (1997), and generally
patterned after the standard instructions on stalking and aggravated stalking.
This instruction was adopted in 2000 [765 So.2d 692] and amended in 2007 [953 So. 2d 495] to
incorporate cyberstalking.
162
(Defendant)
Give 1a or 1b as applicable.
a. [exposed (victim) to personal injury].
b. [inflicted actual personal injury on (victim)].
2.
Give if 1a alleged.
Actual injury is not required.
Definition
I will now define "culpable negligence" for you. Each of us has a duty to act reasonably
toward others. If there is a violation of that duty, without any conscious intention to harm, that
violation is negligence. But culpable negligence is more than a failure to use ordinary care for
others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is
a course of conduct showing reckless disregard for human life, or for the safety of persons exposed
to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious
indifference to consequences, or which shows wantonness or recklessness, or a grossly careless
disregard for the safety and welfare of the public, or shows such an indifference to the rights of
others as is equivalent to an intentional violation of such rights.
Lesser Included Offenses
CATEGORY ONE
Culpable negligence
163
INS. NO.
8.9
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
4.
(Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical
care provider] [traffic accident investigation officer] [traffic infraction enforcement
officer] [parking enforcement specialist] [security officer employed by the board of
trustees of a community college] [federal law enforcement officer].
5.
6.
At the time of the assault, (victim) was engaged in the lawful performance of [his]
[her] duties.
The court now instructs you that (name of official position of victim designated in charge) is a
[law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident
investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a community college] [federal law
enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of
officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586
So.2d 1024 (Fla. 1991).
Lesser Included Offenses
ASSAULT ON LAW ENFORCEMENT OFFICER FIREFIGHTER, ETC.
784.07(2)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Assault
784.011
Attempt
777.04(1)
164
INS. NO.
8.1
5.1
Comment
Several statutes have been added in recent years providing for reclassification of assaults and
batteries on designated classes: 784.074, 784.075, 784.076, 784.078, 784.081, 784.082, 784.083, and
784.085.
This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So.2d 1175], 1995 [657
So.2d 1152], 2007 [962 So. 2d 310], and 2008.
165
(Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim)].
2.
3.
4.
(Victim) was engaged in the lawful performance of [his] [her] duties when the
battery was committed.
The court now instructs you that (name of official position of victim designated in charge) is a
[law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident
investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a community college] [federal law
enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of
officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586
So.2d 1024 (Fla. 1991).
Lesser Included Offenses
BATTERY ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.
784.07(2)(b)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Battery
784.03
Attempt
777.04(1)
INS. NO.
8.3
5.1
Comment
This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So.2d 1175],
1995 [657 So.2d 1152], 2007 [962 So. 2d 310], and 2008.
166
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
Give 4a or 4b as applicable.
4.
a.
The assault was made with a deadly weapon.
b.
The assault was made with a fully-formed, conscious intent to commit (crime
charged) upon (victim).
7.
At the time of the assault, (victim) was engaged in the lawful performance of [his]
[her] duties.
The court now instructs you that (name of official position of victim designated in charge) is a
[law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident
investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a community college] [federal law
enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of
officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586
So.2d 1024 (Fla. 1991).
Definition. Give if 4a alleged.
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to
produce death or great bodily harm.
167
Give if 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER, ETC. - 784.07(2)(c)
CATEGORY ONE
CATEGORY TWO
FLA. STAT
INS. NO.
Aggravated assault
784.021
8.2
Assault on law on
784.07(2)(a)
8.10
enforcement officer
Assault
784.011
8.1
Attempt
777.04(1)
5.1
Improper exhibition of dangerous
790.10
10.5
weapons or firearms
Discharging firearms in public
790.15
10.6
Comment
This instruction was approved in 1992 [603 So.2d 1175], and amended in 1995 [657 So.2d 1152],
2007 [962 So. 2d 310], and 2008.
168
(Defendant)
[intentionally touched or struck (victim) against [his] [her] will]
[intentionally caused bodily harm to (victim)].
Give 2a or 2b as applicable.
2.
(Defendant) in committing the battery
a.
b.
3.
4.
5.
(Victim) was engaged in the lawful performance of [his][her] duties when the battery
was committed against [him][her].
The court now instructs you that (name of official position of victim designated in charge) is a
[law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident
investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a community college] [federal law
enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of
officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586
So.2d 1024 (Fla. 1991).
Definition. Give if 2b alleged.
169
170
(Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim)].
Give 2a or 2b as applicable.
2.
(Defendant) in committing the battery
a.
b.
3.
171
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
Give 4a or 4b.
4. a. [The assault was made with a deadly weapon.]
b. [The assault was made with a fully-formed conscious intent to commit (crime
charged) upon (victim).]
If 4b is alleged, define the crime charged.
5.
172
173
(Defendant) intentionally [touched or struck (victim) against [his] [her] will] [caused
bodily harm to (victim)].
2.
174
2.
At the time, (defendant) appeared to have the ability to carry out the threat.
3.
The act of (defendant) created in the mind of (victim) a well-founded fear that the
violence was about to take place.
4.
175
A temporary or final injunction for protection against domestic violence was issued
by a court against (defendant).
2.
Definition.
Willfully means knowingly, intentionally and purposely.
Lesser Included Offenses
VIOLATION OF DOMESTIC VIOLENCE INJUNCTION 741.31
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Attempt
777.04(1)
INS. NO.
5.1
Comment
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August 30, 2007].
176
An injunction for protection against [repeat] [sexual] [dating] violence was issued by
a court against (defendant).
2.
Definition.
Willfully means knowingly, intentionally and purposely.
Lesser Included Offenses
VIOLATION OF REPEAT VIOLENCE, SEXUAL VIOLENCE, OR DATING VIOLENCE
INJUNCTION 784.047
CATEGORY ONE
CATEGORY TWO
FLA. STAT
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August 30, 2007].
177
2.
3.
4.
5.
(Defendant) knew (victim) or had reason to know that (victim) was a facility
employee.
Definitions
A "facility" is any state correctional institution, private correctional facility, county,
municipal, or regional jail or other detention facility of local government, or any secure facility
operated and maintained by the Department of Corrections or the Department of Juvenile Justice.
An "employee" is any person [employed by or performing contractual services for a public
or private entity operating a facility] [or] [employed by or performing contractual services for the
corporation operating the prison enhancement programs or the correctional work programs] [or]
[who is a parole examiner with the Florida Parole Commission].
Lesser Included Offenses
BATTERY ON FACILITY EMPLOYEE 784.078
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Battery
784.03(1)(a)
Assault
784.011
Comment
This instruction was adopted in 2003.
178
INS. NO.
8.3
8.1
KIDNAPPING
9.1
9.2
Kidnapping
787.01, Fla.Stat.
False Imprisonment
787.02, Fla.Stat.
179
9.1 KIDNAPPING
787.01, Fla.Stat.
To prove the crime of Kidnapping, the State must prove the following three elements
beyond a reasonable doubt:
1.
2.
3.
180
KIDNAPPING 787.01
CATEGORY TWO
FLA. STAT.
787.02
Attempt
777.04(1)
Aggravated assault
784.021
Battery
784.03
Assault
784.011
Comment
181
INS. NO.
9.2
5.1
8.2
8.3
8.1
2.
777.04(1)
784.03
784.011
INS. NO.
5.1
8.3
8.1
Comment
This instruction was adopted in 1985 [477 So. 2d 985] and amended in 1998 [723 So. 2d 123].
182
WEAPONS OFFENSES
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
183
1.
2.
The (weapon alleged) was concealed from the ordinary sight of another person.
Definition
A "concealed [weapon] [electric weapon or device] [firearm]" is legally defined as (adapt
from 790.001, Fla.Stat., as required by allegations).
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
184
INS. NO.
5.1
INS. NO.
5.1
185
[He] [She] did so while committing or attempting to commit the felony of (felony
alleged).
1.
Define the felony alleged. If Burglary, also define crime that was object of the burglary.
2.
3.
Adapt the definition of the weapon or firearm alleged from 790.001, Fla.Stat., as
required by the allegations.
Lesser Included Offenses
186
187
2.
3.
Defense
If you find that the defendant committed (crime charged) in necessary self-defense, you must
find [him] [her] not guilty.
Lesser Included Offenses
IMPROPER EXHIBITION OF WEAPON 790.10
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Attempt
777.04(1)
Assault
784.011
Comment
This instruction was adopted in 1981.
188
INS. NO.
5.1
8.1
189
INS. NO.
5.1
1.
190
191
1.
192
193
1.
2.
Definition
A "destructive device" is defined as (adapt from 790.001(4), Fla.Stat., as required by the
allegations).
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
DESTRUCTIVE DEVICE 790.161(3)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Possessing, throwing,
790.161(1)
10.7(a)
making, placing, projecting,
or discharging destructive
device
Possessing, throwing,
790.161(2)
10.7(b)
making, placing, projecting,
or discharging destructive
device
Aggravated assault
784.021
8.2
Assault
784.011
8.1
Comment
This instruction was adopted in 1992.
194
1.
2.
Definition
A "destructive device" is defined as (adapt from 790.001(4), Fla.Stat., as required by the
allegations).
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
DESTRUCTIVE DEVICE 790.161(4)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Possessing, throwing,
790.161(1)
10.7(a)
making, placing, projecting,
or discharging destructive
device
Possessing, throwing,
790.161(3)
10.7(c)
making, placing, projecting,
or discharging destructive
device
Possessing, throwing,
790.161(2)
10.7(b)
making, placing, projecting,
or discharging destructive
device
Aggravated assault
784.021
8.2
Assault
784.011
8.1
Comment
This instruction was adopted in 1992.
195
(Defendant) threatened to
[throw]
[place]
[project]
[discharge]
a destructive device.
2.
Definition
A "destructive device" is defined as (adapt from 790.001(4), Fla.Stat., as required by the
allegations).
Lesser Included Offenses
THREAT TO THROW, PROJECT, PLACE, OR DISCHARGE ANY DESTRUCTIVE
DEVICE 790.162
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Assault
784.011
8.1
Comment
This instruction was adopted in 1981 and was amended in 1989.
196
(Defendant) made a false report to (person receiving report) concerning the placing or
planting of (explosive alleged).
2.
3.
The report was made with intent to deceive, mislead or otherwise misinform (person
alleged).
Definition
"(Explosive alleged)" is defined as (adapt the definition of the explosive alleged from
790.001(5), Fla.Stat., as required by the allegations).
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and was amended in 1985.
197
2.
3.
4.
The report was made with the intent to deceive, mislead or otherwise misinform
(person alleged).
Definition
"(Explosive alleged)" is defined as (adapt the definition of the explosive alleged from
790.001(5), Fla.Stat., as required by the allegations).
Lesser Included Offenses
FALSE REPORTS OF BOMBING OR ARSON OR OTHER VIOLENCE TO PROPERTY
OWNED BY THE STATE 790.164
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
False reports of bombing
790.163
10.9
Comment
This instruction was adopted in 1981 and was amended in 1985.
198
(Defendant)
[sold]
[hired]
[bartered]
[lent]
[gave]
(weapon alleged) to (minor alleged).
2.
Definition
A "weapon" is legally defined as (adapt from 790.001, Fla.Stat., as required by the
allegations).
Defenses
It is a defense to this charge that the parent or guardian of the minor consented to
the transaction.
If you find that the (weapon alleged) was an ordinary or common pocketknife, you
must find the defendant not guilty.
Lesser Included Offenses
FURNISHING WEAPONS TO MINORS UNDER 18 YEARS OF AGE, ETC. 790.17
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981.
199
2.
In the course of that business (defendant) sold to (minor alleged) the (weapon alleged).
3.
Definitions
A "dealer in arms" is a person who buys and sells weapons or firearms.
A "(weapon or firearm alleged)" is legally defined as (adapt from 790.001, Fla.Stat., as
required by the allegations).
Lesser Included Offenses
SELLING ARMS TO MINORS BY DEALERS 790.18
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Attempt
777.04(1)
Comment
This instruction was adopted in 1981 and was amended in 1992.
200
INS. NO.
5.1
(Defendant)
[shot a firearm].
[threw a missile].
[hurled or projected a stone or other hard substance that would produce
death or great bodily harm].
2.
3.
Definitions
"Wantonly" means consciously and intentionally, with reckless indifference to consequences
and with the knowledge that damage is likely to be done to some person.
"Maliciously" means wrongfully, intentionally, without legal justification or excuse, and
with the knowledge that injury or damage will or may be caused to another person or the property
of another person.
Give if applicable.
A "firearm" is legally defined as (adapt from 790.001, Fla.Stat., as required by allegations).
Lesser Included Offenses
SHOOTING OR THROWING MISSILES IN DWELLING 790.19
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Discharging firearm in public 790.15
10.6
Comment
This instruction was adopted in 1981.
201
2.
The (firearm alleged) was one that was, or could readily be made, operable.
Defenses
If you find that the (firearm alleged) was lawfully owned and possessed under provisions of
the federal law, you shall find the defendant not guilty.
This law does not apply to antique firearms.
Definitions. Give as applicable.
"Care" and "custody" mean immediate charge and control exercised by a person over the
named object. The terms care, custody, and control may be used interchangeably.
A ["short-barreled rifle"] ["short-barreled shotgun"] ["machine gun"] is legally defined as
(adapt from 790.001(9), (10), or (11), Fla.Stat., as required by the allegations).
An "antique firearm" is legally defined as (adapt from 790.001(1), Fla.Stat., as required by
the allegations).
To "possess" means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive. If a thing is in the hand of or on the person, or in
a bag or container in the hand of or on the person, or is so close as to be within ready reach and is
under the control of the person, it is in the actual possession of that person.
If a thing is in a place over which the person has control or in which the person has hidden
or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an
article, exercising control over it. In that case, each of those persons is considered to be in possession
of that article.
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not
be inferred or assumed.
202
203
INS. NO.
5.1
Give 2a or 2b as applicable.
2.
After the conviction, (defendant) knowingly
a.
b.
Definitions.
Convicted means that a judgment has been entered in a criminal proceeding by a court
pronouncing the accused guilty.
Give as appropriate.
[A firearm] [Ammunition] [An electric weapon or device] [A concealed weapon] is
legally defined as (insert the definition in 790.001, Fla. Stat.).
Give if appropriate.
A deadly weapon is legally defined as one likely to produce death or great bodily injury.
Give if 2a alleged.
Care and custody mean immediate charge and control exercised by a person over the
named object. The terms care, custody, and control may be used interchangeably.
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over an object.
Possession may be actual or constructive.
Actual possession means
a.
b.
c.
the object is so close as to be within ready reach and is under the control of
the person.
204
Give if applicable.
Mere proximity to an object is not sufficient to establish control over the object when the
object is not in a place over which the person has control.
Constructive possession means the object is in a place over which (defendant) has control, or
in which (defendant) has concealed it.
If an object is in a place over which (defendant) does not have control, the State establishes
constructive possession if it proves that (defendant) (1) has knowledge that the object was within
(defendants) presence, and (2) has control over the object.
Possession may be joint, that is, two or more persons may jointly possess an object,
exercising control over it. In that case, each of those persons is considered to be in possession of that
object.
If a person has exclusive possession of an object, knowledge of its presence may be inferred
or assumed.
If a person does not have exclusive possession of an object, knowledge of its presence may
not be inferred or assumed.
Lesser Included Offenses
FELONS CARRYING A CONCEALED WEAPON OR POSSESSING
FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE 790.23
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt (may be applicable
when concealed weapon is
charged)
777.04(1)
5.1
790.01(2)
10.1
790.01(1)
10.1
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1992 [603 So.2d
1175] and 2007 [953 So. 2d 495].
205
2.
(Defendant) was under the influence of [an alcoholic beverage] [any chemical
substance] [any controlled substance] when affected to the extent that [his] [her]
normal faculties were impaired, when using the firearm.
Definitions.
790.001(6), Fla. Stat.
Firearm means any weapon (including a starter gun) which will, is designed to, or may
readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any
such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun.
The term firearm does not include an antique firearm unless the antique firearm is used in the
commission of a crime.
Use a firearm means to discharge a firearm or to have a firearm readily accessible for
immediate discharge.
Readily accessible for immediate discharge means loaded and in a person's hand.
Give if applicable.
Alcoholic beverages are considered to be substances of any kind and description which
contain alcohol.
877.111, Fla. Stat.
(Chemical substance) is a chemical substance under Florida law.
Ch. 893, Fla. Stat.
(Controlled substance) is a controlled substance under Florida law.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007.
206
207
3.
A firearm means any weapon (including a starter gun) which will, is designed to, or may
readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any
such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun.
Give if possession charged.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a firearm is not sufficient to establish control over that firearm when it is
not in a place over which the person has control.
Constructive possession means the firearm is in a place over which (defendant) has control,
or in which (defendant) has concealed it.
208
If the firearm is in a place over which (defendant) does not have control, the State establishes
constructive possession if it proves that (defendant) (1) has knowledge that the firearm was within
[his] [her] presence, and (2) has control over the firearm.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of the firearm, knowledge of its presence may be
inferred or assumed.
If a person does not have exclusive possession of the firearm, knowledge of its presence may
not be inferred or assumed.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
This instruction was adopted in 2009.
209
2.
3.
4.
At the time of the incident, (victim) was engaged in the lawful performance of [his]
[her] duties.
The court now instructs you that (name of official position of victim designated in charge) is a
law enforcement officer. Do not read the name of the victim in this part of the instruction.
Lesser Included Offenses
CATEGORY ONE
None
784.03(1)(a)
INS. NO.
8.3
Comment
This instruction is based on section 790.054, Florida Statutes (1997). In giving this instruction,
do not refer to the victim by name in the last sentence of the instruction. That sentence must state the
class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v.
State, 586 So. 2d 1025 (Fla. 1991).
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008.
210
SEX OFFENSES
11.1
211
212
213
c.
d.
Give 3a or 3b as applicable.
3.
a.
(Defendant) was 18 years of age or older at the time of the sexual battery.
b.
(Defendant) was less than 18 years of age at the time of the sexual battery.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.
Definition. Give if applicable.
Union means contact.
In the event that multiple perpetrators is charged and proven, give instruction on enhancement.
794.023, Fla. Stat.
The option of the word [with] (victim) in 2a and 2c is provided to reflect the manner in which
the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.
Lesser Included Offenses
SEXUAL BATTERY VICTIM UNDER 12 794.011(2)(a)(b)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Battery
784.03
Solicitation by person in familial
794.011(8)(c)
214
INS. NO.
8.3
11.5
authority
Attempt
Assault
Aggravated assault
Aggravated battery
777.04(1)
784.011
784.021(1)(a)
784.045(1)(a)
5.1
8.1
8.2
8.4
Comment
This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1995 [657
So.2d 1152], and 2007, by adding 3(a) and 3(b) pursuant to Glover v. State, 863 So.2d 236 (Fla. 2003).
215
1.
2.
a.
b.
3.
4.
b.
Definitions.
Give in all cases.
Consent means intelligent, knowing, and voluntary consent and does not include coerced
submission. Consent does not mean the failure by the alleged victim to offer physical resistance to
the offender.
Give if applicable.
Evidence of the victims mental incapacity or defect, if any, may be considered in
determining whether there was an intelligent, knowing, and voluntary consent.
Mentally incapacitated means that a person is rendered temporarily incapable of
appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or
intoxicating substance administered to that person without his or her consent, or due to any other
act committed upon that person without his or her consent.
Mentally defective means that a person suffers from a mental disease or defect that
renders that person temporarily or permanently incapable of appraising the nature of his or her
conduct.
Union means contact.
Give if 3a alleged.
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to
produce death or great bodily harm.
216
Give if 3b alleged.
Serious personal injury means great bodily harm or pain, permanent disability, or
permanent disfigurement.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.
In the event that multiple perpetrators is charged and proven, give instruction on enhancement.
794.023, Fla. Stat.
The option of the word [with] (victim) in 2a is provided to reflect the manner in which the
crime was committed. See Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986), at pages 627, 628.
Lesser Included Offenses
SEXUAL BATTERY VICTIM OVER 12 WEAPON OR FORCE 794.011(3)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Sexual battery
794.011(5)
11.4
Battery
784.03
8.3
Sexual battery
794.011(4)
11.3
Attempt
777.04(1)
5.1
Lewd or lascivious battery
800.04(4)
11.10
Aggravated battery
784.045(1)(a)
8.4
Aggravated assault
784.021(1)(a)
8.2
Assault
784.011
8.1
Comment
This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1995 [657
So.2d 1152], 2003 [850 So.2d 1272], and 2008.
217
1.
2.
a.
b.
a.
b.
c.
d.
e.
[(Victim) was mentally defective and (defendant) had reason to believe this or
had actual knowledge of that fact.]
f.
g.
[(Defendant) was at the time a[n] (insert official title or position) and was a[n]
[certified [law enforcement officer] [correctional officer] [correctional
probation officer]] [elected official exempt from certification] [person in
a position of control or authority in a probation, community control,
controlled release, detention, custodial, or similar setting] and the
[officer] [official] [person] was acting in such a manner as to lead (victim) to
reasonably believe that (defendant) was in a position of control or
authority as an agent or employee of government.]
3.
4.
Definitions.
218
219
220
Give 2a or 2b as applicable.
2. a. [(Defendant) committed an act [upon] [with] (victim) in which the sexual organ of
the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] of the
[(victim)] [(defendant)].]
b. [(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim)
was penetrated by an object.]
3.
Definitions
Give in all cases.
"Consent" means intelligent, knowing, and voluntary consent and does not include coerced
submission. Consent does not mean the failure by the alleged victim to offer physical resistance to
the offender.
Give if applicable.
Evidence of the victim's mental incapacity or defect, if any, may be considered in
determining whether there was an intelligent, knowing, and voluntary consent.
"Mentally incapacitated" means that a person is rendered temporarily incapable of
appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or
intoxicating substance administered to that person without his or her consent, or due to any other
act committed upon that person without his or her consent.
"Mentally defective" means that a person suffers from a mental disease or defect that
renders that person temporarily or permanently incapable of appraising the nature of his or her
conduct.
Give if applicable.
"Union" means contact.
However, any act done for bona fide medical purposes is not a sexual battery.
In the event that multiple perpetrators is charged and proven, give instruction on enhancement.
794.023, Fla.Stat.
The option of the word "[with] (victim)" in 2a is provided to reflect the manner in which the crime
was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.
221
222
2.
3.
It is not necessary that a sexual battery actually take place for the crime to be completed.
It is not a defense that (victim) was willing to engage in an act which constitutes sexual
battery or consented to engage in such acts.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.
Definition. Give if applicable.
"Union" means contact.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1987 and was amended in 1995 and 1997.
223
11.6 SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER BUT UNDER 18
YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY
794.011(8)(b), Fla. Stat.
To prove the crime of Sexual Battery Upon a Child by a Person in a Familial or Custodial
Authority, the State must prove the following three elements beyond a reasonable doubt:
1.
(Victim) was 12 years of age or older but less than 18 years of age.
2.
3.
[the sexual organ of the [(defendant)] [(victim)] penetrated or had union with
the [anus] [vagina] [mouth] of the [(victim)] [(defendant)]].
b.
It is not a defense that (victim) was willing to engage in acts which would constitute a sexual
battery or consented to engage in such acts.
Give if applicable.
However, any act done for bona fide medical purposes is not a sexual battery.
Definition. Give if applicable.
Union means contact.
Lesser Included Offenses
SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER BUT UNDER 18
YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY
794.011(8)(B)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Lewd or lascivious battery
800.04(4)
11.10
Comment
This instruction was adopted 1987 [508 So.2d 1221] and was amended in 1995 [657 So.2d 1152],
1997 [697 So.2d 84], and 2008.
224
2.
3.
[(Defendant) engaged in sexual activity with a minor in which the sexual organ of the
[(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of
the [(victim)] [(defendant)].]
Give if applicable.
Sexual activity does not include an act done for a bona fide medical purpose.
Lesser Included Offenses
UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS 794.05
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1998.
If removal of the disabilities of nonage is raised as an issue pursuant to 794.05(2), Fla.Stat., the
jury should be instructed with respect to 743.01 et seq.
225
1.
2.
Definitions.
"Unnatural" means not in accordance with nature or with normal feelings or behavior.
"Lascivious" means a wicked, lustful or unchaste, licentious, or sensual intent on the part of
the person doing an act.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
Comment
226
INS. NO.
5.1
(Defendant)
[exposed or exhibited [his] [her] sexual organs].
[was naked].
2.
3.
(Defendant) intended the [exposure or exhibition of [his] [her] sexual organs] [or]
[nakedness] to be in a vulgar, indecent, lewd, or lascivious manner.
4.
The [exposure or exhibition of the sexual organs] [or] [nakedness] was in a vulgar,
indecent, lewd, or lascivious manner.
800.02
INS. NO.
11.8
Comment
This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84] and 2010.
227
Give as applicable.
2.
(Defendant)
a. [made an assault upon (victim) in a lewd, lascivious, or indecent manner].
[handled or fondled (victim) in a lewd, lascivious, or indecent manner].
b. (Defendant) committed upon (victim) or forced or enticed (victim) to commit
[actual or simulated sexual intercourse].
[deviate sexual intercourse].
[sexual bestiality].
[masturbation].
[sadomasochistic abuse].
[actual lewd exhibition of the genitals].
[any act or conduct which simulated that sexual battery was being or would
be committed on (victim)].
c. (Defendant)
[committed an act [upon] [with] (victim) in which the sexual organ of the
[(defendant)] [(victim)] penetrated or had union with the [anus] [vagina]
[mouth] of [(victim)] [(defendant)]].
[committed an act upon (victim) in which the [anus] [vagina] of (victim) was
penetrated by an object].
d. (Defendant) knowingly committed a lewd or lascivious act in the presence of (victim).
Definitions.
Give in all cases.
Neither the victims lack of chastity nor the victims consent is a defense to the crime
charged.
Give when 800.04(1), Fla. Stat., is charged.
As used in regard to this offense the words lewd, lascivious, and indecent mean the
same thing. They mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the
person doing an act.
Give when assault is charged under 800.04(1), Fla. Stat.
228
229
(Victim) was twelve years of age or older, but under the age of sixteen years.
2.
(Defendant)
a.
[committed an act [upon] [with] (victim) in which the sexual organ of the
[(defendant)] [(victim)] penetrated or had union with the [anus] [vagina]
[mouth] of the [(victim)] [(defendant)].]
b.
[committed an act upon (victim) in which the [anus] [vagina] of (victim) was
penetrated by an object.]
Definition.
Union means contact.
However, any act done for bona fide medical purposes is not a lewd or lascivious battery.
Neither the victims lack of chastity nor victims consent is a defense to the crime charged.
The defendants ignorance of victims age, victims misrepresentation of his or her age, or
the defendants bona fide belief of victims age is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY) 800.04(4)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Assault
784.011
8.1
Battery
784.03
8.3
800.02
11.8
None
Comment
This instruction was adopted in 2007. [SC05-1434, October 25, 2007]
230
2.
Definitions.
Sexual activity means the oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however, sexual
activity does not include an act done for a bona fide medical purpose.
Union means contact.
827.071(d) and 847.001(13), Fla. Stat.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
827.071(f) and 847.001(15), Fla. Stat.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
Neither the victims lack of chastity nor victims consent is a defense to the crime charged.
The defendants ignorance of victims age, victims misrepresentation of his or her age, or
the defendants bona fide belief of victims age is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR ENTICING) 800.04(4)
(b)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Assault
784.011
8.1
Battery
784.03
8.3
800.02
11.8
None
231
Comment
This instruction was adopted in 2007. [SC05-1434, October 25, 2007].
232
b.
Give 2a or 2b as applicable.
2.
(Defendant)
a.
b.
Give 3a or 3b as applicable.
3.
(Defendant)
a.
b.
Definition.
The words lewd and lascivious mean the same thing and mean a wicked, lustful,
unchaste, licentious, or sensual intent on the part of the person doing an act.
Neither (victims) lack of chastity nor consent is a defense to the crime charged.
The defendants ignorance of victims age, victims misrepresentation of [his] [her] age, or
the defendants bona fide belief of (victims) age is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS MOLESTATION 800.04(5)
CATEGORY ONE
CATEGORY TWO
None
233
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Assault
784.011
8.1
Battery
784.03
8.3
800.02
11.8
Comment
This instruction was adopted in 2008.
234
2.
(Defendant)
a.
b.
Give 3a or 3b as applicable.
3.
a.
(Defendant) was 18 years of age or older at the time of the offense.
b.
(Defendant) was less than 18 years of age at the time of the offense.
Definitions.
The words lewd and lascivious mean the same thing and mean a wicked, lustful,
unchaste, licentious, or sensual intent on the part of the person doing an act.
To solicit means to ask earnestly or to try to induce the person solicited to do the thing
solicited.
Neither (victims) lack of chastity nor (victims) consent is a defense to the crime charged.
The defendants ignorance of (victims) age, (victims) misrepresentation of [his] [her] age,
or the defendants bona fide belief of (victims) age is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS CONDUCT 800.04(6)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Assault
784.011
8.1
Battery
784.03
8.3
800.02
11.8
None
Comment
This instruction was adopted in 2008.
235
2.
(Defendant)
3.
a.
[intentionally masturbated].
b.
c.
Give 4a or 4b as applicable.
4.
a.
(Defendant) was 18 years of age or older at the time of the offense.
b.
(Defendant) was less than 18 years of age at the time of the offense.
Definitions.
The words lewd and lascivious mean the same thing and mean a wicked, lustful,
unchaste, licentious, or sensual intent on the part of the person doing an act.
800.04(1)(a), Fla. Stat.
Sexual activity means the oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however, sexual
activity does not include an act done for a bona fide medical purpose.
847.001(13), Fla. Stat.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or
the condition of being fettered, bound, or otherwise physically restrained, for the purpose of
deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from
inflicting harm on another or receiving such harm oneself.
847.001(15), Fla. Stat.
Sexual bestiality means any sexual act, actual or simulated, between a person and an
animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
800.04, Fla. Stat. See State v. Werner, 609 So.2d 585 (Fla. 1992).
In the presence of means that (victim) saw, heard, or otherwise sensed that the act was
taking place.
Neither (victims) lack of chastity nor (victims) consent is a defense to the crime charged.
236
The defendants ignorance of (victims) age, (victims) misrepresentation of his or her age, or
the defendants bona fide belief of (victims) age is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD 800.04(7)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
800.02
11.8
None
Comment
This instruction was adopted in 2008.
237
a.
b.
c.
2.
The act was committed live over a [computer on-line service] [internet service]
[local bulletin board service].
3.
4.
Give 4a or 4b as applicable.
a.
(Defendant) was 18 years of age or older at the time of the offense.
b.
(Defendant) was less than 18 years of age at the time of the offense.
Definitions.
The words lewd and lascivious mean the same thing and mean a wicked, lustful,
unchaste, licentious, or sensual intent on the part of the person doing an act.
800.04(1)(a), Fla. Stat.
Sexual activity means the oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however, sexual
activity does not include an act done for a bona fide medical purpose.
847.001(13), Fla. Stat.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or
the condition of being fettered, bound, or otherwise physically restrained, for the purpose of
deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from
inflicting harm on another or receiving such harm oneself.
847.001(15), Fla. Stat.
Sexual bestiality means any sexual act, actual or simulated, between a person and an
animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
Neither (victims) lack of chastity nor (victims) consent is a defense to the crime charged.
238
The defendants ignorance of the (victims) age, (victims) misrepresentation of [his] [her]
age, or the defendants bona fide belief of (victims) age is not a defense to the crime charged.
The fact that an undercover operative or law enforcement officer was involved in the
detection and investigation of an offense is not a defense to the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE 847.0135(5)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
None
Comment
This instruction was adopted in 2008. For offenses occurring prior to October 1, 2008, refer to
section 800.04(7)(b), Florida Statutes (2007).
239
(Defendant) knew or reasonably should have known that the (victim) lacked the
capacity to consent or failed to give consent.
240
241
11.12 INCEST
826.04, Fla.Stat.
To prove the crime of Incest, the State must prove the following three elements beyond a
reasonable doubt:
1.
2.
(Defendant)
[married (victim)].
[had sexual intercourse with (victim)].
3.
[At the time of the marriage, (defendant) knew (victim) was [his] [her] (relationship
alleged)].
[At the time of the sexual intercourse, (defendant) knew (victim) was [his] [her]
(relationship alleged)].
Definition
"Sexual intercourse" is the penetration of the female sex organ by the male sex organ.
Emission of seed is not necessary.
Lesser Included Offenses
CATEGORY ONE
None
INCEST 826.04
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981.
242
11.13 VOYEURISM
810.14, Fla. Stat.
To prove the crime of Voyeurism, the State must prove the following three elements beyond
a reasonable doubt:
1.
2.
The (act alleged) was done with a [lewd] [lascivious] [indecent] intent.
3.
When (victim) was observed [he] [she] was in a [dwelling] [structure] [conveyance]
in which [he] [she] had a reasonable expectation of privacy.
The words lewd, lascivious, and indecent mean the same thing, a wicked, lustful, unchaste,
licentious, or sensual intent on the part of the person doing the act.
Definitions.
Dwelling means a building [or conveyance] of any kind, including any attached porch,
whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has
a roof over it and is designed to be occupied by people lodging therein at night, together with the
enclosed space of ground and outbuildings immediately surrounding it.
Structure means any kind of building, either temporary or permanent, that has a roof
over it, together with the enclosed space of ground and outbuildings immediately surrounding it.
Conveyance means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or
sleeping car.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2000 [765 So. 2d 692], and amended in 2008.
243
b.
2.
(Victim) was thereby [viewed] [broadcast] [or] [recorded] at a time when the (victim)
was [dressing] [undressing] [or] [privately exposing [his] [her] body].
3.
At the place and time when (victim) was [viewed] [broadcast] [or] [recorded] [he]
[she] had a reasonable expectation of privacy.
4.
The [viewing] [broadcast] [or] [recording] of (victim) was without the knowledge
and consent of (victim).
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Place and time when a person has a reasonable expectation of privacy means a place and
time when a reasonable person would believe that he or she could fully disrobe in privacy, without
being concerned that his or her undressing was being viewed, recorded, or broadcasted by another,
including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing
room, or tanning booth.
Privately exposing the body means exposing a sexual organ.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
244
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2008.
245
2.
(Defendants) use of the imaging device was for the purpose of viewing [the
body of] [or] [the undergarments worn by] (victim).
3.
(Defendants) use of the imaging device was without the knowledge and
consent of (victim).
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2008.
246
(b)
2.
(Victim) was thereby [viewed] [broadcast] [or] [recorded] at a time when the [he]
[she] was [dressing] [undressing] [or] [privately exposing [his] [her] body].
3.
At the place and time when (victim) was [viewed] [broadcast] [or] [recorded] [he]
[she] had a reasonable expectation of privacy.
4.
The [viewing] [broadcast] [or] [recording] of (victim) was without the knowledge
and consent of (victim).
5.
6.
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Place and time when a person has a reasonable expectation of privacy means a place and
time when a reasonable person would believe that he or she could fully disrobe in privacy, without
being concerned that their undressing was being viewed, recorded, or broadcasted by another,
including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing
room, or tanning booth.
247
248
2.
(Defendants) use of the imaging device was for the purpose of viewing [the body of]
[or] [the undergarments worn by] (victim).
3.
(Defendants) use of the imaging device was without the knowledge and consent of
(victim).
4.
5.
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2008.
249
b.
2.
(Victim) was thereby [viewed] [broadcast] [or] [recorded] at a time when the (victim)
was [dressing] [undressing] [or] [privately exposing [his] [her] body].
3.
At the place and time when (victim) was [viewed] [broadcast] [or] [recorded] [he]
[she] had a reasonable expectation of privacy.
4.
The [viewing] [broadcast] [or] [recording] of (victim) was without the knowledge
and consent of (victim).
5.
(Defendant) sold an image of (victim) created in this manner to another person for
consideration.
6.
(Defendant) knew or had reason to believe that the image of (victim) sold had been
created in this manner.
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Place and time when a person has a reasonable expectation of privacy means a place and
time when a reasonable person would believe that he or she could fully disrobe in privacy, without
being concerned that their undressing was being viewed, recorded, or broadcasted by another,
including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing
room, or tanning booth.
Privately exposing the body means exposing a sexual organ.
250
251
2.
(Defendants) use of the imaging device was for the purpose of viewing [the body of]
[or] [the undergarments worn by] (victim).
3.
(Defendants) use of the imaging device was without the knowledge and consent of
(victim).
4.
(Defendant) sold an image of (victim) created in this manner to another person for
consideration.
5.
(Defendant) knew or had reason to believe that the image of (victim) sold had been
created in this manner.
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction is based on section 810.145(2)(c), Florida Statutes (2004).
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2008.
252
b.
2.
(Victim) was thereby [viewed] [broadcast] [or] [recorded] at a time when the (victim)
was [dressing] [undressing] [or] [privately exposing [his] [her] body].
3.
At the place and time when (victim) was [viewed] [broadcast] [or] [recorded] [he]
[she] had a reasonable expectation of privacy.
4.
The [viewing] [broadcast] [or] [recording] of (victim) was without the knowledge
and consent of (victim).
5.
Definitions.
Broadcast means electronically transmitting a visual image with the intent that it be
viewed by another person.
Imaging device means any mechanical, digital, or electronic viewing device; still camera;
camcorder; motion picture camera; or any other instrument, equipment, or format capable of
recording, storing, or transmitting visual images of another person.
Place and time when a person has a reasonable expectation of privacy means a place and
time when a reasonable person would believe that he or she could fully disrobe in privacy, without
being concerned that their undressing was being viewed, recorded, or broadcasted by another,
including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing
room, or tanning booth.
Privately exposing the body means exposing a sexual organ.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
253
Comment
It is error to inform the jury of a prior conviction before a determination of guilt of the charged
offense. Therefore, do not read the allegation of prior conviction or send the information or indictment
into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous
conviction shall be determined beyond a reasonable doubt by the jury in a bifurcated proceeding. State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2008.
254
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status an
element as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2. (Defendant) [established] [maintained] a permanent, temporary, or transient
residence in (name of county) County, Florida.
Give 3a, 3b, 3c, or 3d as applicable.
3. (Defendant)
a.
b.
c.
d.
Read only if the defendant is charged with failing to provide a physical residential address.
The defendant shall provide a physical residential address.
Definitions. See instruction 11.14(h) for the applicable definitions.
255
256
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2.
Give 3a or 3b as applicable.
3. (Defendant)
a.
uses as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home]
[manufactured home];
and
knowingly failed to provide an office of the sheriff of (name of county)
County with [the (name the single unprovided registration item charged, as
worded in the statute)] [any one or more of the following items: (name the
unprovided registration items charged, as worded in the statute)] of the [motor
vehicle] [trailer] [mobile home] [manufactured home] where [he] [she]
resides.
b.
257
258
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2.
Give 3a or 3b as applicable.
3. (Defendant)
a.
b.
259
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
260
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2.
Give 3a or 3b as applicable.
3. (Defendant)
a.
b.
ii.
failed to report to that office that [he] [she] was a sexual offender.
failed to provide that office with [(name the single unprovided
registration item charged, as worded in the statute)] [any one or more of
the following items: (name the unprovided registration items charged, as
worded in the statute)].
261
262
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2.
iii.
b.
c.
263
d.
reported to
Give i or ii as applicable.
i.
an office of the sheriff of (name of county) County
ii.
and
Give iii or iv as applicable.
iii.
knowingly failed to provide that office with (name the single
unprovided registration item charged, as worded in the statute).
iv.
knowingly failed to provide that office with any one or more of the
following items: (name the unprovided registration items charged, as
worded in the statute).
264
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2. (Defendant) [established] [maintained] a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) intended to leave this State to establish residence in another state or
jurisdiction on (date).
Give element 4 or 5, or both, as applicable.
4. (Defendant) knowingly failed to report in person to an office of the sheriff in the
county of [his] [her] current residence within 48 hours before the date on which [he]
[she] intended to leave this state to establish residence in another state or
jurisdiction.
5. (Defendant) knowingly failed to provide the address, municipality, county, and state
of [his] [her] intended address, when [he] [she] reported to the sheriffs office of the
county of [his] [her] current residence [his] [her] intention to establish residence in
another state or jurisdiction.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
265
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2. (Defendant) [established] [maintained] a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) indicated to an office of the sheriff of (name of county) County [his] [her]
intent to leave this state on (date of intended departure) and establish a permanent,
temporary, or transient residence in another state or jurisdiction.
4. (Defendant) later decided to remain in this state.
5. Within 48 hours after the date of [his] [her] originally intended departure from this
state, (defendant) knowingly failed to report to an office of the sheriff of (name of
county) County that [he] [she] instead decided to remain in this state.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and revised in 2012.
266
is a sexual offender.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
offender; therefore, you should consider the sexual offender status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual offender or convicted.
2. (Defendant) [established] [maintained] a permanent, temporary, or transient
residence in (name of county) County, Florida.
Give 3a, 3b, 3c, 3d, or 3e as applicable.
3. (Defendant)
a.
b.
c.
d.
e.
267
Give i or ii as applicable.
i.
knowingly failed to provide that office with (name the single
unprovided registration item charged, as worded in the statute).
ii.
knowingly failed to provide that office with any one or more of the
following items: (name the unprovided registration items charged, as
worded in the statute).
Read only if the defendant is charged with failing to provide a physical residential
address.
The defendant shall provide a physical residential address.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
268
269
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2.
3.
270
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) was not in the custody or control of or under the supervision of the
Department of Corrections and was not in the custody of a private correctional
facility.
Give 4a or 4b or 4a and 4b, as appropriate.
4(a). (Defendant) knowingly failed to register in person with an office of the sheriff
in the county where [he] [she] [established] [maintained] residence within 48
hours after [he] [she] established permanent, temporary, or transient
residence in this state.
4(b).
271
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) knowingly failed to provide an office of the sheriff of (name of county)
County with [his] [her] [(name the single unprovided registration item charged, as
worded in the statute)] [any one or more of the following items: [his] [her] (name the
unprovided registration items charged, as worded in the statute)].
Read only if the defendant is charged with failing to provide a physical residential address.
The defendant shall provide a physical residential address.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
272
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2.
Give 3a or 3b as applicable.
3. (Defendant)
a.
b.
273
274
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the Court should not give the definition of
sexual predator or convicted.
2.
b.
c.
275
276
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2.
Give 3a or 3b as applicable.
3. (Defendant)
a.
b.
277
i.
failed to report to that office that [he] [she] was a sexual predator.
ii.
278
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) knowingly failed to provide an office of the sheriff of (name of county)
County with [his] [her] [(name the single unprovided registration item charged, as
worded in the statute)] [any one or more of the following items: [his] [her] (name the
unprovided registration items charged, as worded in the statute)].
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and revised in 2012.
279
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2.
b.
c.
d.
reported to
Give i or ii as applicable.
i.
an office of the sheriff of (name of county)
280
ii.
and
Give iii or iv as applicable.
iii.
knowingly failed to provide that office with (name the single
unprovided registration item charged, as worded in the statute).
iv.
knowingly failed to provide that office with any one or more of the
following items: (name the unprovided registration items charged, as
worded in the statute).
281
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) knowingly failed to respond to address verification correspondence from
the Florida Department of Law Enforcement within three weeks from the date of
the correspondence.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
282
is a sexual predator.
b.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a.
b.
(Defendant)
reported to an office of the sheriff of the county of [his] [her] current
residence [his] [her] intention to establish residence in another state or
jurisdiction;
and
knowingly failed to provide [[his] [her] (name the single unprovided
registration item charged, as worded in the statute)] [any one or more of the
following items: [his] [her] (name the unprovided registration items charged, as
worded in the statute).]
Read only if the defendant is charged with failing to provide a physical residential address.
The defendant shall provide a physical residential address.
283
284
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of
sexual predator or convicted.
2. (Defendant) established or maintained a permanent, temporary, or transient
residence in (name of county) County, Florida.
3. (Defendant) indicated to an office of the sheriff of (name of county) County [his] [her]
intent to leave this state on (date of intended departure) and establish a permanent,
temporary, or transient residence in another state or jurisdiction.
4. (Defendant) later decided to remain in this state.
5. Within 48 hours after the date of [his] [her] originally intended departure from this
state, (defendant) knowingly failed to report to an office of the sheriff of (name of
county) County that [he] [she] instead decided to remain in this state.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
285
is a sexual predator.
b.
has agreed or stipulated that [he] [she] has been convicted as a sexual
predator; therefore, you should consider the sexual predator status element
as proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after conducting an on-therecord colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842
So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of
sexual predator or convicted.
2. (Defendant) [established] [maintained] a permanent, temporary, or transient
residence in (name of county) County, Florida.
Give 3a, 3b, or 3c as applicable.
3. (Defendant)
a.
b.
c.
Read only if the defendant is charged with failing to provide a physical residential address.
The defendant shall provide a physical residential address.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
286
Comment
This instruction was adopted in 2008 [983 So.2d 531] and revised in 2012.
287
288
(Defendant) was 18 years of age or older at the time of the commission of the offense.
and
Give as applicable.
2.
(Defendant)
a.
b.
c.
victimized more than one person during the course of the criminal episode
applicable to the offense.
Definition.
Serious personal injury means great bodily harm or pain, permanent disability, or
permanent disfigurement.
Comment
This instruction was adopted in 2008.
289
(Defendant) was 18 years of age or older at the time of the commission of the offense
and
Give as applicable.
2.
(Defendant)
a.
committed the offense while under the jurisdiction of a court for a felony
offense under the laws of this state, for an offense that is a felony in another
jurisdiction, or for an offense that would be a felony if that offense were
committed in this state.
b.
290
2.
3.
(Defendant) misrepresented [his] [her] age to the [(victim)] [law enforcement officer
representing [himself] [herself] to be a person under 18 years of age].
The mere fact that an undercover operative or law enforcement officer was involved in the
detection and investigation of this offense shall not constitute a defense from prosecution.
Definitions.
A child means any person, whose identity is known or unknown, less than 18 years of age.
Give the following definitions if applicable.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed. A mothers breastfeeding of her baby does not under any circumstance constitute
sexual conduct.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or the
condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting
harm upon another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ
of another or the anal or vaginal penetration of another by any other object; however, sexual
battery does not include an act done for a bona fide medical purpose.
291
Deviate sexual intercourse means sexual conduct between persons not married to each other
consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the
vulva.
Sexual bestiality means any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2009.
292
2.
3.
(Defendant) misrepresented [his] [her] age to the [(victim)] [law enforcement officer
representing [himself] [herself] to be a person under 18 years of age].
The mere fact that an undercover operative or law enforcement officer was involved in the
detection and investigation of this offense shall not constitute a defense from prosecution.
Definitions.
A child means any person, whose identity is known or unknown, less than 18 years of age.
Give the following definitions if applicable.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed. A mothers breastfeeding of her baby does not under any circumstance constitute
sexual conduct.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or the
condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting
harm upon another or receiving such harm oneself.
293
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ
of another or the anal or vaginal penetration of another by any other object; however, sexual
battery does not include an act done for a bona fide medical purpose.
Deviate sexual intercourse means sexual conduct between persons not married to each other
consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the
vulva.
Sexual bestiality means any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2009.
294
(Defendant) knowingly [traveled] [attempted to travel] [within this state] [to this
state] [from this state].
2.
(Defendant) did so for the purpose of engaging in any illegal act described in [(insert
violation of chapter 794, 800, or 827 as alleged in the charging instrument)] [other
unlawful sexual conduct] with (victim) after using [a computer on-line service]
[Internet service] [local bulletin board service] [any other device capable of
electronic data storage or transmission] to contact a child.
3.
4.
The mere fact that an undercover operative or law enforcement officer was involved in the
detection and investigation of this offense shall not constitute a defense from prosecution.
Definitions.
A child means any person, whose identity is known or unknown, less than 18 years of age.
Give the following definitions if applicable.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed. A mothers breastfeeding of her baby does not under any circumstance constitute
sexual conduct.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or the
condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting
harm upon another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ
of another or the anal or vaginal penetration of another by any other object; however, sexual
battery does not include an act done for a bona fide medical purpose.
Deviate sexual intercourse means sexual conduct between persons not married to each other
consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the
vulva.
295
Sexual bestiality means any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2009.
296
(Defendant) knowingly traveled [attempted to travel] [within this state] [to this state]
[from this state].
2.
(Defendant) did so for the purpose of engaging in any illegal act described in [(insert
violation of chapter 794, 800, or 827 as alleged in the charging instrument)] [other
unlawful sexual conduct] with (victim) after using [a computer on-line service]
[Internet service] [local bulletin board service] [any other device capable of
electronic data storage or transmission] to contact a child.
3.
4.
The mere fact that an undercover operative or law enforcement officer was involved in the
detection and investigation of this offense shall not constitute a defense from prosecution.
Definitions.
A child means any person, whose identity is known or unknown, less than 18 years of age.
Give the following definitions if applicable.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed. A mothers breastfeeding of her baby does not under any circumstance constitute
sexual conduct.
Sadomasochistic abuse means flagellation or torture by or upon a person or animal, or the
condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting
harm upon another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ
of another or the anal or vaginal penetration of another by any other object; however, sexual
battery does not include an act done for a bona fide medical purpose.
297
Deviate sexual intercourse means sexual conduct between persons not married to each other
consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the
vulva.
Sexual bestiality means any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2009.
298
299
Give 2a or 2b.
2. a. The damage was done willfully and unlawfully.
b. The damage was caused while defendant was engaged in the commission of (felony
alleged).
3.
300
ARSON 806.01(1)
CATEGORY TWO
Attempt
Criminal mischief
FLA. STAT.
806.01(2)
777.04(1)
806.13
Comment
This instruction was adopted in 1981 and was amended in 1992.
301
INS. NO.
12.2
5.1
12.4
Give 2a or 2b.
2. a. The damage was done willfully and unlawfully.
b. The damage was caused while defendant was engaged in the commission of (felony
alleged).
3.
302
(Defendant)
[manufactured]
[possessed]
[gave to (person alleged)]
[loaned to (person alleged)]
[offered for sale to (person alleged)]
[sold to (person alleged)]
[transferred to (person alleged)]
[transported]
[disposed of]
[offered to (person alleged)]
a fire bomb.
2.
At the time, (defendant) intended that the fire bomb would be willfully and
unlawfully used to damage by [fire] [explosion] any structure or property.
Definitions
806.111(2)(b), Fla.Stat.
A "fire bomb" is a container containing flammable liquid, or combustible liquid, or any
incendiary chemical mixture or compound, having a wick or similar device capable of being ignited
or other means capable of causing ignition; but no device commercially manufactured primarily for
the purpose of illumination, heating, or cooking shall be deemed to be such a fire bomb.
806.01(3), Fla.Stat.
"Structure" means:
Any building of any kind.
Any enclosed area with a roof over it.
Any real property and its appurtenances.
Any tent or other portable building.
Any vehicle.
Any vessel.
Any watercraft.
Any aircraft.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
303
INS. NO.
5.1
Comment
This instruction was adopted in 1981 and amended in 1989.
304
2.
3.
Give if applicable.
Among the means by which property can be injured or damaged under the law is the
placement of graffiti on it or other acts of vandalism to it.
Definitions.
Willfully means intentionally, knowingly, and purposely.
Maliciously means wrongfully, intentionally, without legal justification or excuse, and
with the knowledge that injury or damage will or may be caused to another person or the property
of another person.
Degrees. Give as applicable.
If you find the defendant guilty of criminal mischief, you must determine whether the State
proved beyond a reasonable doubt that:
a. [the damage to the property was $1,000 or greater.]
[by reason of the damage, there was an interruption or impairment of a business
operation or public communication, transportation, supply of water, gas or power,
or other public service which cost $1,000 or more in labor and supplies to restore.]
b. [the damage to the property was greater than $200 but less than $1,000.]
c. [the damage to the property was $200 or less.]
d. [the property damaged was a church, synagogue,
mosque, or other place of worship or any religious article
contained therein].
e. [the defendant has previously been convicted of criminal
mischief].
806.13(5) (a), Fla. Stat.
The amounts of value of damage to property owned by separate persons, if the property was
damaged during one scheme or course of conduct, may be aggregated in determining the total
value.
305
777.04(1)
INS. NO.
5.1
CATEGORY ONE
Criminal mischief
INS. NO.
12.4
5.1
CATEGORY ONE
Criminal mischief
Criminal mischief
INS. NO.
12.4
12.4
5.1
Comment
It is error to inform the jury of a prior criminal mischief conviction. Therefore, if the information
or indictment contains an allegation of one or more prior criminal mischief convictions, do not read the
allegation and do not send the information or indictment into the jury room. If the defendant is found
guilty of criminal mischief, the historical fact of a previous criminal mischief conviction shall be
determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691
(Fla. 2000).
This instruction was adopted in 1981 and amended in 1992 and 2010.
306
(Defendant)
[set fire to]
[burned]
[attempted to set fire to]
[attempted to burn]
[caused to be burned]
[aided, counseled, or procured the burning of]
(building, structure, or personal property alleged).
2.
3.
4.
Definition
"Willfully" means intentionally, knowingly, and purposely.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
Comment
307
INS. NO.
5.1
2.
3.
4.
5.
Enhanced Penalty.
If you find the defendant guilty of the crime of Offense Against Computer Users you must
then determine, beyond a reasonable doubt, whether the offense endangered human life.
Give if applicable.
This offense does not apply to any person who accesses [his] [her] employers computer
system, computer network, computer program, or computer data when acting within the scope of
[his] [her] lawful employment.
Definitions.
Access means to approach, instruct, communicate with, store data in, retrieve data from,
or otherwise make use of any resources of a computer, computer system, or computer network.
Computer means an internally programmed, automatic device that performs data
processing.
Computer contaminant means any set of computer instructions designed to modify,
damage, destroy, record, or transmit information within a computer, computer system, or
computer network without the intent or permission of the owner of the information. The term
includes, but is not limited to, a group of computer instructions commonly called viruses or worms
308
which are self-replicating or self-propagating and which are designed to contaminate other
computer programs or computer data; consume computer resources; modify, destroy, record, or
transmit data; or in some other fashion usurp the normal operation of the computer, computer
system, or computer network.
Computer network means any system that provides communications between one or
more computer systems and its input or output devices, including, but not limited to, display
terminals and printers that are connected by telecommunication facilities.
Computer program or computer software means a set of instructions or statements and
related data which, when executed in actual or modified form, cause a computer, computer system,
or computer network to perform specified functions.
Computer services include, but are not limited to, computer time; data processing or
storage functions; or other uses of a computer, computer system, or computer network.
Computer system means a device or collection of devices, including support devices, one
or more of which contain computer programs, electronic instructions, or input data and output
data, and which perform functions, including, but not limited to, logic, arithmetic, data storage,
retrieval, communication, or control. The term does not include calculators that are not
programmable and that are not capable of being used in conjunction with external files.
Data means a representation of information, knowledge, facts, concepts, computer
software, computer programs, or instructions. Data may be in any form, in storage media or stored
in the memory of the computer, or in transit or presented on a display device.
Knowingly means with full knowledge and intentionally.
Willfully means intentionally and purposely.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2010.
309
2.
a.
b.
c.
d.
e.
(Defendant)
Give a, b, or c as applicable.
a.
b.
c.
Give if applicable.
This offense does not apply to any person who accesses [his] [her] employers computer
system, computer network, computer program, or computer data when acting within the scope of
[his] [her] lawful employment.
310
Definitions.
Access means to approach, instruct, communicate with, store data in, retrieve data from,
or otherwise make use of any resources of a computer, computer system, or computer network.
Computer means an internally programmed, automatic device that performs data
processing.
Computer contaminant means any set of computer instructions designed to modify,
damage, destroy, record, or transmit information within a computer, computer system, or
computer network without the intent or permission of the owner of the information. The term
includes, but is not limited to, a group of computer instructions commonly called viruses or worms
which are self-replicating or self-propagating and which are designed to contaminate other
computer programs or computer data; consume computer resources; modify, destroy, record, or
transmit data; or in some other fashion usurp the normal operation of the computer, computer
system, or computer network.
Computer network means any system that provides communications between one or
more computer systems and its input or output devices, including, but not limited to, display
terminals and printers that are connected by telecommunication facilities.
Computer program or computer software means a set of instructions or statements and
related data which, when executed in actual or modified form, cause a computer, computer system,
or computer network to perform specified functions.
Computer services include, but are not limited to, computer time; data processing or
storage functions; or other uses of a computer, computer system, or computer network.
Computer system means a device or collection of devices, including support devices, one
or more of which contain computer programs, electronic instructions, or input data and output
data, and which perform functions, including, but not limited to, logic, arithmetic, data storage,
retrieval, communication, or control. The term does not include calculators that are not
programmable and that are not capable of being used in conjunction with external files.
Data means a representation of information, knowledge, facts, concepts, computer
software, computer programs, or instructions. Data may be in any form, in storage media or stored
in the memory of the computer, or in transit or presented on a display device.
Knowingly means with full knowledge and intentionally.
Property means anything of value as defined in s. 815.03(11) and includes, but is not
limited to, financial instruments, information, including electronically produced data and
computer software and programs in either machine-readable or human-readable form, and any
other tangible or intangible item of value.
Willfully means intentionally and purposely.
311
312
To prove the crime of Offense Against Computer Users, the State must prove the following
element beyond a reasonable doubt:
(Defendant) willfully, knowingly, and without authorization modified equipment or supplies
[used] [intended to be used] in a [computer] [computer system] [computer network].
Give if applicable.
This offense does not apply to any person who accesses [his] [her] employers
[computer system] [computer network] [computer program] [computer data] when acting within
the scope of [his] [her] lawful employment.
Definitions.
Access means to approach, instruct, communicate with, store data in, retrieve data from,
or otherwise make use of any resources of a computer, computer system, or computer network.
Computer means an internally programmed, automatic device that performs data
processing.
Computer contaminant means any set of computer instructions designed to modify,
damage, destroy, record, or transmit information within a computer, computer system, or
computer network without the intent or permission of the owner of the information. The term
includes, but is not limited to, a group of computer instructions commonly called viruses or worms
which are self-replicating or self-propagating and which are designed to contaminate other
computer programs or computer data; consume computer resources; modify, destroy, record, or
transmit data; or in some other fashion usurp the normal operation of the computer, computer
system, or computer network.
Computer network means any system that provides communications between one or
more computer systems and its input or output devices, including, but not limited to, display
terminals and printers that are connected by telecommunication facilities.
Computer program or computer software means a set of instructions or statements and
related data which, when executed in actual or modified form, cause a computer, computer system,
or computer network to perform specified functions.
Computer services include, but are not limited to, computer time; data processing or
storage functions; or other uses of a computer, computer system, or computer network.
Computer system means a device or collection of devices, including support devices, one
or more of which contain computer programs, electronic instructions, or input data and output
data, and which perform functions, including, but not limited to, logic, arithmetic, data storage,
retrieval, communication, or control. The term does not include calculators that are not
programmable and that are not capable of being used in conjunction with external files.
313
314
315
13.1 BURGLARY
810.02, Fla. Stat.
Give if the information charges entering with the intent to commit an offense:
To prove the crime of Burglary, the State must prove the following [two] [three] elements
beyond a reasonable doubt:
1.
2.
At the time of entering the [structure] [conveyance], (defendant) had the intent to
commit [an offense] [(the crime alleged)] in that [structure] [conveyance].
[(Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The
premises were not open to the public at the time of the entering.]
Give if applicable.
If the [license] [invitation] to enter was obtained by (defendants) trick or fraud or deceit,
then the [license] [invitation] to enter was not valid.
Give if applicable.
If (defendant) entered premises that were open to the public, but then entered an area of the
premises that [he] [she] knew was not open to the public, (defendant) committed a burglary if [he]
[she] entered that non-public area with the intent to commit [an offense] [(the crime alleged)] in that
non-public area.
Give if applicable. 810.07 Fla. Stat.
You may infer that (defendant) had the intent to commit a crime inside a [structure]
[conveyance] if the [entering] [attempted entering] of the [structure] [conveyance] was done
stealthily and without the consent of the owner or occupant.
Give if applicable.
The entry necessary need not be the whole body of the defendant. It is sufficient if the
defendant, with the intent to commit a crime, extends any part of [his] [her] body into the
[structure] [conveyance].
Give if the information charges remaining with the intent to commit an offense:
To prove the crime of Burglary, the State must prove the following two elements beyond a
reasonable doubt:
1.
2.
316
after permission to remain had been withdrawn and with the intent to
commit [an offense] [(the crime alleged)] inside the [structure] [conveyance].
c.
The offense intended cannot be trespass or burglary. Forcible felonies are listed in 776.08 Fla.
Stat.
Proof of intent.
The intent with which an act is done is an operation of the mind and, therefore, is not
always capable of direct and positive proof. It may be established by circumstantial evidence like
any other fact in a case.
Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if
the evidence does not establish that it was done with the intent to commit [an offense] [(the crime
alleged)], the defendant must be found not guilty of burglary.
Proof of possession of stolen property.
Proof of possession by an accused of property recently stolen by means of a burglary, unless
satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary
and of the possession of the stolen property convince you beyond a reasonable doubt that the
defendant committed the burglary.
Definitions; give as applicable.
810.011(1), Fla. Stat.
Structure means any building of any kind, either temporary or permanent, that has a
roof over it, and the enclosed space of ground and outbuildings immediately surrounding that
structure.
810.011(3), Fla. Stat.
Conveyance means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or
sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
With an assault.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) assaulted
any person. An assault is an intentional and unlawful threat, either by word or act, to do violence
to another, at a time when the defendant appeared to have the ability to carry out the threat and
[his] [her] act created a well-founded fear in the other person that the violence was about to take
place.
With a battery.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) battered
any person. A battery is an actual and intentional touching or striking of another person against
that persons will or the intentional causing of bodily harm to another person.
317
While armed.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) was
armed or armed [himself] [herself] within the [structure] [conveyance] with [explosives] [a
dangerous weapon].
Definitions. Give as applicable. 790.001(5), Fla. Stat. See exceptions in 790.001(5)(a)-(d),
Fla. Stat.
Explosive means any chemical compound or mixture that has the property of yielding
readily to combustion or oxidation upon application of heat, flame, or shock, including but not
limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other
ingredients to form an explosive mixture, blasting caps, and detonators.
A dangerous weapon is any weapon that, taking into account the manner in which it is
used, is likely to produce death or great bodily harm. It is not necessary for the State to prove that
the defendant intended to use or was willing to use the weapon in furtherance of the burglary in
order for a weapon to constitute a dangerous weapon.
To arm oneself during the course of a burglary includes possessing a firearm, whether
loaded with ammunition or not, at any time during the course of committing the burglary.
Structure or conveyance is a dwelling.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether the [structure] [conveyance] [entered] [remained in] was a
dwelling.
Definition. Give as applicable.
Dwelling means a building [or conveyance] of any kind, whether such building [or
conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is
designed to be occupied by people lodging therein at night, together with the enclosed space of
ground and outbuildings immediately surrounding it. For purposes of burglary, a dwelling
includes an attached porch or attached garage.
Human being in structure or conveyance.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether, in the course of committing the burglary, there was another
human being in the [structure] [conveyance], at the time [he] [she] [entered] [remained in] the
[structure] [conveyance].
Dwelling or structure with use of motor vehicle or damage.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a
[dwelling] [structure] and
1.
or
2.
318
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether the conveyance [entered] [remained in] was an authorized
emergency vehicle.
Definition. See 316.003, Fla. Stat.
An authorized emergency vehicle is [a vehicle of the fire department (fire patrol) or
police] [an ambulance or emergency vehicle of [municipal departments] [public service
corporations operated by private corporations] [the Department of Environmental Protection,
Health, or Transportation] [Department of Corrections]] that is designated or authorized by the
respective department, chief of police of an incorporated city, or sheriff of a county.
State of emergency.
The definitions of structure, dwelling, and conveyance are different for counties where a state of
emergency has been declared under chapter 252. See 810.011(1), (2), and (3), Fla. Stat.
If you find (defendant) guilty of burglary, you must also determine if the State has proved
beyond a reasonable doubt whether
1.
the burglary was committed within a county that was subject to a state of
emergency that had been declared by the governor under chapter 252, the State
Emergency Management Act,
and
2.
the perpetration of the burglary was facilitated by conditions arising from the
emergency.
Definition.
The term conditions arising from the emergency means civil
unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence
of or response time for first responders or homeland security personnel.
810.011(4), Fla. Stat.
An act is committed in the course of committing if it occurs in the attempt to commit the
offense or in flight after the attempt or commission.
Lesser Included Offenses
BURGLARY WITH ASSAULT OR BATTERY OR WHILE ARMED OR WITH USE OF MOTOR
VEHICLE OR PROPERTY DAMAGE 810.02(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
810.02(4)
13.1
Aggravated battery
784.045
8.4
Battery
784.03
8.3
Aggravated assault
784.021
8.2
Assault
784.011
8.1
Attempt
777.04(1)
5.1
Burglary
319
Burglary
810.02(3)
13.1
Trespass
810.08(2)(a)
13.3
Trespass
810.08(2)(b)
13.3
Trespass
810.08 (2)(c)
13.3
Criminal Mischief
806.13
12.4
CATEGORY TWO
FLA. STAT.
INS. NO.
810.02(4)
13.1
Attempt
777.04(1)
5.1
Trespass
810.08(2)(a)
13.3
Trespass
810.08(2)(b)
13.3
Trespass
810.08(2)(c)
13.3
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Trespass
810.08(2)(a)
13.3
Trespass
810.08(2)(b)
13.3
Trespass
810.08 (2)(c)
13.3
Criminal Mischief
806.13
12.4
Burglary
BURGLARY 810.02(4)
CATEGORY ONE
None
Comment
When the compounded offense of burglary with an assault or burglary with a battery is
charged and the jury convicts on the lesser included offense of trespass, the jury can also consider
a second conviction on the lesser included offenses of assault or battery depending on the crime
charged. See Gian-Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA 2005).
This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1997 [697
So.2d 84], 2003 [850 So.2d 1272], and 2008. It should be given for offenses committed after July
1, 2001. See 810.02, Fla. Stat. (2002). For guidance on instructions for burglary offenses
committed between February 2000 and before July 1, 2001, see State v. Ruiz, 863 So.2d 1205
(Fla. 2003), and Burnes v. State, 861 So.2d 78 (Fla. 2003).
320
2.
(Defendant) had in [his] [her] possession a [tool] [machine] [implement] that [he]
[she] intended to use, or allow to be used, in the commission of the burglary or
trespass.
3.
(Defendant) did some overt act toward the commission of a burglary or trespass.
Lesser Included Offenses
321
3.
1.
2.
3.
(person
b.
322
INS. NO.
5.1
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985] and 2012.
323
1.
Authority to enter upon or remain in property need not be given in express words. It may
be implied from the circumstances. It is lawful to enter upon or remain in the property of another
if, under all the circumstances, a reasonable person would believe that [he] [she] had the permission
of the owner or occupant.
Definitions.
810.011(1) Fla. Stat. and State v. Hamilton, 660 So. 2d 1038 (Fla. 1995).
Structure means a building of any kind, either temporary or permanent, which has a roof
over it, and the enclosed space of ground and outbuildings immediately surrounding it.
810.011(3) Fla. Stat.
Conveyance means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft,
or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
810.09(3) Fla. Stat.
Person authorized means any owner, his or her agent, or a community association
authorized as an agent for the owner, or any law enforcement officer whose department has
received written authorization from the owner, his or her agent, or a community association
authorized as an agent for the owner, to communicate an order to leave the property in the case of a
threat to public safety or welfare.
810.09(1)(b) Fla. Stat.
324
Unenclosed curtilage of a dwelling means the unenclosed land or grounds, and any
outbuildings, that are directly and intimately adjacent to and connected with the dwelling and
necessary, convenient, and habitually used in connection with that dwelling.
810.011(2) Fla. Stat.
Dwelling means a building or conveyance of any kind, including any attached porch,
whether such building or conveyance is temporary or permanent, mobile or immobile, which has a
roof over it and is designed to be occupied by people lodging therein at night.
"Willfully" means intentionally, knowingly, and purposely.
810.011(5)(a)1. and (b), Fla._Stat. Give if applicable.
Notice not to enter upon property may be given by posting signs not more than 500 feet
apart along and at each corner of the property's boundaries. The signs must prominently state, in
letters not less than two inches high, the words "No Trespassing." The signs also must state, with
smaller letters being acceptable, the name of the owner or lessee or occupant of the land. The signs
must be placed so as to be clearly noticeable from outside the boundary lines and corners of the
property. [If the property is less than five acres in area, and a dwelling house is located on it, it
should be treated as posted land even though no signs have been erected.]
810.011(6), Fla._Stat. Give if applicable.
Notice not to enter property may be given by cultivation of the property. "Cultivated land"
is land that has been cleared of its natural vegetation, and at the time of the trespass was planted
with trees, a crop, an orchard or a grove, or was a pasture. [Fallow land, left that way as part of a
crop rotation, is also "cultivated land."]
810.011(7), Fla._Stat. Give if applicable.
Notice not to enter property may be given by fencing the property. "Fenced land" is land
that has been enclosed by a fence of substantial construction. The fence may be made from rails,
logs, posts and railings, iron, steel, barbed wire or other wire or material. The fence must stand at
least three feet high. [If a part of the boundary of a piece of property is formed by water, that part
should be treated as legally fenced land.]
Give if applicable.
When every part of property is either posted or cultivated or fenced, the entire property is
considered as enclosed and posted land.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of trespass on property other than a structure or
conveyance, you must then determine whether the State proved beyond a reasonable doubt that the
defendant was armed with a firearm or other dangerous weapon during the trespass.
790.001(6), Fla._Stat. Give if applicable.
A "firearm" is any weapon [including a starter gun] which will, is designed to, or may
readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any
such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun.
[The term firearm does not include an antique firearm unless the antique firearm is used in the
commission of a crime.]
See 790.001(1), Fla. Stat. for the definition of antique firearmand
790.001(4), Fla. Stat. for the definition of destructive device.
325
A "dangerous weapon" is any weapon that, taking into account the manner in which it is
used, is likely to produce death or great bodily harm.
Lesser Included Offenses
TRESPASS ON PROPERTY OTHER THAN STRUCTURE OR CONVEYANCE
810.09(1)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981 and amended in 1985 and 2012.
326
2.
b.
c.
327
1.
2.
3.
328
INS. NO.
5.1
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985] and 2012.
329
2.
Authority to enter upon or remain in property need not be given in express words. It may
be implied from the circumstances. It is lawful to enter upon or remain in the property of another
if, under all the circumstances, a reasonable person would believe that [he] [she] had the permission
of the owner or occupant.
Definitions.
810.011(1) Fla. Stat. and State v. Hamilton, 660 So. 2d 1038 (Fla. 1995).
Structure means a building of any kind, either temporary or permanent, which has a roof
over it, and the enclosed space of ground and outbuildings immediately surrounding it.
810.011(3) Fla. Stat.
Conveyance means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft,
or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
810.09(3) Fla. Stat.
Person authorized means any owner, his or her agent, or a community association
authorized as an agent for the owner, or any law enforcement officer whose department has
received written authorization from the owner, his or her agent, or a community association
authorized as an agent for the owner, to communicate an order to leave the property in the case of a
threat to public safety or welfare.
330
331
A "dangerous weapon" is any weapon that, taking into account the manner in which it is
used, is likely to produce death or great bodily harm.
Lesser Included Offenses
TRESPASS ON PROPERTY OTHER THAN STRUCTURE OR CONVEYANCE
810.09(1)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981 and amended in 1985 and 2012.
332
333
Give 2a or 2b as applicable.
2.
a.
(Defendant) did not have any legitimate business on the campus or any other
authorization, license, or invitation to enter or remain upon school property.
b.
Definition.
School means the grounds or any facility of any kindergarten, elementary school, middle
school, junior high school, or secondary school, whether public or non-public.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007.
334
2.
The principal or [his] [her] designee [told or directed the defendant to leave the
campus or facility] [told the defendant not to enter the campus or facility] of (school
name).
Definition.
School means the grounds or any facility of any kindergarten, elementary school, middle
school, junior high school, or secondary school, whether public or non-public.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007.
335
336
337
338
339
340
14.1 THEFT
812.014, Fla. Stat.
To prove the crime of Theft, the State must prove the following two elements beyond a
reasonable doubt:
1.
2.
[deprive (victim) of [his][her] right to the property or any benefit from it.]
b.
b.
[the value of the property taken was $20,000 or more but less than $100,000.]
c.
[the value of the property taken was $10,000 or more but less than $20,000.]
d.
[the value of the property taken was $5,000 or more but less than $10,000.]
e.
[the value of the property taken was $300 or more but less than $5,000.]
f.
[the value of the property taken was $100 or more but less than $300.]
g.
h.
[the property taken was a semitrailer that was deployed by a law enforcement
officer.]
i.
[the property taken was cargo valued at $50,000 or more that has entered the stream
of commerce from the shippers loading platform to the consignee's receiving dock.]
j.
[the property taken was cargo valued at less than $50,000 that has entered the
stream of commerce from the shipper's loading platform to the consignee's receiving
dock.]
k.
[the property taken was emergency medical equipment valued at $300 or more that
was taken from [a licensed facility][an emergency medical aircraft or vehicle].]
l.
[the property taken was law enforcement equipment valued at $300 or more that
was taken from an authorized emergency vehicle.]
341
m.
n.
o.
[the value of the property taken was $100 or more but less than $300, and was taken
from [a dwelling] [the unenclosed curtilage of a dwelling].]
Give if applicable but only in cases of grand theft. 812.014(2)(a)3, Fla. Stat.
If you find the defendant guilty of theft, you must also determine if the State has proved
beyond a reasonable doubt whether:
p.
[in the course of committing the theft, (defendant) used a motor vehicle as an
instrumentality, other than merely as a getaway vehicle, to assist in committing the
theft and thereby damaged the real property of another.]
q.
[in the course of committing the theft, (defendant) caused more than $1,000 in
damage to the [real][personal] property
of another.]
[the theft was committed within a county that was subject to a state of emergency
that had been declared by the governor under Chapter 252, the State Emergency
Management Act
and
the perpetration of the theft was facilitated by conditions arising from the
emergency.]
342
Proof of the purchase or sale of stolen property at a price substantially below the fair
market value, unless satisfactorily explained, gives rise to an inference that the person buying or
selling the property knew or should have known that the property had been stolen.
812.022(4), Fla. Stat.
Proof of the purchase or sale of stolen property by a dealer in property, out of the regular
course of business or without the usual indicia of ownership other than mere possession, unless
satisfactorily explained, gives rise to an inference that the person buying or selling the property
knew or should have known that it had been stolen.
812.022(5), Fla. Stat.
Proof that a dealer who regularly deals in used property possesses stolen property upon
which a name and phone number of a person other than the offeror of the property are
conspicuously displayed gives rise to an inference that the dealer possessing the property knew or
should have known that the property was stolen.
812.022(6), Fla. Stat.
Proof that a person was in possession of a stolen motor vehicle and that the ignition
mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had
been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person
in possession of the stolen motor vehicle knew or should have known that the motor vehicle had
been stolen.
Definitions. Give if applicable.
316.003, Fla. Stat.
Authorized emergency vehicles are vehicles of the fire department (fire patrol), police
vehicles, and such ambulances and emergency vehicles of municipal departments, public service
corporations operated by private corporations, the Department of Environmental Protection, the
Department of Health, the Department of Transportation, and the Department of Corrections as
are designated or authorized by their respective department or the chief of police of an
incorporated city or any sheriff of any of the various counties.
812.012(1), Fla. Stat.
Cargo means partial or entire shipments, containers, or cartons of property which are
contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight
consolidation facility, or air navigation facility.
812.014(2), Fla. Stat.
Conditions arising from the emergency means civil unrest, power outages, curfews,
voluntary or mandatory evacuations, or a reduction in the presence of or response time for first
responders or homeland security personnel.
810.011(2), Fla. Stat.
Dwelling means a building [or conveyance] of any kind, whether such building [or
conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is
designed to be occupied by people lodging therein at night, together with the enclosed space of
ground and outbuildings immediately surrounding it. For purposes of theft, a dwelling includes
an attached porch or attached garage.
812.014(2)(b)3, Fla. Stat.
343
Emergency medical aircraft or vehicle means any aircraft, ambulance or other vehicle
used as an emergency medical service vehicle that has been issued a permit in accordance with
Florida law.
812.014(2)(b)3, Fla. Stat.
Emergency medical equipment means mechanical or electronic apparatus used to provide
emergency service and care or to treat medical emergencies.
395.002(10), Fla. Stat.
Emergency service and care means medical screening, examination, and evaluation by a
physician, or other medically appropriate personnel under the supervision of a physician, to
determine if an emergency medical condition exists, and if it does, the care, treatment, or surgery
by a physician necessary to relieve or eliminate the emergency medical condition, within the service
capability of the facility.
812.014(2)(b)4, Fla. Stat., and 943.10, Fla. Stat.
Law enforcement equipment means any property, device, or apparatus used by a law
enforcement officer in the officers official business. A law enforcement officer is any person who is
elected, appointed, or employed full time by any municipality or the state or any political
subdivision thereof; who is vested with authority to bear arms and make arrests; and whose
primary responsibility is the prevention and detection of crime or the enforcement of the penal,
criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and
command personnel whose duties include, in whole or in part, the supervision, training, guidance,
and management responsibilities of full-time law enforcement officers, part-time law enforcement
officers, or auxiliary law enforcement officers but does not include support personnel employed by
the employing agency.
810.09(2)(d), Fla. Stat.
If the construction site is greater than one acre in area, see 810.09(2)(d)1, Fla. Stat., and
810.011(5)(a), Fla. Stat.
A legally posted construction site means a construction site of one acre or less in area with
a sign prominently placed on the property where the construction permits are located, in letters no
less than two inches in height, that reads in substantially the following manner: THIS AREA IS A
DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS
PROPERTY COMMITS A FELONY.
395.002(17), Fla. Stat.
Licensed facility means a hospital, ambulatory surgical center, or mobile surgical facility
licensed by the Florida Agency for Health Care Administration. See chapter 395, Fla. Stat.
810.09(1)(b), Fla. Stat.
Unenclosed curtilage means the unenclosed land or grounds, and any outbuildings, that
are directly and intimately adjacent to and connected with the dwelling and necessary, convenient,
and habitually used in connection with that dwelling.
812.012(3), Fla. Stat.
Obtains or uses means any manner of
a.
344
b.
c.
d.
345
INS. NO.
13.3
GRAND THEFT THIRD DEGREE (PROPERTY VALUED AT $100 OR MORE BUT LESS
THAN $300 AND TAKEN FROM DWELLING) 812.014(2)(d)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Petit theft - first degree
812.014(2)(e)
14.1
Petit theft second degree
None
812.014(3)(a)
14.1
PETIT THEFT FIRST DEGREE 812.014(2)(e)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Petit theft - second degree
812.014(3)(a)
None
346
INS. NO.
14.1
INS. NO.
14.1
INS. NO.
None
FELONY PETIT THEFT 812.014(3)(c)
CATEGORY ONE
CATEGORY TWO
Petit theft - first degree
Petit theft - second degree
FLA. STAT.
812.014(3)(b)
812.014(3)(a)
INS. NO.
14.1
14.1
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [508 So. 2d
1221], 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 2003 [850 So. 2d 1272], 2005 [911 So. 2d 766
and 915 So. 2d 609] and 2008.
It is error to inform the jury of a prior theft conviction. Therefore, if the information or
indictment contains an allegation of one or more prior theft convictions, do not read that allegation and do
not send the information or indictment into the jury room. If the defendant is found guilty of a theft, the
historical fact of a previous theft conviction shall be determined beyond a reasonable doubt in a
bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
347
2.
(Defendant) knew or should have known that (property alleged) was stolen.
348
349
2.
350
351
(Defendant) knowingly:
Give a, b, c, or d as applicable.
a. [took possession of or carried away merchandise].
b. [altered or removed a label or price tag from merchandise].
c. [transferred merchandise from one container to another].
d. [removed a shopping cart from a merchant's premises].
2.
[He] [She] intended to deprive the merchant of possession, use, benefit, or full retail
value of the [merchandise] [shopping cart].
Definitions
"Merchandise" means any personal property, capable of manual delivery, displayed, held
or offered for retail sale by a merchant.
"Merchant" means an owner or operator and the agent, consignee, employee, lessee or
officer of an owner or operator of any premises (or apparatus) used for retail purchase or sale of any
merchandise.
"Value of merchandise" means the sale price of the merchandise at the time it was stolen or
otherwise removed depriving the owner of his lawful right to ownership and sale of said item.
Optional Definitions
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions,
Sec. 16.07)
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
352
b.
2.
(Defendant) did not have the express authorization of the cable operator or other
communications service provider to do so.
3.
(Defendant) did so with the intent to defraud the cable operator or communications
service provider.
If you find the defendant guilty of unlawful reception of communications service, you must
further determine beyond a reasonable doubt whether the defendant has been previously convicted
of unlawful reception of communications service.
If you find the defendant guilty of unlawful reception of communications service, you must
further determine beyond a reasonable doubt whether the defendant acted for the purpose of direct
or indirect commercial advantage or private financial gain.
No Defense. 812.15(9), Fla. Stat.
This offense may be deemed to have been committed at any place where the defendant
manufactured, developed or assembled any communications devices involved in the violation, or assists
others in these acts, or any place where the communications device is sold or delivered to a purchaser or
recipient.
It is not a defense that some of the acts constituting the offense occurred outside the state.
Definitions.
Should the nature of the franchising authority become an issue, see 47 U.S.C. s. 522(9-10)
(1992) for a definition.
Cable Operator means a communications service provider who provides some or all of its
communications services pursuant to a cable television franchise issued by a franchising
authority.
Cable System means any communications service network, system or facility owned or
operated by a cable operator.
353
Any person or entity owning or operating any cable system or any fiber optic,
photo-optical, electromagnetic, photoelectronic, satellite, wireless, microwave, radio,
data transmission, or internet-based distribution network, system, or facility.
2.
Any person or entity providing any lawful communications service, whether directly
or indirectly, as a reseller or licensee, by or through any such distribution network,
system or facility.
2.
354
2.
(Defendant) did not have the express authorization of the cable operator or other
communications service provider to possess such a device.
Give 3a or 3b as applicable.
(Defendant)
3.
(Defendant)
a.
knew or had reason to know that the design of such device rendered it
primarily useful to intercept, receive, decrypt, transmit, retransmit or
acquire access to any cable operation or other communications service.
b.
knew or had reason to know that the design of such device rendered it
primarily useful for assisting others to intercept, receive, decrypt, disrupt,
transmit, retransmit or acquire access to any communications service.
If you find the defendant guilty of unlawful possession of a communications device, you
must determine beyond a reasonable doubt whether the defendant possessed:
Give a, b, or c as applicable.
a.
Less than five communications devices.
b.
c.
Definitions.
Should the nature of the franchising authority become an issue, see 47 U.S.C. s. 522 (9-10)
(1992) for a definition.
Cable Operator means a communications service provider who provides some or all of its
communications services pursuant to a cable television franchise issued by a franchising
authority.
Cable System means any communications service network, system or facility owned or
operated by a cable operator.
Communications Device means any type of electronic mechanism, transmission line or
connections and appurtenances thereto, instrument, device, machine, equipment, or software that is
capable of intercepting, transmitting, acquiring, decrypting, or receiving any communications
service, or any part, accessory, or component thereof, including any computer circuit, splitter,
connector, switches, transmission hardware, security module, smart card, software, computer chip,
electronic mechanism, or other component, accessory, or part of any communication device which is
355
Any person or entity owning or operating any cable system or any fiber optic,
photo-optical, electromagnetic, photoelectronic, satellite, wireless, microwave, radio,
data transmission, or internet-based distribution network, system, or facility.
2.
Any person or entity providing any lawful communications service, whether directly
or indirectly, as a reseller or licensee, by or through any such distribution network,
system or facility.
2.
356
2.
3.
(Defendant) received money from the pawnbroker for the [goods] [(property alleged)]
sold or pledged.
357
358
CATEGORY ONE
Grand theft second degree
Grand theft third degree
Petit theft first degree
Petit theft second degree
ORGANIZED FRAUD
817.034(4)(a)1,2,3 Fla. Stat.
CATEGORY TWO
FLA. STAT.
812.014(2)(b)1
812.014(2)(c)1,
2, 3
812.014(2)(e)
812.014(3)(a)
Comment
359
INS. NO.
14.1
14.1
14.1
14.1
ROBBERY
15.1 Robbery
812.13, Fla.Stat.
15.2 Carjacking
812.133, Fla.Stat.
15.3 Home-Invasion Robbery
812.135, Fla.Stat.
15.4 Robbery by Sudden Snatching
812.131, Fla. Stat.
360
15.1 ROBBERY
812.13, Fla. Stat.
To prove the crime of Robbery, the State must prove the following four elements beyond a
reasonable doubt:
1.
(Defendant) took the (money or property described in charge) from the person or
custody of (person alleged).
2.
Force, violence, assault, or putting in fear was used in the course of the taking.
3.
4.
The taking was with the intent to permanently or temporarily [deprive (victim) of
[his] [her] right to the property or any benefit from it] [appropriate the property of
(victim) to [his] [her] own use or to the use of any person not entitled to it].
Definition.
In the course of the taking means that the act occurred prior to, contemporaneous with,
or subsequent to the taking of the property and that the act and the taking of the property
constitute continuous series of acts or events.
Title to property.
In order for a taking of property to be robbery, it is not necessary that the person robbed be
the actual owner of the property. It is sufficient if the victim has the custody of the property at the
time of the offense.
Force. Give if applicable.
The taking must be by the use of force or violence or by assault so as to overcome the
resistance of the victim, or by putting the victim in fear so that the victim does not resist. The law
does not require that the victim of robbery resist to any particular extent or that the victim offer
any actual physical resistance if the circumstances are such that the victim is placed in fear of death
or great bodily harm if he or she does resist. But unless prevented by fear, there must be some
resistance to make the taking one done by force or violence.
Victim unconscious. Give if applicable.
It is also robbery if a person, with intent to take the property from a victim, administers any
substance to another so that the victim becomes unconscious and then takes the property from the
person or custody of the victim.
Taking.
In order for a taking by force, violence, or putting in fear to be robbery, it is not necessary
that the taking be from the person of the victim. It is sufficient if the property taken is under the
actual control of the victim so that it cannot be taken without the use of force, violence, or
intimidation directed against the victim.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of the crime of robbery, then you must further determine
beyond a reasonable doubt if in the course of committing the robbery the defendant carried some
361
kind of weapon. An act is in the course of committing the robbery if it occurs in an attempt to
commit robbery or in flight after the attempt or commission.
With a firearm.
If you find that the defendant carried a firearm in the course of committing the robbery,
you should find [him] [her] guilty of robbery with a firearm.
With a deadly weapon.
If you find that the defendant carried a (deadly weapon described in charge) in the course of
committing the robbery and that the (deadly weapon described in charge) was a deadly weapon, you
should find [him] [her] guilty of robbery with a deadly weapon.
With other weapon.
If you find that the defendant carried a weapon that was not a [firearm] [deadly weapon] in
the course of committing the robbery, you should find [him] [her] guilty of robbery with a weapon.
With no firearm or weapon.
If you find that the defendant carried no firearm or weapon in the course of committing the
robbery, but did commit the robbery, you should find [him] [her] guilty only of robbery.
Definitions.
A firearm is defined as (adapt from 790.001(6), Fla. Stat., as required by allegations).
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to
produce death or great bodily harm.
A weapon is defined to mean any object that could be used to cause death or inflict
serious bodily harm.
Also define attempt (see 5.1).
362
363
INS. NO.
15.1
14.1
5.1
15.4
15.4
14.1
14.1
14.1
14.1
8.3
8.4
8.1
10.3
14.4
CATEGORY ONE
Petit theft second degree
ROBBERY 812.13(2)(c)
CATEGORY TWO
FLA. STAT.
812.014(3)(a)
Attempt
777.04(1)
Robbery By Sudden
812.131(2)(b)
Snatching
Grand theft third degree
812.014(2)(c)
Petit theft first degree
812.014(2)(e)
Battery
784.03
Assault
784.011
Aggravated assault
784.021
Resisting a merchant
812.015(6)
INS. NO.
14.1
5.1
15.4
14.1
14.1
8.3
8.1
8.2
14.4
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1989, [543 So.2d
1205] 1995, [665 So.2d 212], and 2008.
364
15.2 CARJACKING
812.133, Fla. Stat.
To prove the crime of Carjacking, the State must prove the following three elements beyond
a reasonable doubt:
1.
(Defendant) took the motor vehicle from the person or custody of (victim).
2.
Force, violence, assault, or putting in fear was used in the course of the taking.
3.
The taking was with the intent to temporarily or permanently [deprive (victim) of
[his] [her] right to the motor vehicle or any benefit from it] [appropriate the motor
vehicle of (victim) to [his] [her] own use or to the use of any person not entitled to it].
Definition.
In the course of the taking means that the act occurred before, during, or after the taking
of the motor vehicle and that the act and the taking of the motor vehicle constitute a continuous
series of acts or events.
Title to motor vehicle.
In order for a taking of the motor vehicle to be carjacking, it is not necessary that the victim
be the actual owner of the motor vehicle. It is sufficient if the victim has the custody of the motor
vehicle at the time of the offense.
Force. Give if applicable.
The taking must be by the use of force or violence or by assault so as to overcome the
resistance of the victim, or by putting the victim in fear so that the victim does not resist. The law
does not require that the victim of carjacking resist to any particular extent or that the victim offer
any actual physical resistance if the circumstances are such that the victim is placed in fear of death
or great bodily harm if he or she does resist. But unless prevented by fear, there must be some
resistance to make the taking one done by force or violence.
Victim unconscious. Give if applicable.
It is also carjacking if a person, with intent to take the motor vehicle from a victim,
administers any substance to the victim so that [he] [she] becomes unconscious and then takes the
motor vehicle from the person or custody of the victim.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of the crime of carjacking, then you must further determine
beyond a reasonable doubt if in the course of committing the carjacking the defendant carried
some kind of weapon. An act is in the course of committing the carjacking if it occurs in an
attempt to commit carjacking or in flight after the attempt or commission.
With a firearm or deadly weapon.
If you find that the defendant carried a firearm or other deadly weapon in the course of
committing the carjacking, you should find [him] [her] guilty of carjacking with a firearm or
deadly weapon.
With no firearm or weapon.
If you find that the defendant carried no firearm or weapon in the course of committing the
carjacking, but did commit the carjacking, you should find [him] [her] guilty only of carjacking.
365
The only enhancement under the statute is for carrying a firearm or other deadly weapon, not for
carrying a nondeadly weapon as in the robbery statute.
Definitions.
A firearm is defined as (adapt from 790.001(6), Fla. Stat., as required by allegations).
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to
produce death or great bodily harm.
Lesser Included Offenses
CATEGORY ONE
Robbery
Grand theft- motor vehicle
CARJACKING 812.133
CATEGORY TWO
FLA. STAT.
812.13(2)(c)
812.014(2)(c)6
Attempt
777.04(1)
Battery
784.03
Assault
784.011
Aggravated assault
784.021
Comment
This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008.
366
INS. NO.
15.1
14.1
5.1
8.3
8.1
8.2
2.
At the time (defendant) entered the dwelling, [he] [she] intended to commit robbery.
3.
367
A weapon is defined to mean any object that could be used to cause death or inflict
serious bodily harm.
Also define attempt (see 5.1).
Lesser Included Offenses
HOME INVASION ROBBERY 812.135
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Robbery with a weapon
812.13(2)(b)
Robbery
812.13(2)(c)
Burglary
810.02(4)
Aggravated battery
784.045
Battery
784.03
Aggravated assault
784.021
Assault
784.011
Attempt
777.04(1)
Burglary
810.02(3)
Trespass
810.08
Petit theft
812.014(3)(a)
Petit theft
812.014(2)(e)
Comment
This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008.
368
INS. NO.
15.1
13.1
8.4
8.3
8.2
8.1
5.1
13.1
13.3
14.1
14.1
(Defendant) took the (money or property described in charge) from the person of
(person alleged).
2.
3.
The taking was with the intent to permanently or temporarily deprive (victim) or
the owner of [his] [her] right to the property.
4.
In the course of the taking, (victim) was or became aware of the taking.
In the course of the taking means that the act occurred prior to, contemporaneous with, or
subsequent to the taking of the property and that the act and the taking of the property constitute a
continuous series of acts or events.
Force or resistance.
It is not necessary for the State to prove that the defendant used any amount of force
beyond that effort necessary to obtain possession of the money or other property, that there was any
resistance offered by the victim or that there was any injury to the victims person.
Title to property.
In order for a taking to be Robbery by Sudden Snatching, it is not necessary that the person
robbed be the actual owner of the property. It is sufficient if the victim has possession of the
property at the time of the offense.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of the crime of Robbery by Sudden Snatching, then you
must further determine beyond a reasonable doubt if in the course of committing the Robbery by
Sudden Snatching the defendant carried some kind of weapon. An act is in the course of
committing a Robbery by Sudden Snatching if it occurs in an attempt to commit Robbery by
Sudden Snatching or in fleeing after the attempt or commission.
With a firearm.
If you find that the defendant carried a firearm in the course of committing the Robbery by
Sudden Snatching, you should find [him] [her] guilty of Robbery by Sudden Snatching with a
firearm.
With a deadly weapon.
If you find that the defendant carried a (deadly weapon described in charge) in the course of
committing the Robbery by Sudden Snatching, and that the (deadly weapon described in charge) was
a deadly weapon, you should find [him] [her] guilty of Robbery by Sudden Snatching with a deadly
weapon.
369
370
INS. NO
14.1
5.1
14.1
14.1
8.3
8.1
14.4
CHILD ABUSE
16.1
16.2
16.3
16.4
16.5
16.6
16.7
16.8
16.9
16.10
16.11
16.12
371
(Defendant)
Give as applicable.
a. committed aggravated battery upon (victim).
b. willfully tortured (victim).
c. maliciously punished (victim).
d. willfully and unlawfully caged (victim).
e. knowingly or willfully committed child abuse upon (victim) and in so doing caused
great bodily harm, permanent disability, or permanent disfigurement.
2.
1.
(Defendant) intentionally
Give as applicable.
a. touched or struck (victim) against the will of (victim).
b. caused bodily harm to (victim).
2.
372
child] [active encouragement of any person to commit an act that results or could reasonably be
expected to result in physical or mental injury to a child].
Lesser Included Offenses
CATEGORY ONE
None
INS. NO.
827.03(1)
784.03
16.3
8.3
777.04(1)
5.1
Comment
This instruction is based on 827.03(2), Fla.Stat. (1999). The definition of malice as used in this
statute is from State v. Gaylord, 356 So. 2d 313 (Fla. 1978); see also Young v. State, 753 So. 2d 725 (Fla.
1st DCA 2000).
This instruction was adopted in 1981 and amended in June 2002 and September 2005.
373
2.
Give 2a or 2b as applicable.
a. [intentionally or knowingly caused victim
[great bodily harm]
[permanent disability]
[permanent disfigurement]].
b. [used a deadly weapon].
3.
374
777.04(1)
827.03(1)
784.03
INS. NO.
5.1
16.3
8.3
Give as applicable.
a. intentionally inflicted [physical][or] [mental] injury upon (victim).
b. committed an intentional act that could reasonably be expected to result in
[physical] [or] [mental] injury to (victim).
c. actively encouraged another person to commit an act that resulted in or could
reasonably have been expected to result in [physical] [or] [mental] injury to (victim).
2.
Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002).
827.03 Fla. Stat. and case law are silent as to (1) which party bears the burden of persuasion
of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law,
defendants had both the burden of production and the burden of persuasion on affirmative defenses by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a defendant meets the burden
of production on an affirmative defense, the burden of persuasion is on the State to disprove the
affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary
prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See
the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
It is not a crime for [a parent] [a person who is acting as the lawful guardian] of a child to
impose reasonable physical discipline on a child for misbehavior under the circumstances even
though physical injury resulted from the discipline. (Insert appropriate burden of persuasion to
appropriate party.)
Definitions, give as applicable.
39.01(2), Florida Statutes.
Abuse means any willful act or threatened act that results in any physical, mental, or
sexual injury or harm that causes or is likely to cause the childs physical, mental, or emotional
health to be significantly impaired. Abuse of a child includes acts or omissions. [Corporal
discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself
constitute abuse when it does not result in harm to the child.]
39.01(32), Florida Statutes.
Harm means (insert specific allegation included from this subsection of the statute
charged in the indictment or information).
39.01(56), Florida Statutes.
Physical injury means death, permanent or temporary disfigurement, or
impairment of any bodily part.
375
INS. NO.
827.04(1)
16.4
784.03
8.3
777.04(1)
5.1
Comment
See Raford v. State, 828 So. 2d 1012 (Fla. 2002), and Dufresne v. State, 826 So. 2d 272 (Fla.
2002), for authority to incorporate definitions from Chapter 39, Florida Statutes.
This instruction was adopted in 1981 and amended in 1985, 1989, 2002, and 2011.
376
377
378
379
(Defendant)
Give as applicable.
a. [willfully] [by culpable negligence] failed or omitted to provide (victim) with the
care, supervision, and services necessary to maintain (victim's) physical or mental
health.
b.
2.
3.
4.
Neglect of a child may be based on repeated conduct or on a single incident or omission that
resulted in, or reasonably could have been expected to result in, serious physical or mental injury,
or a substantial risk of death, to a child.
Definition. Give in all cases.
"Caregiver" means a parent, adult household member, or other person responsible for a
child's welfare.
Definition. Give if applicable.
I will now define what is meant by the term "culpable negligence": Each of us has a duty to
act reasonably toward others. If there is a violation of that duty, without any conscious intention to
harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary
care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The
negligence must be committed with an utter disregard for the safety of others. Culpable negligence
is consciously doing an act or following a course of conduct that the defendant must have known, or
reasonably should have known, was likely to cause death or great bodily harm.
Lesser Included Offenses
CATEGORY ONE
Child neglect
380
INS. NO.
16.6
Comment
This instruction was adopted in June 2002.
381
(Defendant)
Give as applicable.
a. [willfully] [by culpable negligence] failed or omitted to provide (victim) with the
care, supervision, and services necessary to maintain (victim's) physical or mental
health.
b. failed to make a reasonable effort to protect (victim) from abuse, neglect, or
exploitation by another person.
2.
3.
Neglect of a child may be based on repeated conduct or on a single incident or omission that
resulted in, or reasonably could have been expected to result in, serious physical or mental injury,
or a substantial risk of death, to a child.
Definition. Give in all cases.
"Caregiver" means a parent, adult household member, or other person responsible for a
child's welfare.
Definition. Give if applicable.
I will now define what is meant by the term "culpable negligence": Each of us has a duty to
act reasonably toward others. If there is a violation of that duty, without any conscious intention to
harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary
care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The
negligence must be committed with an utter disregard for the safety of others. Culpable negligence
is consciously doing an act or following a course of conduct that the defendant must have known, or
reasonably should have known, was likely to cause death or great bodily harm.
Lesser Included Offenses
CATEGORY ONE
None
382
784.05
INS. NO.
8.9
2.
3.
Definitions.
Sexual performance means any performance or part thereof which includes sexual
conduct by a child of less than 18 years of age.
Performance means any play, motion picture, photograph, or dance or any other visual
representation exhibited before an audience.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed.
Give if applicable.
A mothers breastfeeding of her baby does not under any circumstance constitute sexual
conduct.
Give as applicable.
Deviate sexual intercourse means sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth
and the vulva.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however,
sexual battery does not include an act done for a bona fide medical purpose.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
Simulated means the explicit depiction of sexual conduct, as defined above, which
creates the appearance of such conduct and which exhibits any uncovered portion of the breasts,
genitals, or buttocks.
383
Comment
This instruction was adopted in 2008.
384
2.
3.
4.
Definitions.
Sexual performance means any performance or part thereof which includes sexual
conduct by a child of less than 18 years of age.
Performance means any play, motion picture, photograph, or dance or any other visual
representation exhibited before an audience.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed.
Give if applicable.
A mothers breastfeeding of her baby does not under any circumstance constitute sexual
conduct.
Give as applicable.
Deviate sexual intercourse means sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth
and the vulva.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however,
sexual battery does not include an act done for a bona fide medical purpose.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
385
Simulated means the explicit depiction of sexual conduct, as defined above, which
creates the appearance of such conduct and which exhibits any uncovered portion of the breasts,
genitals, or buttocks.
Comment
This instruction was adopted in 2008.
386
2.
The performance included sexual conduct by a child less than 18 years of age.
3.
Definitions.
Promote means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver,
transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to
offer or agree to do the same.
Performance means any play, motion picture, photograph, or dance or any other visual
representation exhibited before an audience.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed.
Give if applicable.
A mothers breastfeeding of her baby does not under any circumstance constitute sexual
conduct.
Give as applicable.
Deviate sexual intercourse means sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth
and the vulva.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however,
sexual battery does not include an act done for a bona fide medical purpose.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
Simulated means the explicit depiction of sexual conduct, as defined above, which
creates the appearance of such conduct and which exhibits any uncovered portion of the breasts,
genitals, or buttocks.
387
Comment
This instruction was adopted in 2008.
388
2.
The possession of three or more copies of such [photograph] [motion picture] [exhibition]
[show] [representation] [presentation] may justify a finding of an intent to promote if, from all the
surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent
existed.
Definitions.
Promote means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver,
transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to
offer or agree to do the same.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed.
Give if applicable.
A mothers breastfeeding of her baby does not under any circumstance constitute sexual
conduct.
Give as applicable.
Deviate sexual intercourse means sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth
and the vulva.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however,
sexual battery does not include an act done for a bona fide medical purpose.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
389
Simulated means the explicit depiction of sexual conduct, as defined above, which
creates the appearance of such conduct and which exhibits any uncovered portion of the breasts,
genitals, or buttocks.
Comment
This instruction was adopted in 2008.
390
2.
3.
Definitions.
Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals;
actual physical contact with a persons clothed or unclothed genitals, pubic area, buttocks, or, if
such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party;
or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or
will be committed.
Give if applicable.
A mothers breastfeeding of her baby does not under any circumstance constitute sexual
conduct.
Give as applicable.
Deviate sexual intercourse means sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth
and the vulva.
Sadomasochistic abuse means flagellation or torture by or upon a person, or the condition
of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual
satisfaction from inflicting harm on another or receiving such harm oneself.
Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another or the anal or vaginal penetration of another by any other object; however,
sexual battery does not include an act done for a bona fide medical purpose.
Sexual bestiality means any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other.
Simulated means the explicit depiction of sexual conduct, as defined above, which
creates the appearance of such conduct and which exhibits any uncovered portion of the breasts,
genitals, or buttocks.
Comment
391
392
2.
Give 3a or 3b as applicable.
3.
(Defendant) left (victim) unattended or unsupervised in a motor
vehicle
a.
Note to Judge: Give 3b, if applicable, only when the crime charged is a violation of F.S.
316.6135(4).
b.
while [the motor was running] [the health of the victim was in danger].
Give if applicable.
4.
In so doing, [great bodily harm] [a permanent disability]
[permanent disfigurement] was caused to (victim).
Lesser Included Offenses
LEAVING A CHILD UNATTENDED OR UNSUPERVISED
IN A MOTOR VEHICLE 316.6135(4)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
316.6135(1)(a)
None
Comment
This instruction was adopted in 2009.
393
INS. NO.
Forgery
831.01, Fla.Stat.
Forgery Uttering
831.02, Fla.Stat.
Worthless Check
832.05(2), Fla.Stat.
Worthless Check Obtaining Property
832.05(4), Fla.Stat.
Stopping Payment on a Check
[ 832.041 Reserved]
Vending and Counterfeit Trademarks
[ 831.05 Reserved]
394
17.1 FORGERY
831.01, Fla.Stat.
To prove the crime of Forgery, the State must prove the following two elements beyond a
reasonable doubt:
1.
2.
It is not necessary that the defendant intended to use (document named in charge) [himself]
[herself] or to profit [himself] [herself] from its use. It is sufficient if [he] [she] intended that some
person would use it to injure or defraud.
Give if victim not named.
Nor is it necessary to prove what person the defendant intended to be injured or defrauded
if [he] [she] did intend that some person would be injured or defrauded.
Lesser Included Offenses
CATEGORY ONE
None
FORGERY 831.01
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981.
395
2.
3.
396
(Defendant)
[drew]
[made]
[uttered]
[issued]
[delivered]
the check admitted in evidence as State Exhibit __________.
2.
When (defendant) did so, there was not sufficient money on deposit in the bank to
pay the check.
3.
(Defendant) knew when [he] [she] wrote the check that [he] [she] did not have
sufficient money on deposit with the bank.
4.
(Defendant) knew [he] [she] had no arrangement or understanding with the bank for
the payment of the check when it was presented.
5.
(Name of payee or holder) knew that (defendant's) funds and credit at the bank at the
time the check was given were insufficient to pay the check; or
397
2.
(Name of payee or holder) had good reason to believe that (defendant's) funds and
credit at the bank at the time the check was given were insufficient to pay the check;
or
3.
Give if applicable.
When an employee of a business receives a check, the business must be regarded as knowing
whatever the employee knows about the check.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
Comment
This instruction was adopted in 1981 and amended in 1987.
398
INS. NO.
5.1
(Defendant)
[drew]
[made]
[uttered]
[issued]
[delivered]
the check admitted in evidence as State Exhibit _____.
2.
3.
The [services] [goods] [wares] [(other thing of value alleged)] had some monetary
value.
4.
When (defendant) did so, there was not sufficient money on deposit in the bank to
pay the check.
5.
(Defendant) knew when the check was written there was not sufficient money on
deposit with the bank.
6.
(Defendant) knew there was no arrangement or understanding with the bank for the
payment of the check when it was presented.
7.
(Name of payee) knew that (defendant's) funds and credit at the bank at the time the
check was given were insufficient to pay the check; or
399
2.
(Name of payee) had good reason to believe that (defendant's) funds and credit at the
bank at the time the check was given were insufficient to pay the check.
Give if applicable.
When an employee of a business receives a check, the business must be regarded as knowing
whatever the employee knows about the check.
Give if applicable.
The fact that (defendant) had previously issued a worthless check to the payee did not, by
itself, give (payee) reason to believe that (defendant) had insufficient funds to ensure payment of this
check.
Lesser Included Offenses
OBTAINING PROPERTY BY WORTHLESS CHECKS 832.05(4)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Worthless check
832.05(2)
17.3
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1981 and amended in 1987.
400
401
402
PERJURY
18.1
18.2
18.3
403
(Defendant) took an oath or otherwise affirmed that [he] [she] was obligated by
conscience or by law to speak the truth in (describe proceedings, official or unofficial,
in which the alleged oath was taken).
2.
The oath or affirmation was made to (person allegedly administering oath), who was a
(official capacity).
3.
(Defendant), while under an oath, made the statement (read from charge).
4.
5.
(Defendant) did not believe the statement was true when [he] [she] made it.
Give if applicable.
837.012(2), 837.02(2), Fla.Stat.
Knowledge of the materiality of the statement is not an element of this crime, and the
defendant's mistaken belief that [his] [her] statement was not material is not a defense to the
charge.
837.011, Fla.Stat.
Questions of the authority to administer oaths, whether the form of the oath or attestation is
required or authorized by law, the official or unofficial nature of the proceedings and the materiality of a
statement are matters of law.
Give if applicable. 837.011(3), Fla.Stat.
The law requires the judge to decide if the alleged statement is material, and I have decided
that it is material. Therefore, you will not further concern yourself with this issue.
An instruction on recantation should be given when raised as a defense. See 837.07, Fla.Stat.;
Carter v. State, 384 So.2d 1255 (Fla. 1980).
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 1992.
404
(Defendant) took an oath or otherwise affirmed that [he] [she] was obligated by
conscience or by law to speak the truth in (describe the official proceeding or
proceedings in which the alleged contradictory statements were made under oath).
2.
In (describe the official proceeding in which one of the statements was made),
(defendant) made the statement (read from charge).
3.
[In (describe the official proceeding in which the other statement was made), (defendant)
made the statement (read from charge).] [In the same proceeding, (defendant) made
the statement (read from charge).]
4.
5.
The statements were contradictory, which means that both statements could not be
true.
6.
837.021(3), Fla.Stat.
It is not necessary for the State to prove that either of the statements is untrue, if the State
has proved they are contradictory.
Defense
837.021(4), Fla.Stat.
You should acquit the defendant if you find that [he] [she] believed each statement to be
true at the time [he] [she] made it.
837.011, 837.021, Fla.Stat.
Questions of the authority to administer oaths, whether the form of the oath or attestation is
required or authorized by law, the official or unofficial nature of the proceedings and the materiality of a
statement are matters of law.
Give if applicable.
837.021(2), Fla.Stat.
The law requires the judge to decide if the alleged statements are material, and I have
decided that they are material. Therefore, you will not further concern yourself with this issue.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
405
2.
3.
(Defendant) knew that (name of law enforcement officer) was a law enforcement
officer.
4.
5.
Definition.
Willfully means intentionally, knowingly and purposely.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008.
406
BRIBERY
19.1
19.2
19.3
19.4
19.5
19.6
407
2.
(Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the
charge in this case as (read from charge).
3.
The (read from charge) was something of value, benefit, or advantage to [(person
bribed)] [a person in whose welfare (person bribed) was interested] not authorized by
law.
4.
The [gift] [offer] [promise] was made for the purpose of corruptly influencing
(person bribed) in the performance of some act or omission that
Give 4a or 4b as applicable.
a. [(defendant) believed to be
[within the official discretion of (person bribed)].]
[in violation of a public duty of (person bribed)].]
[in performance of a public duty of (person bribed)].]
b. [(person bribed) represented as being
[within [his] [her] official discretion].]
[in violation of [his] [her] public duty].]
[in performance of [his] [her] public duty].]
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of person bribed) is a public servant.
838.015(2), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the act with respect to which
the bribe was [given] [offered] [promised] was properly pending before (person bribed), or that by
law it might be properly brought before [him] [her], or that [he] [she] was qualified to act in the
desired way, or that [he] [she] had jurisdiction over the matter, or that [his] [her] official action was
necessary to achieve the purpose of the defendant.
Give if applicable. 838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
408
777.04(1)
Comment
This instruction was adopted in 1981 and amended in 2005 [911 So. 2d 766].
409
INS. NO.
5.1
2.
3.
The (read from charge) was something of value, benefit, or advantage to [(defendant)]
[a person in whose welfare (defendant) was interested] not authorized by law.
4.
The [request] [solicitation] [acceptance] [agreement to accept] was made with intent
of corruptly being influenced in the performance of some act or omission that
Give 4a or 4b as applicable.
a. [(person making bribe) believed to be
[within the official discretion of (defendant)].]
[in violation of a public duty of (defendant)].]
[in performance of public duty of (defendant)].]
b. [(defendant) represented as being
[within [his] [her] official discretion].]
[in violation of [his] [her] public duty].]
[in performance of [his] [her] public duty].]
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of defendant) is a public servant.
838.015(2), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the act with respect to which
[the bribe was [requested] [solicited] [accepted]] [an agreement was reached for the bribe] was
properly pending before the defendant, or that by law it might be properly brought before [him]
[her], or that [he] [she] was qualified to act in the desired way, or that [he] [she] had jurisdiction
over the matter, or that [his] [her] official action was necessary to achieve the purpose of the person
making the bribe.
Give if applicable. 838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
410
411
2.
(Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the
charge in this case as (read from charge).
3.
The (read from charge) was something of value, benefit, or advantage to [(person
bribed)] [a person in whose welfare (person bribed) was interested] not authorized by
law.
4.
The [gift] [offer] [promise] was corruptly made for the past, present, or future
performance, nonperformance, or violation of any act or omission of (person bribed)
that
Give 4a or 4b as applicable.
a. [(defendant) believed to be
[within the official discretion of (person bribed)].]
[in violation of a public duty of (person bribed)].]
[in performance of a public duty of (person bribed)].]
b. [(person bribed) represented as being
[within [his] [her] official discretion].]
[in violation of [his] [her] public duty].]
[in performance of [his] [her] public duty].]
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of person bribed) is a public servant.
838.016(3), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the exercise of official
discretion or violation of a public duty or performance of a public duty for which the bribe was
[given] [offered] [promised] was accomplished or was within the official discretion or public duty of
the public servant whose action or omission was sought to be rewarded or compensated.
Give if applicable.
838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
412
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
838.016(1), Fla.Stat.
There is no prohibition against a public servant accepting a reward for services performed in
apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate
instruction should be given.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
Comment
This instruction was adopted in 1981 and amended in 2005 [911 So. 2d 766].
413
INS. NO.
5.1
2.
3.
The (read from charge) was something of value, benefit, or advantage to [(defendant)]
[a person in whose welfare (defendant) was interested] not authorized by law.
4.
Give 4a or 4b as applicable.
a. [(person making bribe) believed to be
[within the official discretion of (defendant)].]
[in violation of a public duty of (defendant)].]
[in performance of a public duty of (defendant)].]
b. [(defendant) represented as being
[within [his] [her] official discretion].]
[in violation of [his] [her] public duty].]
[in performance of [his] [her] public duty].]
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of defendant) is a public servant.
838.016(3), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the exercise of official
discretion or violation of a public duty or performance of a public duty for which the bribe was
requested or solicited was accomplished or was within the official discretion or public duty of the
defendant.
Give if applicable.
838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
414
838.016(1), Fla.Stat.
There is no prohibition against a public servant accepting a reward for services performed in
apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate
instruction should be given.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in September 2005.
415
2.
(Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the
charge in this case as (read from charge).
3.
The (read from charge) was something of value, benefit, or advantage to [(person
bribed)] [a person in whose welfare (person bribed) was interested] not authorized by
law.
4.
The [gift] [offer] [promise] was corruptly made for the past, present or future
exertion of any influence upon or with (person sought to be influenced) regarding any
act or omission that
Give 4a or 4b as applicable.
a. [(defendant) believed to be
[within the official discretion of (person sought to be influenced)].]
[in violation of a public duty of (person sought to be influenced)].]
[in performance of a public duty of (person sought to be influenced)].]
b.
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of person bribed) is a public servant and that a
(office of person sought to be influenced) is a public servant.
838.016(3), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the exercise of influence for
which the bribe was [given] [offered] [promised] was accomplished or was within the influence of
the public servant whose action or omission was sought to be rewarded or compensated.
Give if applicable. 838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
416
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in September 2005.
417
2.
3.
The (read from charge) was something of value, benefit, or advantage to [(defendant)]
[a person in whose welfare (defendant) was interested] not authorized by law.
4.
Give 4a or 4b as applicable.
a. [(Person making bribe) believed to be
[within the official discretion of (person sought to be influenced)].]
[in violation of a public duty of (person sought to be influenced)].]
[in performance of a public duty of (person sought to be influenced)].]
b. [was represented to (person making bribe) as being
[within the official discretion of (person sought to be influenced)].]
[in violation of the public duty of (person sought to be influenced)].]
[in performance of the public duty of (person sought to be influenced)].]
Definition
838.014(6), Fla.Stat.
"Corruptly" means acting knowingly and dishonestly for a wrongful purpose.
The court now instructs you that a (office of person bribed) is a public servant and that a
(office of person sought to be influenced) is a public servant.
838.016(3), Fla.Stat.
In order for the defendant to be guilty, it is not necessary that the exercise of influence for
which the bribe was requested or solicited was accomplished or was within the influence of the
public servant whose action or omission was sought to be rewarded or compensated.
Give if applicable. 838.014(4), Fla.Stat.
For the purpose of the laws against bribery, any person who has been elected or appointed
to, or who is a candidate for election or appointment to, any public office is regarded as already
being in that office with respect to any transaction relating to an act to be done if and when [he]
[she] actually assumes office.
418
777.04(1)
Comment
This instruction was adopted in 1981 and amended in September 2005.
419
INS. NO.
5.1
FRAUD
20.1
20.2
20.3
20.4
20.5
20.6
20.7
20.8
20.9
20.10
20.11
20.12
20.13
20.14
20.15
20.16
20.17
20.18
420
421
422
2.
3.
The aid or benefits came from a state or federally funded assistance program.
Definitions
"Fraudulent" means the intent or purpose of suppressing the truth or perpetrating a
deception.
"Aid or abet" means help, assist, or facilitate.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
Optional Definition
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions,
Sec. 16.07)
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Optional (if appropriate) Proof
A paid warrant made to the order of the defendant is sufficient to establish that the
defendant received assistance, though this fact may be disproved by competent evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
423
Give a or b as applicable.
a. [a change in circumstances in order to obtain or continue to receive aid or benefits
to which [he] [she] is not entitled].
b. [a material fact by false statement, misrepresentation, impersonation, or other
fraudulent means, and the fact was used to determine qualifications to receive aid or
benefits].
2.
The other person received benefits to which [he] [she] was not entitled.
3.
The aid or benefits came from a state or federally funded assistance program.
Definitions
"Fraudulent" means the intent or purpose of suppressing the truth or perpetrating a
deception.
"Aid or abet" means help, assist, or facilitate.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
Optional Definition
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions,
Sec. 16.07)
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Optional (if appropriate) Proof
A paid warrant made to the order of the defendant is sufficient to establish that the
defendant received assistance, though this fact may be disproved by competent evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
424
425
2.
The aid or benefits came from a state or federally funded assistance program.
Definitions
"Fraudulent" means the intent or purpose of suppressing the truth or perpetrating a
deception.
"Aid or abet" means help, assist, or facilitate.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
Optional Definition
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions, Sec.
16.07)
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Optional (if appropriate) Proof
A paid warrant made to the order of the defendant is sufficient to establish that the
defendant received assistance, though this fact may be disproved by competent evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
426
Give a, b, or c as applicable.
a. [used, transferred, acquired, trafficked, altered, forged or possessed]
b. [attempted to use, traffic, alter, force, or possess]
c. [aided and abetted another person to use, transfer, acquire, traffic, alter, forge or
possess]
A food stamp, food stamp identification card, authorization for the purchase of food
stamps, a certificate of eligibility for medical services, or a Medicaid identification card.
2.
The use, transfer, acquisition, traffic, alteration, forgery, or possession was not
authorized by law.
Definitions
"Aid or abet" means help, assist, or facilitate.
"Traffic" means trade, sell, or exchange.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
Optional Definition
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions, Sec.
16.07)
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Optional (if appropriate) Proof
A paid warrant made to the order of the defendant is sufficient to establish that the
defendant received assistance, though this fact may be disproved by competent evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
427
428
1.
2.
[He] [She] gained possession, by virtue of his position, of funds, a food stamp, an
authorization for food stamps, a food stamp identification card, a certificate of
eligibility for prescribed medicine, a Medicaid identification card, or assistance from
any other state or federally funded program.
3.
Definitions
"Fraudulently" means purposely or intentionally suppressing the truth and/or
perpetrating a deception.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
429
2.
3.
Definitions
"Fraudulently" means purposely or intentionally suppressing the truth and/or
perpetrating a deception.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
Defense
It is not a defense that the defendant repaid the assistance or services obtained.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
430
431
432
433
(Defendant) knowingly filed, attempted to file, or aided and abetted in filing a claim
for services to a recipient of benefits under a state or federally funded assistance
program.
2.
The claim was for services which were false, not rendered, or for unauthorized items
or services.
Definitions
"Aid or abet" means help, assist or facilitate.
An "attempt" to commit a crime is the formation of an intent to commit that crime and the
doing of some act toward the commission of the crime other than mere preparation to commit the
crime.
"Knowingly" means with actual knowledge and understanding of the facts or the truth.
Optional Definition
"Knowingly" means an act done voluntarily and intentionally and not because of mistake
or accident or other innocent reason. (Devitt & Blackmar Federal Jury Practice and Instructions,
Sec. 16.07)
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
434
2.
Definitions.
Willfully means intentionally and purposely.
Fraudulently means purposely or intentionally suppressing the truth or perpetrating a
deception or both.
Authorization means empowerment, permission, or competence to act.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of Fraudulent Use of Personal Identification Information,
you must then determine whether the State has further proved beyond a reasonable doubt that:
Give only if Fraudulent Use is charged.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $5000 or more.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $50,000 or more.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $100,000 or more.
The defendant fraudulently used the personal identification information of 10 or more but
fewer than 20 individuals without their consent.
The defendant fraudulently used the personal identification information of 20 or more but
fewer than 30 individuals without their consent.
435
436
INS. NO.
5.1
2.
3.
Definitions.
Willfully means intentionally and purposely.
Authorization means empowerment, permission, or competence to act.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Harass means to engage in conduct directed at a specific person that is intended to cause
substantial emotional distress to such person and serves no legitimate purpose. Harass does not
mean to use personal identification information for accepted commercial purposes and does not
include constitutionally protected conduct such as organized protests.
Enhanced penalty. Give if applicable. See 817.568 (5) and (10), Fla. Stat., which if alleged
will require an interrogatory.
Lesser Included Offenses
HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION 817.568(4)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO
None
Attempt (possession only)
777.04(1)
5.1
Comment
This instruction was adopted in 2007.
437
2.
3.
(Defendant) did so without first obtaining the consent of (victim) or [his] [her] legal
guardian.
Definitions.
Willfully means intentionally and purposely.
Fraudulently means purposely or intentionally suppressing the truth or perpetrating a
deception.
Authorization means empowerment, permission, or competence to act.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Enhanced penalty. Give if applicable. See 817.568 (5) and (10), Fla. Stat., which if alleged
will require an interrogatory.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A MINOR 817.568(6)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Attempt
777.04(1)
Comment
This instruction was adopted in 2007.
438
INS. NO.
5.1
2.
3.
(Defendant) was [the parent of] [the legal guardian of] [exercised custodial authority
over] (victim) at the time.
Definitions.
Willfully means intentionally and purposely.
Fraudulently means purposely or intentionally suppressing the truth or perpetrating a
deception.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Enhanced penalty. Give if applicable. See 817.568 (5) and (10), Fla. Stat., which if alleged
will require an interrogatory.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A MINOR BY A
[PARENT] [GUARDIAN] 817.568(7)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 2007.
439
2.
Definitions.
Willfully means intentionally and purposely.
Fraudulently means purposely or intentionally suppressing the truth or perpetrating a
deception or both.
Authorization means empowerment, permission, or competence to act.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Enhanced penalty. Give if applicable.
If you find the defendant guilty of Fraudulent Use of Personal Identification Information of
a Deceased Individual, you must then determine whether the State has further proved beyond a
reasonable doubt that:
Give only if Fraudulent Use is charged.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $5000 or more.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $50,000 or more.
The pecuniary benefit, the value of the services received, the payment sought to be avoided,
or the amount of the injury or fraud perpetrated was $100,000 or more.
The defendant fraudulently used the personal identification information of 10 or more but
fewer than 20 individuals without their consent.
440
The defendant fraudulently used the personal identification information of 20 or more but
fewer than 30 individuals without their consent.
The defendant fraudulently used the personal identification information of 30 or more
individuals without their consent.
Give in all cases if applicable.
The crime was facilitated or furthered by the use of a public record.
The defendant misrepresented [himself] [herself] to be [a law enforcement officer] [an
employee or representative of a bank, credit card company, credit counseling company or credit
reporting agency].
The defendant wrongfully represented that [he] [she] was seeking to assist the victim with
the victims credit history.
Lesser Included Offenses
FRAUDULENT USE OR POSSESSION OF PERSONAL IDENTIFICATION INFORMATION
CONCERNING A DECEASED INDIVIDUAL 817.568(8)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 2008.
441
(Defendant) willfully and fraudulently [created] [used] [possessed with intent to use]
counterfeit or fictitious personal identification information.
Give 2a or 2b as applicable.
2.
a.
The personal identification information concerned a
fictitious individual.
b.
3.
[He] [She] did so with intent to commit or facilitate the commission of a fraud on
another person.
Definitions.
Willfully means intentionally and purposely.
Fraudulently means purposely or intentionally suppressing the truth or perpetrating a
deception.
Authorization means empowerment, permission, or competence to act.
Personal identification information means any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual, including any name,
postal or electronic mail address, telephone number, social security number, date of birth, mothers
maiden name, official state or United States issued drivers license or identification number, alien
registration number, government passport number, employer or taxpayers identification number,
Medicaid or food stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris
image, or other unique physical representation, unique electronic identification number, address, or
routing code, medical record, telecommunication identifying information or access device, or other
number or information that can be used to access a persons financial resources.
Counterfeit or fictitious personal identification information means any counterfeit,
fictitious or fabricated information in the similitude of the data just defined to you that, although
not truthful or accurate, would in context lead a reasonably prudent person to credit its
truthfulness and accuracy.
Enhanced penalty. Give if applicable. See 817.568 (5) and (10), Fla. Stat., which if alleged
will require an interrogatory.
Lesser Included Offenses
442
443
OBSTRUCTION OF JUSTICE
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
444
2.
At the time, (victim) was engaged in the [execution of legal process] [lawful execution
of a legal duty].
3.
At the time, (victim) was [an officer]][a person legally authorized to execute process].
4.
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law
enforcement officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991). See 843.01
Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in
charge) is an officer within the meaning of this law.
Note to Judge:
A special instruction incorporating 776.051(1) Fla. Stat. should be given when the defense
claims the officer was acting unlawfully.
A special instruction incorporating instructions 3.6(f); 3.6(g); and/or 3.6(h) should be given
when the defense claims the police used excessive force.
Definition. Give if applicable.
Offering to do violence means threatening to do violence.
Walker v. State, 965 So. 2d 1281 (Fla. 2nd DCA 2007).
Lesser Included Offenses
RESISTING OFFICER WITH VIOLENCE 843.01
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Resisting officer without
843.02
violence
INS. NO.
21.2
Comment
This instruction was adopted in 1981 and amended in 1995 and 2008.
445
2.
At the time, (victim) was engaged in the [execution of legal process] [lawful
execution of a legal duty].
3.
4.
At the time, (defendant) knew (victim) was [an officer][a person legally authorized
to execute process].
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law
enforcement officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991). See 843.02
Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in
charge) is an officer within the meaning of this law.
Lesser Included Offenses
RESISTING OFFICER WITHOUT VIOLENCE 843.02
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
None
Attempt
777.04(1)
INS. NO.
5.1
Comment
This instruction was adopted in 1981 [431 So.2d 594] and amended in 1989 [543 So. 2d
1205], 1995 [657 So.2d 1152] and 2008.
446
2.
Give a or b as applicable.
a. [to obstruct the due execution of the law].
b. [to intimidate, hinder, or interrupt (name of officer)].
3.
(Name of person) was an officer engaged in the legal performance of [his] [her]
duties or the exercise of [his] [her] rights under the constitution or laws of this state.
447
1.
2.
[He] [She] knew the information or report was false because no such crime had
actually been committed.
3.
The information or report was [given or said] [caused to be given or said] to a law
enforcement officer.
4.
[He] [She] knew or should have known (______________) was a law enforcement
officer.
Definitions
"Willfully" means intentionally, knowingly, and purposely.
775.08, Fla.Stat.
"Crime" means a felony or misdemeanor.
Optional Definitions. 775.08(1), Fla.Stat.
"Felony" means any criminal offense punishable by death or imprisonment in a state
penitentiary.
775.08(2), Fla.Stat.
"Misdemeanor" means any criminal offense punishable by imprisonment in a county
correctional facility not in excess of one year.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
The definition of law enforcement officer is contained in 843.01, 843.02, Fla.Stat.
This instruction was adopted in 1981.
448
2.
3.
4.
5.
(Defendant) knew that (name of law enforcement officer) was a law enforcement
officer.
The court now instructs you that (crime alleged) is a crime, and that a
(name the official position of law enforcement officer, such as deputy sheriff or police officer) is a law
enforcement officer.
Lesser Included Offenses
No lesser included offenses have been identified for this offense. See Silvestri v. State, 332 So.2d
351, 354 (Fla. 4th DCA 1976).
Comment
See Wright v. State, 586 So.2d 1024, 1030 (Fla. 1991) on how to instruct the jury on who qualifies
as a law enforcement officer. See section 843.01, Fla. Stat, for a list of law enforcement officers.
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August 30, 2007].
449
2.
3.
4.
(Defendant) gave the false information to (name of the law enforcement officer).
5.
6.
(Defendant) knew that (name of law enforcement) was a law enforcement officer.
The court now instructs you that (crime alleged) is a capital felony, and that a (name official
position of law enforcement officer, such as deputy sheriff or police officer) is a law enforcement officer.
Lesser Included Offenses
GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CAPITAL
FELONY 837.05(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
837.05(1)
21.5
817.49
21.4
Comment
See Wright v. State, 586 So.2d 1024, 1030 (Fla. 1991) on how to instruct the jury on who qualifies
as a law enforcement officer. See Florida Statute 843.01 for a list of law enforcement officers. Attempt
is not a lesser included offense. See Silvestri v. State, 332 So.2d 351, 354 (Fla. 4th DCA 1976).
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August 30, 2007].
450
2.
(Defendant) [gave a false name] [falsely identified [himself] [herself] in any way] as
(victim) to (name of officer or county jail personnel).
3.
At the time, (name of officer or county jail personnel) was [a law enforcement officer]
[personnel of a county jail].
4.
(Victim) was adversely affected by the unlawful use of [his] [her] [name]
[identification].
The court now instructs you that every (name of official position of [officer] [county jail
personnel]) is [an officer] [personnel of a county jail] within the meaning of this law.
In giving this instruction, do not refer to the [officer] [county jail personnel] by name. The
instruction must state the class of officer or personnel to which the individual named in the charge
belongs, e.g., deputy sheriff, correctional officer, booking officer. See Wright v. State, 586 So. 2d 1024
(Fla. 1991).
Give if lawfully detained is charged.
A person may be lawfully detained if the officer reasonably suspects that person violated or
was about to violate the law.
Lesser Included Offenses
21.7 GIVING FALSE NAME OR IDENTIFICATION TO LAW ENFORCEMENT OFFICER
ADVERSELY AFFECTING ANOTHER
901.36(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
False Name or ID
901.36(1)
to LEO
None
Comment
This instruction was adopted in 2008.
451
452
GAMBLING
22.1
22.2
22.3
22.4
22.5
22.6
22.7
22.8
22.9
22.10
22.11
22.12
22.13
22.14
Gambling
849.08, Fla.Stat.
Maintaining a Gambling Establishment
849.01-A (849.02) Fla.Stat.
Permitting Gambling
849.01-B, Fla.Stat. (849.02)
Renting Space for Gambling
849.03, Fla.Stat.
Setting Up, Promoting, or Conducting a Lottery
849.09(1)(a), Fla.Stat.
Disposing of Money or Property by Lottery
849.09(1)(b), Fla.Stat.
Conducting a Lottery Drawing
849.09(1)(c), Fla.Stat.
Assisting in Lottery
849.09(1)(d), Fla.Stat.
Selling Lottery Tickets
849.09(1)(g), Fla.Stat.
Possessing a Lottery Ticket
849.09(1)(h), Fla.Stat.
Possessing Rundown Sheets, etc.
849.09(1)(k), Fla.Stat
Betting
849.14, Fla.Stat
Bookmaking on Grounds of a Permit-Holder
550.3615, Fla. Stat.
(adapted from former 849.24, Fla.Stat.)
Bookmaking
849.25(1), Fla.Stat.
453
22.1 GAMBLING
849.08, Fla.Stat.
To prove the crime of Gambling, the State must prove the following three elements beyond a
reasonable doubt:
1.
2.
3.
It is not necessary that the risked money or property was that of the defendant.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
454
1.
(Defendant),
a. [in person or by a servant, clerk, or agent,]
The [place was] [articles were] habitually kept or maintained for the purpose of
gambling.
A single instance or rare and isolated instances of placing bets or gambling would be
insufficient to constitute the crime. But if the property was used at frequent intervals as a place or
means for betting, gaming, or gambling, the crime has been committed even if the principal use of
the property is for some other lawful purpose.
It is not necessary to prove that the defendant gambled, or received any profit from the
gambling, or that [he] [she] wholly owned or controlled the property.
It is not necessary to a conviction of this offense that there be direct and positive evidence of
gambling. It is sufficient if implements, devices, or apparatus commonly used by gambling houses
or by gamblers are found under circumstances that convince you that the premises were kept or
maintained for the purpose of gambling.
Give if applicable under 849.02, Fla.Stat.
A servant, clerk, agent, or employee of another who keeps or maintains property for the
purpose of gambling is equally guilty with [his] [her] employer.
Definition
"Gambling" is a game of chance in which the participant risks money or property on the
outcome with the expectation of gaining or losing as a result of the game.
If there is evidence of the exception referred to in 849.093 and 849.085, Fla.Stat., an
appropriate instruction should be given.
455
456
(Defendant),
a. [in person or by a servant, clerk, or agent,]
The word "knowingly" is implied in "permit" or "allow" but is added here to make this fact clear
to the jury. In this definition the word "gambling" has been added to effectuate the obvious legislative
intent.
A single instance or rare and isolated instances of placing bets or gambling would be
insufficient to constitute the crime. But if the place was used at frequent intervals for betting,
gaming, or gambling, the crime has been committed, even if the principal use of the place was for
some other lawful purpose.
It is not necessary that the defendant have the sole and exclusive control or management of
the place. It is sufficient if the control or management was exercised jointly with others. But a
person would not be guilty of this crime unless that person had sufficient control or management of
the place to carry with it the authority to deny or forbid that use of the place.
It is not necessary that the defendant have any personal interest in the gambling or in the
use of the place for gambling.
Definition
"Gambling" is a game of chance in which the participant risks money or property on the
outcome with the expectation of gaining or losing as a result of the game.
If there is evidence of the exception referred to in 849.093, Fla.Stat., an appropriate instruction
should be given.
457
849.09(1)(f)
849.09(1)(k)
849.11
INS. NO.
22.11
458
INS. NO.
2.
(Defendant) knew at the time of renting the place that (person alleged) intended to
use the place for gambling.
Definition
"Gambling" is a game of chance in which the participant risks money or property on the
outcome with the expectation of gaining or losing as a result of the game.
If there is evidence of the exception referred to in 849.093, Fla.Stat., an appropriate instruction
should be given.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
459
LOTTERY 849.09(1)(a)
CATEGORY TWO
FLA. STAT.
Lottery
Lottery
Lottery
Lottery
Lottery
Lottery
Playing at game of chance by
lot
Gambling devices, etc.
Comment
460
849.09(1)(f)
849.09(1)(g)
849.09(1)(h)
849.09(1)(i)
849.09(1)(j)
849.09(1)(k)
849.11
849.231
INS. NO.
22.9
22.10
22.11
2.
Definition
A "lottery" is a game of chance in which smaller sums of money or things of smaller value
are risked for the chance of getting money or property of greater value upon the happening of an
uncertain event. The three elements of a lottery are: (1) consideration that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.
It is not enough to show that the defendant merely sold lottery tickets or participated in the
collection of ticket proceeds or the keeping of records, or participated in determining the winners.
For conviction it must be proved that the defendant had an interest in or control of the
[money] [property] and [he] [she] caused it to be disposed of by a lottery conducted under [his]
[her] authority, direction, or supervision. It is not necessary, however, that the State prove that the
defendant performed all the acts incident to the lottery.
If there is evidence of an exception referred to at the end of 849.09(1) Fla.Stat., in 849.092 or
849.093, an appropriate instruction should be given.
Lesser Included Offenses
CATEGORY ONE
None
LOTTERY 849.09(1)(b)
CATEGORY TWO
FLA. STAT.
Lottery
Lottery
Lottery
Lottery
Lottery
Lottery
Gambling devices, etc.
Comment
461
849.09(1)(f)
849.09(1)(g)
849.09(1)(h)
849.09(1)(i)
849.09(1)(j)
849.09(1)(k)
849.231
INS. NO.
22.9
22.10
22.11
2.
Definitions
A "lottery" is a game of chance in which smaller sums of money or things of smaller value
are risked for the chance of getting money or property of greater value upon the happening of an
uncertain event. The three elements of a lottery are: (1) consideration that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.
A "lottery drawing" is the selection of the winner by chance.
It is not essential for conviction that the defendant had any other interest or participation in
the lottery.
If there is evidence of an exception referred to at the end of 849.09(1), Fla.Stat., in 849.092 or
849.093 an appropriate instruction should be given.
Lesser Included Offenses
CATEGORY ONE
None
LOTTERY 849.09(1)(c)
CATEGORY TWO
FLA. STAT.
Lottery
Lottery
Lottery
Lottery
Lottery
Lottery
Gambling devices, etc.
Comment
462
849.09(1)(f)
849.09(1)(g)
849.09(1)(h)
849.09(1)(i)
849.09(1)(j)
849.09(1)(k)
849.231
INS. NO.
22.9
22.10
22.11
Give 2a or 2b as applicable.
2. a. [(Defendant) aided or assisted in setting up, promoting, or conducting the lottery by
(read from charge)].
b. [(Defendant) was interested in or connected with the lottery by (read from charge)].
Definition
A "lottery" is a game of chance in which smaller sums of money or things of smaller value
are risked for the chance of getting money or property of greater value upon the happening of an
uncertain event. The three elements of a lottery are: (1) consideration that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.
If there is evidence of an exception referred to at the end of 849.09(1), Fla.Stat., in 849.092
or 849.093 an appropriate instruction should be given.
Lesser Included Offenses
CATEGORY ONE
None
LOTTERY 849.09(1)(d)
CATEGORY TWO
FLA. STAT.
Lottery
Lottery
Lottery
Lottery
Lottery
Lottery
Playing at game of chance by
lot
Gambling devices, etc.
Comment
463
849.09(1)(f)
849.09(1)(g)
849.09(1)(h)
849.09(1)(i)
849.09(1)(j)
849.09(1)(k)
849.11
849.231
INS. NO.
22.9
22.10
22.11
464
465
Comment
This instruction was adopted in 1981.
466
2.
These articles were designed for use, directly or indirectly, in gambling or in the
conduct of a lottery.
Definitions
Gambling
"Gambling" is a game of chance in which the participant risks money or property on the
outcome with the expectation of gaining or losing as a result of the game.
Lottery
A "lottery" is a game of chance in which smaller sums of money or things of smaller value
are risked for the chance of getting money or property of greater value upon the happening of an
uncertain event. The three elements of a lottery are: (1) consideration, that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.
Possession
To "possess" means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive. If a thing is in the hand of or on the person, or in
a bag or container in the hand of or on the person, or is so close as to be within ready reach and is
under the control of the person, it is in the actual possession of that person.
If a thing is in a place over which the person has control or in which the person has hidden
or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an
article, exercising control over it. In that case, each of those persons is considered to be in possession
of that article.
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not
be inferred or assumed.
If there is evidence of an exception referred to at the end of 849.09(1), Fla.Stat., in 849.092
or 849.093 an appropriate instruction should be given.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
467
Comment
This instruction was adopted in 1981.
468
22.12 BETTING
849.14, Fla.Stat.
To prove the crime of Betting, the State must prove the following two elements beyond a
reasonable doubt:
1.
2.
This charge may be adapted to cover the other ways of violating 849.14, Fla.Stat.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
469
2.
The bet or wager was upon the result of a trial or contest of skill, speed, power, or
endurance
[of horses].
[of dogs].
[between men].
3.
The bet or wager was taken upon the grounds or property of (alleged permit-holder).
4.
470
22.14 BOOKMAKING
849.25(1), Fla.Stat.
To prove the crime of Bookmaking, the State must prove the following three elements
beyond a reasonable doubt:
1.
2.
3.
849.25(1)(b), Fla.Stat.
To determine whether (defendant) was engaged in the offense of bookmaking the following
factors shall be considered:
1.
Taking advantage of betting odds created to produce a profit for the bookmaker or
charging a percentage on accepted wagers.
2.
Placing all or part of accepted wagers with other bookmakers to reduce the chance
of financial loss.
3.
4.
Taking or receiving wagers totaling more than $500 in any single day, or more than
$1,500 in any single week.
5.
Engaging in a common scheme with two or more persons to take or receive wagers.
6.
Taking or receiving wagers on both sides of a contest at the identical point spread.
7.
Any other factor relevant to establishing that the operating procedures of such
person are commercial in nature.
It is the committee's opinion that 849.25(1)(c), Fla.Stat., is for the judge and not the jury.
Therefore (1)(c) should not be read to the jury.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
471
INS. NO.
5.1
Comment
This instruction was adopted in 1981 and amended in 1989.
472
PROSTITUTION
23.1
23.2
23.3
23.4
23.5
23.6
23.7
473
474
475
Definitions.
Prostitution is the giving or receiving of the body for sexual activity for hire but excludes
sexual activity between spouses.
Lewdness is any indecent or obscene act. Indecent means wicked, lustful, unchaste,
licentious, or sensual intention on the part of the person doing the act.
Sexual activity means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another; anal or vaginal penetration of another by any other object; or the handling or
fondling of the sexual organ of another for the purpose of masturbation; however, the term does not
include acts done for bona fide medical purposes.
Assignation includes the making of any appointment or engagement for prostitution or
lewdness or any act in furtherance of such appointment or engagement.
A structure is any building of any kind, either temporary or permanent, which has a roof
over it and includes any closely adjoining land enclosed by a fence or wall.
A conveyance means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or
sleeping car.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 2008 and 2010.
476
2.
At the time, (defendant) knew or had reasonable cause to believe that such
[directing] [taking] [transporting] was for the purpose of [prostitution] [lewdness]
[assignation].
Definitions.
Prostitution is the giving or receiving of the body for sexual activity for hire but excludes
sexual activity between spouses.
Lewdness is any indecent or obscene act. Indecent means wicked, lustful, unchaste,
licentious, or sensual intention on the part of the person doing the act.
Sexual activity means oral, anal, or vaginal penetration by, or union with, the sexual
organ of another; anal or vaginal penetration of another by any other object; or the handling or
fondling of the sexual organ of another for the purpose of masturbation; however, the term does not
include acts done for bona fide medical purposes.
Assignation includes the making of any appointment or engagement for prostitution or
lewdness or any act in furtherance of such appointment or engagement.
A structure is any building of any kind, either temporary or permanent, which has a roof
over it and includes any closely adjoining land enclosed by a fence or wall.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 2008 and 2010.
477
478
479
480
OBSCENITY
24.1
24.2
24.3
24.4
24.5
24.6
24.7
481
(Defendant) had in [his] [her] possession, custody or control with the intent to sell,
lend, give away, distribute, transmit, show, transmute, or advertise the material
charged in this case.
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of __________
County, Florida, would find that the material, taken as a whole, appeals to the
prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political. or scientific
value.
3.
The defendant had knowledge of the nature, character, or content of the materials.
Definitions
Prurient Interest
A "prurient interest" in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
Patently Offensive
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of __________ County. Not all descriptions or depictions of sexual conduct go
substantially beyond customary community standards of decency for it to be patently offensive. You
must determine the collective view of the community in evaluating this element of the offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it
is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary intent
is to appeal to the prurient interest, then the mere
insertion of literary, artistic, political, or scientific materials irrelevant to the predominant theme
will not prevent you from determining that the material is obscene. Sex can be a legitimate subject
for literature, art, scientific inquiry, or political argument, and such serious treatments of sex, even
if appealing to the prurient interest and patently offensive, cannot be obscene.
482
Optional Definition
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
483
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of __________
County, Florida, would find that the material, taken as a whole, appeals to the
prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
3.
The defendant had knowledge of the nature, character, or content of the materials.
Definitions
Prurient Interest
A "prurient interest" in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
Patently Offensive
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of __________ County. Not all descriptions or depictions of sexual conduct go
substantially beyond customary community standards of decency for it to be patently offensive. You
must determine the collective view of the community in evaluating this element of the offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it
is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary intent
is to appeal to the prurient interest, then the mere
insertion of literary, artistic, political, or scientific materials irrelevant to the predominant theme
will not prevent you from determining that the material is obscene. Sex can be a legitimate subject
for literature, art, scientific inquiry, or political argument, and such serious treatments of sex, even
if appealing to the prurient interest and patently offensive,
cannot be obscene.
484
Optional Definition
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
485
1.
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of
______________ County, Florida, would find that the material, taken as a whole,
appeals to the prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
3.
The defendant had knowledge of the nature, character, or content of the materials.
Definitions
Prurient Interest
A prurient interest in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
Patently Offensive
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of __________ County. Not all descriptions or depictions of sexual conduct go
substantially beyond customary community standards of decency for it to be patently offensive. You
must determine the collective view of the community in evaluating this element of the offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it
is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary intent
is to appeal to the prurient interest, then the mere insertion of literary, artistic, political, or
scientific materials irrelevant to the predominant theme will not prevent you from determining that
the material is obscene. Sex can be a legitimate subject for literature, art, scientific inquiry, or
486
political argument, and such serious treatments of sex, even if appealing to the prurient interest and
patently offensive, cannot be obscene.
Optional Definition
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
487
1.
Give a, b, c or d as applicable.
a. [the selling, lending, giving away, distributing, transmitting, showing, or
transmuting of the material charged in this case or offering to do so].
b. [the possession, custody, or control with the intent to sell, lend, give away, distribute,
transmit, show, transmute, or advertise the material charged in this case].
c. [the designing, copying, drawing, photographing, posing for, writing, printing,
publishing, or in any manner, manufacturing or preparing the material charged in
this case].
d. [writing, printing, publishing, or uttering any advertisement or notice of any kind,
giving information directly or indirectly, stating or purporting to state where, how,
of whom, or by what means any, or what purports to be any of the material charged
in this case could be purchased, obtained, or had or caused such to be written,
printed, published, or uttered].
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of ________
County, Florida, would find that the material, taken as a whole, appeals to the
prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
3.
The defendant had knowledge of the nature, character, or content of the materials.
Definitions
Prurient Interest
A prurient interest in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
Patently Offensive
488
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of __________ County. Not all descriptions or depictions of sexual conduct go
substantially beyond customary community standards of decency for it to be patently offensive. You
must determine the collective view of the community in evaluating this element of the offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it
is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary intent
is to appeal to the prurient interest, then the mere insertion of literary, artistic, political, or
scientific materials irrelevant to the predominant theme will not prevent you from determining that
material is obscene. Sex can be a legitimate subject for literature, art, scientific inquiry, or political
argument, and such serious treatments of sex, even if appealing to the prurient interest and
patently offensive,
cannot be obscene.
Optional Definition
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
489
(Defendant) knowingly had in [his] [her] possession, custody, or control any of the
material charged without intent to sell, lend, give away, distribute, transmit, show,
transmute, or advertise the same.
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of __________
County, Florida, would find that the material, taken as a whole, appeals to the
prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
3.
The defendant had knowledge of the nature, character, or content of the materials.
Definitions
Prurient Interest
A "prurient interest" in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
Patently Offensive
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of _____________ County. Not all descriptions or depictions of sexual
conduct go substantially beyond customary community standards of decency for it to be patently
offensive. You must determine the collective view of the community in evaluating this element of the
offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value, it
is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary intent
is to appeal to the prurient interest, then the mere insertion of literary, artistic, political, or
scientific materials irrelevant to the predominant theme will not prevent you from determining that
the material is obscene. Sex can be a legitimate subject for literature, art, scientific inquiry, or
political argument, and such serious treatments of sex, even if appealing to the prurient interest and
patently offensive, cannot be obscene.
490
Optional Definition
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
491
2.
The material charged in this case is obscene. In order for such material to be legally
obscene, each of the following facts must be found:
a. The average person applying contemporary community standards of
______________ County, Florida, would find that the material, taken as a whole,
appeals to the prurient interest.
b. The material depicts or describes sexual conduct in a patently offensive way.
c. The material, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
3.
The defendant had knowledge of the nature, character or content of the materials.
Definitions.
Obscene.
In order to be obscene, the dominant theme of the material must depict or describe sexual
conduct in a patently offensive way, that is, it must do so in a way that offends the contemporary
community standards of __________ County. Not all descriptions or depictions of sexual conduct
goes substantially beyond customary community standards of decency for it to be patently
offensive. You must determine the collective view of the community in evaluating this element of
the offense.
In order for you to find that this material is obscene, you must also find that, taken as a
whole, it lacks serious literary, artistic, political, or scientific value. If the material has such value,
it is not obscene even if it appeals to the prurient interest in sex, and even if it depicts or describes
sexual conduct in a patently offensive way. In judging whether the value is serious, you should
consider the intent of the material. If it is a serious literary or artistic effort, or if it attempts to
convey scientific information, or a political point of view, it cannot be obscene. If the primary
intent is to appeal to the prurient interest, then the mere insertion of literary, artistic, political, or
scientific materials irrelevant to the predominant theme will not prevent you from determining that
the material is obscene. Sex can be a legitimate subject for literature, art, scientific inquiry, or
political argument, and such serious treatments of sex, even if appealing to the prurient interest and
patently offensive, cannot be obscene.
Prurient Interest.
A "prurient interest" in sex is a shameful or morbid interest in sex, nudity, or excretion.
Material does not appeal to a prurient interest if the average person today can view the material
candidly, openly, and with a normal interest in sex.
492
Optional Definition.
"Morbid interest" means diseased, dwelling on the gruesome, or sick.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 2012.
493
494
DRUG ABUSE
25.1
25.2
25.3
25.4
25.5
25.6
25.7
25.8
25.9
25.10
25.11
25.12
25.13
25.14
25.15
25.16
25.17
25.18
25.19
495
2.
Definition
"Sell" means the actual transfer or delivery of something to another person in exchange for
money or something of value.
Lesser Included Offenses
SALE OF SUBSTANCE IN PLACE OF A CONTROLLED SUBSTANCE 817.563
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
This instruction was adopted in 1995.
496
(Defendant)
[sold]
[purchased]
[manufactured]
[delivered]
[possessed with intent to sell]
[possessed with intent to purchase]
[possessed with intent to manufacture]
[possessed with intent to deliver]
a certain substance.
2.
497
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3).
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
498
499
500
(Defendant)
[sold]
[purchased]
[delivered]
[possessed]
more than 10 grams of a certain substance.
2.
b.
c.
501
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
SALE, PURCHASE, DELIVERY,OR POSSESSION OF MORE THAN 10 GRAMS 893.13(1)
(b), (2)(b), and (6)(c)
CATEGORY ONE
CATEGORY TWO
25.2
777.04(1)
5.1
If possession is charged
893.13(6)(a)
502
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d
84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
503
c.
2.
3.
Definition.
Deliver. 893.02(5), Fla. Stat.
Deliver or delivery means the actual, constructive, or attempted transfer from one
person to another of a controlled substance, whether or not there is an agency relationship.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
504
893.13(1)(a)
777.04(1)
INS.
NO.
25.2
5.1
893.13(6)(a)
893.13(6)(b)
893.13(3)
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], and 2007 [969 So.
2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
505
2.
3.
Definition.
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
506
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
CATEGORY ONE
Sale, manufacture, delivery,
etc.
777.04(1)
INS. NO.
25.2
5.1
893.13(6)(a)
893.13(6)(b)
893.13(3)
Comment
This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84] and 2007 [969 So. 2d
245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
507
(Defendant)
[sold]
[manufactured]
[delivered]
[possessed with intent to sell]
[possessed with intent to manufacture]
[possessed with intent to deliver]
a certain substance.
4.
508
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Definitions. Give as applicable.
Child care facility.
Child care facility means any child care center or arrangement which provides child care
for more than five children unrelated to the operator and which receives a payment, fee, or grant
for any of the children receiving care. It does not matter if the child care facility is operated for
profit or as a nonprofit operation.
Convenience business.
A convenience business means any place of business that is primarily engaged in the retail
sale of groceries, or both groceries and gasoline, and that is open for business at any time between
the hours of 11 p.m. and 5 a.m. The term does not include any of the following: a business that is
primarily a restaurant, or one that always has at least five employees on the premises after 11 p.m.
and before 5 a.m., or one that has at least 10,000 square feet of retail floor space. The term
509
convenience business also does not include any business in which the owner or members of[his]
[her] family work between the hours of 11 p.m. and 5 a.m.
Real property comprising a public housing facility.
The term real property comprising a public housing facility is defined as the real
property of a public corporation created as a housing authority by statute.
Community Center.
The term community center means a facility operated by a nonprofit community-based
organization for the provision of recreational, social, or educational services to the public.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3),Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
DRUG ABUSE CONTRABAND IN SPECIFIED LOCATIONS
893.13(1)(c) (f)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Drug abuse possession
893.13(6)(a)
None
INS. NO.
25.7
Comment
This instruction is based on section 893.13, Florida Statutes (1997), and adapted from the
standard instruction on sale of contraband near a school.
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d
84], 2000 [765 So. 2d 692], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
510
2.
3.
Definition.
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
511
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. F.S. 893.101(2)
and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
Note 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery without
consideration of not more than 20 grams of cannabis.
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d
84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
512
2.
3.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
513
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], and 2007 [969 So.
2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
514
(Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2.
3.
The quantity of the cannabis involved was [in excess of 25 pounds] [300 or more of
cannabis plants].
515
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of that
article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
516
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Cannabis, you must further determine by
your verdict whether the State has proved beyond a reasonable doubt that:
Enhanced penalty. See 893.135(1)(a)1.-3., Fla. Stat. to verify the weights or amounts specified
in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.
a.
[The quantity of the substance involved was [in excess of 25 pounds but less than
2,000 pounds.] [300 or more cannabis plants but not more than 2,000 cannabis
plants.]]
b.
[The quantity of the substance involved was [2,000 pounds or more but less than
10,000 pounds.] [2,000 or more cannabis plants but not more than 10,000 cannabis
plants.]]
c.
[The quantity of the substance involved was [10,000 pounds or more.] [10,000 or
more cannabis plants.]]
Lesser Included Offenses
INS. NO.
25.9
5.1
25.2
Comment
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
517
(Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2.
3.
518
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
519
[The quantity of the substance involved was 200 grams or more but less than 400
grams.]
c.
[The quantity of the substance involved was 400 grams or more but less than 150
kilograms.]
d.
INS. NO.
25.10
5.1
25.2
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [509 So. 2d
917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869
So. 2d 1205 (Fla. 2004)].
520
(Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2.
3.
521
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of that
article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
522
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Illegal Drugs, you must further determine
by your verdict whether the State has proved beyond a reasonable doubt that:
Enhanced penalty. Give if applicable up to extent of charge.
a.
[The quantity of the substance involved was 4 grams or more but less than 14
grams.]
b.
[The quantity of the substance involved was 14 grams or more but less than 28
grams.]
c.
[The quantity of the substance involved was 28 grams or more but less than 30
kilograms.]
d.
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
893.135(1)(c)1
25.11
777.04(1)
5.1
893.13(1)(a)
25.2
If purchase is charged
893.13(2)(a)
893.13(5)
893.13(6)(a)
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [509 So. 2d
917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869
So. 2d 1205 (Fla. 2004)].
523
(Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2.
3.
524
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
525
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Phencyclidine, you must further determine
by your verdict whether the State has proved beyond a reasonable doubt that:
Enhanced penalty. Give if applicable up to extent of charge.
a.
[The quantity of the substance involved was 28 grams or more but less than 200
grams.]
b.
[The quantity of the substance involved was 200 grams or more but less than 400
grams.]
c.
INS. NO.
25.9
5.1
25.2
Comment
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
526
(Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2.
3.
527
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish control over that
controlled substance when it is not in a place over which the person has control.
Constructive possession means the controlled substance is in a place over which the
(defendant) has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of a controlled substance, knowledge of its presence
may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance, knowledge of its
presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
528
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Methaqualone, you must further
determine by your verdict whether the State has proved beyond a reasonable doubt that:
Enhanced penalty. Give if applicable up to extent of charge.
a.
[The quantity of the substance involved was 200 grams or more but less than 5
kilograms.]
b.
[The quantity of the substance involved was 5 kilograms or more but less than 25
kilograms.]
c.
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
893.135(1)(e)1.a and b
25.13
777.04(1)
5.1
893.13(1)(a)
25.2
If purchase is charged
893.13(2)(a)
893.13(5)
Possession of methaqualone
893.13(6)(a)
Trafficking offenses
requiring lower quantities
of methaqualone
Comment
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
529
(Defendant) used or had in [his] [her] possession with intent to use drug
paraphernalia.
2.
Definitions.
Possession.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a paraphernalia is not sufficient to establish control over that
paraphernalia when it is not in a place over which the person has control.
Constructive possession means the paraphernalia is in a place over which the (defendant)
has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of
that article.
If a person has exclusive possession of paraphernalia, knowledge of its presence may be
inferred or assumed.
If a person does not have exclusive possession of paraphernalia, knowledge of its presence
may not be inferred or assumed.
530
Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls.
b.
Water pipes.
531
c.
d.
e.
Roach clips: meaning objects used to hold burning material, such as a cannabis
cigarette, that has become too small or too short to be held in the hand.
f.
g.
Chamber pipes.
h.
Carburetor pipes.
i.
Electric pipes.
j.
Air-driven pipes.
k.
Chillums.
l.
Bongs.
m.
2.
The proximity of the object, in time and space, to a direct violation of this act.
3.
4.
5.
6.
Instructions, oral or written, provided with the object concerning its use.
7.
Descriptive materials accompanying the object which explain or depict its use.
8.
9.
532
10.
Whether the owner, or anyone in control of the object, is a legitimate supplier of like
or related items to the community, such as a licensed distributor or dealer of tobacco
products.
11.
Direct or circumstantial evidence of the ratio of sales of the object or objects to the
total sales of the business enterprise.
12.
The existence and scope of legitimate uses for the object in the community.
13.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
Lesser Included Offenses
POSSESSION OF DRUG PARAPHERNALIA 893.147(1)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Attempt
777.04(1)
5.1
None
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1992 [603 So. 2d
1175], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
533
(Defendant)
[delivered]
[possessed with intent to deliver]
[manufactured with intent to deliver]
drug paraphernalia.
(Defendant) knew or reasonably should have known that the drug paraphernalia
would be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale or otherwise introduce into the human body
(specific substance alleged).
Definitions.
Possession. Give if possession is charged.
To possess means to have personal charge of or exercise the right of ownership,
management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
a.
b.
c.
Give if applicable.
Mere proximity to a paraphernalia is not sufficient to establish control over that
paraphernalia when it is not in a place over which the person has control.
Constructive possession means the paraphernalia is in a place over which the (defendant)
has control, or in which the (defendant) has concealed it.
In order to establish constructive possession of a controlled substance if the controlled
substance is in a place over which the (defendant) does not have control, the State must prove the
(defendants) (1) control over the controlled substance and (2) knowledge that the controlled
substance was within the (defendants) presence.
534
Possession may be joint, that is, two or more persons may jointly possess an article,
exercising control over it. In that case, each of those persons is considered to be in possession of that
article.
If a person has exclusive possession of a paraphernalia, knowledge of its presence may be
inferred or assumed.
If a person does not have exclusive possession of a paraphernalia, knowledge of its presence
may not be inferred or assumed.
Deliver. Give if delivery is charged. 893.02(5), Fla.Stat.
Deliver or delivery means the actual, constructive, or attempted transfer from one
person to another of paraphernalia, whether or not there is an agency relationship.
Manufacture. Give if manufacture is charged. 893.02(13)(a), Fla.Stat.
Manufacture means the production, preparation, packaging, labeling or relabeling,
propagation, compounding, cultivating, growing, conversion or processing of a controlled
substance, either directly or indirectly. Manufacturing can be by extraction from substances of
natural origin, or independently by means of chemical synthesis. It can also be by a combination of
extraction and chemical synthesis.
Drug Paraphernalia. 893.145, Fla. Stat.
The term drug paraphernalia means all equipment, products, and materials of any kind
which are used, intended for use, or designed for use in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or
otherwise introducing into the human body a controlled substance in violation of this chapter. It
includes, but is not limited to:
1.
Kits used, intended for use, or designed for use in planting, propagating, cultivating,
growing, or harvesting of any species of plant which is a controlled substance or
from which a controlled substance can be derived.
2.
Kits used, intended for use, or designed for use in manufacturing, compounding,
converting, producing, processing, or preparing controlled substances.
3.
Isomerization devices used, intended for use, or designed for use in increasing the
potency of any species of plant which is a controlled substance.
4.
Testing equipment used, intended for use, or designed for use in identifying, or in
analyzing the strength, effectiveness, or purity of, controlled substances.
5.
Scales and balances used, intended for use, or designed for use in weighing or
measuring controlled substances.
6.
535
7.
Separation gins and sifters used, intended for use, or designed for use in removing
twigs and seeds from, or in otherwise cleaning or refining, cannabis.
8.
Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or
designed for use in compounding controlled substances.
9.
Capsules, balloons, envelopes, and other containers used, intended for use, or
designed for use in packaging small quantities of controlled substances.
10.
Containers and other objects used, intended for use, or designed for use in storing or
concealing controlled substances.
11.
Hypodermic syringes, needles, and other objects used, intended for use, or designed
for use in parenterally injecting controlled substances into the human body.
12.
Objects used, intended for use, or designed for use in ingesting, inhaling, or
otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human
body, such as:
a.
Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls.
b.
Water pipes.
c.
d.
e.
f.
g.
Chamber pipes.
h.
Carburetor pipes.
i.
Electric pipes.
j.
Air-driven pipes.
k.
Chillums.
l.
Bongs.
m.
536
1.
2.
The proximity of the object, in time and space, to a direct violation of this act.
3.
4.
5.
6.
Instructions, oral or written, provided with the object concerning its use.
7.
Descriptive materials accompanying the object which explain or depict its use.
8.
9.
10.
Whether the owner, or anyone in control of the object, is a legitimate supplier of like
or related items to the community, such as a licensed distributor or dealer of tobacco
products.
11.
Direct or circumstantial evidence of the ratio of sales of the object or objects to the
total sales of the business enterprise.
12.
The existence and scope of legitimate uses for the object in the community.
13.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
537
CATEGORY TWO
FLA. STAT.
INS. NO.
777.04(1)
5.1
None
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d
84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
538
2.
(Defendant) knew or reasonably should have known that the drug paraphernalia
would be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale or otherwise introduce into the human body
(specific substance alleged).
3.
When the delivery was made, (defendant) was 18 years old or over and (person
alleged) was under 18 years old.
Definitions.
Deliver. 893.02)(5), Fla. Stat.
Deliver or delivery means the actual, constructive, or attempted transfer from one
person to another of paraphernalia, whether or not there is an agency relationship.
Drug Paraphernalia. 893.145, Fla. Stat.
The term drug paraphernalia means all equipment, products, and materials of any kind
which are used, intended for use, or designed for use in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or
otherwise introducing into the human body a controlled substance in violation of this chapter. It
includes, but is not limited to:
1.
Kits used, intended for use, or designed for use in planting, propagating, cultivating,
growing, or harvesting of any species of plant which is a controlled substance or
from which a controlled substance can be derived.
2.
Kits used, intended for use, or designed for use in manufacturing, compounding,
converting, producing, processing, or preparing controlled substances.
3.
Isomerization devices used, intended for use, or designed for use in increasing the
potency of any species of plant which is a controlled substance.
4.
Testing equipment used, intended for use, or designed for use in identifying, or in
analyzing the strength, effectiveness, or purity of, controlled substances.
5.
Scales and balances used, intended for use, or designed for use in weighing or
measuring controlled substances.
6.
539
7.
Separation gins and sifters used, intended for use, or designed for use in removing
twigs and seeds from, or in otherwise cleaning or refining, cannabis.
8.
Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or
designed for use in compounding controlled substances.
9.
Capsules, balloons, envelopes, and other containers used, intended for use, or
designed for use in packaging small quantities of controlled substances.
10.
Containers and other objects used, intended for use, or designed for use in storing or
concealing controlled substances.
11.
Hypodermic syringes, needles, and other objects used, intended for use, or designed
for use in parenterally injecting controlled substances into the human body.
12.
Objects used, intended for use, or designed for use in ingesting, inhaling, or
otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human
body, such as:
a.
Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls.
b.
Water pipes.
c.
d.
e.
f.
g.
Chamber pipes.
h.
Carburetor pipes.
i.
Electric pipes.
j.
Air-driven pipes.
k.
Chillums.
l.
Bongs.
m.
540
1.
2.
The proximity of the object, in time and space, to a direct violation of this act.
3.
4.
5.
6.
Instructions, oral or written, provided with the object concerning its use.
7.
Descriptive materials accompanying the object which explain or depict its use.
8.
9.
10.
Whether the owner, or anyone in control of the object, is a legitimate supplier of like
or related items to the community, such as a licensed distributor or dealer of tobacco
products.
11.
Direct or circumstantial evidence of the ratio of sales of the object or objects to the
total sales of the business enterprise.
12.
The existence and scope of legitimate uses for the object in the community.
13.
Knowledge of the illicit nature of the controlled substance. Give if applicable. 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an element of the offense of
(insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is
an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled substance if you find
that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the
controlled substance, and all of the elements of the charge have been proved, you should find
(defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit
nature of the controlled substance, you should find (defendant) not guilty.
541
542
(Defendant)
[introduced contraband into]
[knowingly possessed contraband in]
[gave contraband to an inmate in]
[received contraband from an inmate in]
[took contraband from]
[attempted to take or send contraband from]
a county detention facility.
2.
(Defendant) did not do so through regular channels as duly authorized by the Sheriff
or officer in charge of the facility.
The court now instructs you that for purposes of this offense, "contraband" means:
Select definition depending upon item alleged.
[any currency or coin]
[any article of food or clothing]
[any written or recorded communication]
[any intoxicating beverage or beverage which causes or may cause an
intoxicating effect]
[any narcotic, hypnotic, or excitative drug]
[any drug of any kind, including nasal inhalators]
[sleeping pill, barbiturate]
[any controlled substance. [(Item alleged)] is a controlled substance]
[any firearm]
[any instrumentality that may be or is intended to be used as a dangerous
weapon]
[any instrumentality that may be or is intended to be used as an aid in
attempting to escape].
Definitions 951.23(1)
"County detention facility" means a county jail, a county stockade, a county prison camp, a
county residential probation center, and any other place used by a county or county officer to detain
persons charged with or convicted of crimes, including the grounds thereof.
In event of municipal facility involved, see statute.
Definition. Give as applicable.
To "introduce" means to put inside or into.
See 25.2 for definition of "possession."
543
544
(Defendant)
[introduced contraband into]
[knowingly possessed contraband in]
[gave contraband to a juvenile offender in]
[took contraband from]
[attempted to take or send contraband from]
[sent contraband to]
a [juvenile detention facility] [juvenile commitment program].
2.
Definitions
"Introduce" means to put inside or into.
Possession
Possession may be actual or constructive.
Actual possession means:
a. The thing is in the hand of or on the person, or
b. The thing is in a container in the hand of or on the person, or
c. The thing is so close as to be within ready reach and is under the control of the
person.
Give if applicable.
Mere proximity to a thing is not sufficient to establish control over that thing when the thing
is not in a place over which the person has control.
Constructive possession means the thing is in a place over which the person has control, or
in which the person has concealed it.
Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996).
If a thing is in a place over which the person does not have control, in order to establish
constructive possession the State must prove the person's (1) control over the thing, (2) knowledge
that the thing was within the person's presence, and (3) knowledge of the illicit nature of the thing.
For purposes of this offense, "contraband" means:
[any unauthorized article of food or clothing]
545
INS. NO.
5.1
Comment
This instruction is based on the text of 985.4046, Fla.Stat. (1997). In Chicone v. State, 684
So.2d 736 (Fla. 1996), the court defined the elements of constructive possession that apply if the
defendant has no control over the place where the contraband was found.
This instruction was adopted in March 2000.
546
2.
3.
Definition.
To utter means to pass, present or publish.
Lesser Included Offenses
UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY, UTTERING OR
POSSESSION OF COUNTERFEIT-RESISTANT PRESCRIPTION BLANKS FOR
CONTROLLED
831.311
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Comment
The Department of Health is directed by section 893.065, Florida Statutes, to develop and adopt
by rule the form and content for a counterfeit-resistant prescription blank which may be used by
practitioners for the purpose of prescribing a controlled substance listed in Schedule II, Schedule III, or
Schedule IV.
This instruction was adopted in 2009.
547
RACKETEERING
26.1
26.2
26.3
26.4
26.5
26.6
26.7
26.8
548
549
(Defendant) with criminal intent received proceeds which were derived directly or
indirectly from such incidents.
4.
(Defendant) [used] [invested] some of these proceeds [or proceeds derived from the
investment or use thereof] either directly or indirectly [in acquiring some right, title,
equity or interest in real property] [in establishing or operating an enterprise].
550
(Defendant) with criminal intent received proceeds which were derived directly or
indirectly through the collection of an unlawful debt.
2.
(Defendant) [used] [invested] some of these proceeds [or proceeds derived from the
investment or use thereof] either directly or indirectly [in acquiring some right, title,
equity, or interest in real property] [in establishing or operating an enterprise].
551
(Defendant) engaged in at least two of the following incidents. Read incident alleged
in information.
552
2.
553
2.
Definitions
895.02(2), Fla.Stat.
"Unlawful debt" means any money or other thing of value constituting principal or interest
of a debt that is legally unenforceable in Florida in whole or in part because the debt was incurred
or contracted in violation of the following law: (recite applicable section and define crime).
An "enterprise" is an ongoing organization, formal or informal, that both functions as a
continuing unit and has a common purpose of engaging in a course of conduct.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1989 and amended in 2003. The definition of the term
"enterprise" in this instruction is from the supreme court's opinion in Gross v. State, 765 So.2d 39 (Fla.
2000). As to the issue of whether an individual can be an enterprise, see State v. Nishi, 521 So.2d 252
(Fla. 3d DCA 1988), and State v. Bowen, 413 So.2d 798 (Fla. 1st DCA 1983).
554
2.
3.
Of those incidents in which (defendant) was engaged at least two of them had the
same or similar [intents] [results] [accomplices] [victims] [methods of commission]
or were interrelated by distinguishing characteristics and were not isolated
incidents.
555
2.
The defendant knowingly and willfully became a member of such conspiracy; and
3.
At the time the defendant joined such conspiracy, [he] [she] did so with the specific
intent either to personally engage in at least two incidents of racketeering, as alleged
in the Information, or [he] [she] specifically intended to otherwise participate in the
affairs of the "enterprise" with the knowledge and intent that other members of the
conspiracy would engage in at least two incidents of racketeering, as alleged in the
Information, as part of a "pattern of racketeering activity."
A person may become a member of a conspiracy without full knowledge of all of the details
of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a
defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins
in that plan on one occasion, that is sufficient to convict [him] [her] for conspiracy, even though [he]
[she] did not participate before and even though [he] [she] played only a minor part.
Of course, mere presence at the scene of a transaction or event or the mere fact that certain
persons may have associated with each other and may have assembled together and discussed
common aims and interests does not necessarily establish proof of the existence of a conspiracy.
Also, a person who has no knowledge of a conspiracy but who happens to act in a way which
advances some purpose of a conspiracy does not thereby become a conspirator.
Defense. Give if applicable. 777.04(5)(c), Fla.Stat.
It is a defense to the charge of conspiracy to engage in a pattern of racketeering activity that
(defendant), after knowingly entering into such a conspiracy with one or more persons, thereafter
persuaded such persons not to engage in such activity or otherwise prevented commission of the
offense. In this regard you are instructed that a mere endeavor to dissuade one from engaging in
such activity is insufficient.
556
557
ESCAPE
27.1
Escape
944.40, Fla.Stat.
558
27.1 ESCAPE
944.40, Fla. Stat.
To prove the crime of Escape, the State must prove the following three elements beyond a
reasonable doubt:
Give 1a or 1b as applicable.
1.
(Defendant) was
a.
b.
3.
a.
b.
c.
(Defendant) escaped or attempted to escape by (read overt act from charge), intending
to avoid lawful confinement.
Give if requested and applicable. See Kearse v. State, 662 So. 2d 677 (Fla. 1995) and Applewhite
v. State, 874 So. 2d 1276 (Fla. 5th DCA 2004).
Definitions.
Transportation to a place of confinement begins at the time an individual is placed under
arrest.
An arrest takes place when the arresting officer intends to arrest;
the arresting officer actually or constructively seizes the person to be
arrested; the officers intent to arrest is communicated by the arresting
officer to the person to be arrested; and the person to be arrested
understands that communication. An arrest does not require that the
law enforcement officer complete the act of acquiring total physical control
over the person to be arrested.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 1989 and 2007.
559
TRANSPORTATION OFFENSES
28.1
560
28.14
28.15
28.16
28.17
561
2.
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you must also determine
whether the State has proven beyond a reasonable doubt whether:
a.
b.
562
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
1.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you
shall presume that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired; but this presumption
may be overcome by other evidence demonstrating that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired.
2.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but
less than .08, that fact does not give rise to any presumption that the defendant was
or was not under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. In such cases, you may consider that evidence along
with other evidence in determining whether the defendant was under the influence
of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that
evidence would be sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
INS. NO.
5.1
Comment
A misdemeanor instruction was adopted in 1981 as part of Standard Jury Instructions In
Misdemeanor Cases. In 1992, a similar instruction was adopted for Florida Standard Jury Instructions In
Criminal Cases. That instruction was amended in 1995 and 1998; both instructions were merged into a
revised instruction in 2000, which was amended in 2009.
563
2.
had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100
milliliters of blood] [210 liters of breath].
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing [Property Damage]
[Injury], you must also determine whether the State has proven beyond a reasonable doubt
whether:
a.
b.
the defendant was accompanied in the vehicle by a person under the age of
18 years at the time of the driving under the influence.
564
(
Fla. Stat.
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
1.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you
shall presume that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired; but this presumption
may be overcome by other evidence demonstrating that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired.
2.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but
less than .08, that fact does not give rise to any presumption that the defendant was
or was not under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. In such cases, you may consider that evidence along
with other evidence in determining whether the defendant was under the influence
of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that
evidence would be sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
565
Comment
This instruction was adopted in 2009, In re Standard Jury Instructions in Criminal Cases-Report
No. 2008-08, 6 So. 3d 574 (Fla. 2009), and amended in 2009.
566
2.
had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100
milliliters of blood] [210 liters of breath].
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you must also determine
whether the State has proven beyond a reasonable doubt whether:
a.
b.
the defendant was accompanied in the vehicle by a person under the age of
18 years at the time of the driving under the influence.
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
567
1.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you
shall presume that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired; but this presumption
may be overcome by other evidence demonstrating that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired.
2.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but
less than .08, that fact does not give rise to any presumption that the defendant was
or was not under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. In such cases, you may consider that evidence
along with other evidence in determining whether the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired.
3.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that
evidence would be sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
b.
568
569
2.
had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100
milliliters of blood] [210 liters of breath].
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing Serious Bodily
Injury, you must also determine whether the State has proven beyond a reasonable doubt whether:
a.
b.
the defendant was accompanied in the vehicle by a person under the age of
18 years at the time of the driving under the influence.
570
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but
less than .08, that fact does not give rise to any presumption that the defendant was
or was not under the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. In such cases, you may consider that evidence along
with other evidence in determining whether the defendant was under the influence
of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
3.
If you find from the evidence that while driving or in actual physical control of a
motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that
evidence would be sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her] normal faculties were
impaired. But this evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
571
316.193(3)(a)(b)(c)1
Comment
This instruction was adopted in 1992 and amended in 1998 and 2009.
572
28.1(a)
(Defendant) was the driver of a vehicle involved in a crash resulting in [injury to]
[death of]any person.
2.
(Defendant) knew or should have known that [he] [she] was involved in a
crash.
If the State proves that the defendant willfully failed to give any part of the identifying
information or willfully failed to give reasonable assistance, the State satisfies this element of the
offense.
Definitions.
Identifying information means the name, address, vehicle registration number, and, if
available and requested, the exhibition of the defendants license or permit to drive.
Reasonable assistance includes carrying or making arrangements to carry the injured
person to a physician or hospital for medical treatment.
Willfully means intentionally and purposely.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1995 [665 So. 2d 212] and amended in 2008 [SC07-1851,
January 10, 2008].
573
2.
[He] [She] did so with a willful or wanton disregard for the safety of persons or
property.
Definitions
"Willful" means intentionally, knowingly and purposely.
"Wanton" means with a conscious and intentional indifference to consequences and
with knowledge that damage is likely to be done to persons or property.
Optional Definitions. 316.003(75), Fla.Stat.
A "vehicle" is any device in, upon, or by which any person or property is, or may be,
transported or drawn upon a highway, except bicycles or "mopeds" or devices used exclusively
upon stationary rails or tracks.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
574
b.
c.
d.
[a race] [a drag race or acceleration contest] [a speed competition or contest] [a test of physical
endurance] [an exhibition of speed] [an attempt to make a speed record] on a [highway] [road]
[parking lot].
Definitions.
Drag race means the operation of two or more motor vehicles from a point side by side at
accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or
more motor vehicles to the same point, for the purpose of comparing the relative speeds or power of
acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.
Motor vehicle means any self-propelled vehicle not operated upon rails or guideway,
including a motorcycle but not including any bicycle, motorized scooter, electric personal assistive
mobility device, or moped.
Race means a competition involving the use of one or more motor vehicles in an attempt to
outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to
arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the
physical stamina or endurance of drivers over long distance driving routes.
Roadway means that portion of a highway improved, designed, or ordinarily used for
vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more
separate roadways, the term roadway as used herein refers to any such roadway separately, but not
to all such roadways collectively.
Street or highway means
(a) The entire width between the boundary lines of every way or place of whatever nature
when any part thereof is open to the use of the public for purposes of vehicular traffic;
(b) The entire width between the boundary lines of any privately owned way or place used
for vehicular travel by the owner and those having express or implied permission from the owner,
but not by other persons, or any limited access road owned or controlled by a special district,
575
576
2.
A duly authorized law enforcement officer ordered the defendant to stop or remain
stopped.
Give 3a or 3b as applicable.
3.
(Defendant), knowing [he] [she] had been ordered to stop by a duly authorized law
enforcement officer,
a.
willfully refused or failed to stop the vehicle in compliance with the order
b.
Definitions.
Operator means any person who is in actual physical control of a motor vehicle upon the
highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].
Street or highway means the entire width between boundary lines of every way or place
of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.
Vehicle means every device, in, upon, or by which any person or property is or may be
transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or
tracks.
Willfully means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER 316.1935(1)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Disobedience to Police or
Fire Department Officials
316.072(3)
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d 464 (Fla. 2d DCA
2010).
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081]
and 2011.
577
2.
(Defendant), knowing [he] [she] had been directed to stop by a duly authorized law
enforcement officer, willfully fled in a vehicle in an attempt to elude a law
enforcement officer.
3.
The law enforcement officer was in an authorized law enforcement patrol vehicle
with agency insignia and other jurisdictional markings prominently displayed on
the vehicle and with siren and lights activated.
Definitions.
Operator means any person who is in actual physical control of a motor vehicle upon the
highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].
Street or highway means the entire width between boundary lines of every way or place
of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.
Vehicle means every device, in, upon, or by which any person or property is or may be
transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or
tracks.
Willfully means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER 316.1935(2)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Fleeing to elude
316.1935(1)
28.6
Disobedience to Police or
Fire Department Officials
316.072(3)
Comments
For the category two lesser included offense, see Koch v. State, 39 So. 3d 464 (Fla. 2d DCA
2010).
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081]
and 2011.
578
3.
The law enforcement officer was in an authorized law enforcement patrol vehicle
with agency insignia and other jurisdictional markings prominently displayed on
the vehicle and with siren and lights activated.
4.
During the course of the fleeing or the attempt to elude, (defendant) drove at high
speed or in any manner demonstrating a wanton disregard for the safety of persons
or property.
Definitions.
Operator means any person who is in actual physical control of a motor vehicle upon the
highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].
Street or highway means the entire width between boundary lines of every way or place
of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.
Vehicle means every device, in, upon, or by which any person or property is or may be
transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or
tracks.
Willfully means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
316.1935 (3)(a)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Fleeing to elude
316.1935(2)
Fleeing to elude
316.1935(1)
Reckless driving
316.192
Disobedience to Police or Fire
Department Officials
316.072(3)
INS. NO.
28.7
28.6
28.5
Comments
For the category two lesser included offense of Disobedience to Police, see Koch v. State, 39 So.
3d 464 (Fla. 2d DCA 2010).
579
This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2008 [976 So. 2d 1081]
and 2011.
580
2.
(Defendant), knowing [he] [she] had been directed to stop by a duly authorized law
enforcement officer, willfully fled in a vehicle in an attempt to elude a law
enforcement officer.
3.
The law enforcement officer was in an authorized law enforcement patrol vehicle
with agency insignia and other jurisdictional markings prominently displayed on
the vehicle and with siren and lights activated.
4.
During the course of the fleeing or the attempt to elude, (defendant) drove at high
speed or in any manner demonstrating a wanton disregard for the safety of persons
or property.
5.
Definitions.
Operator means any person who is in actual physical control of a motor vehicle upon the
highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].
Street or highway means the entire width between boundary lines of every way or place
of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.
Vehicle means every device, in, upon, or by which any person or property is or may be
transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or
tracks.
Willfully means intentionally, knowingly, and purposely.
Lesser Included Offenses
FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER 316.1935(3)(b)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
Fleeing to elude
316.1935(3)(a)
Fleeing to elude
316.1935(2)
Fleeing to elude
316.1935(1)
Reckless driving
316.192
Disobedience to Police or Fire
Department Officials
316.072(3)
581
Comments
For the category two lesser included offense of Disobedience to Police, see Koch v. State, 39 So.
3d 464 (Fla. 2d DCA 2010).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011.
582
(Defendant) was the driver of a vehicle involved in a crash resulting in [injury to]
[the death of] any person.
2.
(Defendant) knew or should have known that [he] [she] was involved in a crash.
willfully failed to stop at the scene of the crash or as close to the crash as
possible and remain there until [he] [she] had given identifying
information to the [injured person] [driver] [occupant][person attending
the vehicle or other damaged property] and to any police officer
investigating the crash.
b.
5.
6.
7.
As a result of (defendant) fleeing or eluding, [he] [she] caused [serious bodily injury
to] [the death of] (name of victim).
583
584
(Defendant) was the driver of a vehicle involved in a crash resulting only in damage
[to a vehicle] [to property other than a vehicle] which was driven or attended by a
person.
2.
(Defendant) knew or should have known that [he] [she] was involved in a crash.
3.
(Defendant) knew or should have known of the damage to [the vehicle] [the attended
property].
4.
(Defendant) willfully failed to stop at the scene of the crash or as close to the crash as
possible and remain there until [he] [she] had given identifying information to the
[driver] [person attending the damaged property] and to any police officer
investigating the crash.
5.
6.
(Defendant), knowing [he] [she] had been ordered to stop by a law enforcement
officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the
order to stop] [and after having stopped in knowing compliance with the order to
stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].
7.
As a result of (defendant) fleeing or eluding, [he] she] caused [serious bodily injury
to] [the death of] (name of victim).
585
586
(Defendant) was the driver of a vehicle involved in a crash resulting in [injury to]
[the death of] any person.
2.
(Defendant) knew or should have known that [he] [she] was involved in a crash.
willfully failed to stop at the scene of the crash or as close to the crash as
possible and remain there until [he] [she] had given identifying
information to the [injured person] [driver] [occupant] [person attending
the vehicle or other damaged property] and to any police officer
investigating the crash.
b.
5.
6.
7.
As a result of (defendant) fleeing or eluding, [he] [she] caused [an injury to] [damage
to the property of] (name of victim).
587
Definitions.
Willfully means intentionally, knowingly, and purposely.
Identifying information means the name, address, vehicle registration number, and, if
available and requested, the exhibition of the defendants license or permit to drive.
Reasonable assistance includes carrying or making arrangement to carry the injured
person to a physician or hospital for medical treatment.
Lesser Included Offenses
AGGRAVATED FLEEING OR ELUDING
(Leaving a Crash Involving Injury or Death and then Causing Injury or Property Damage to
Another)
316.1935(4)(a) and 316.027
CATEGORY ONE
CATEGORY TWO
FLA.STAT.
INS. NO.
Fleeing to Elude LEO
316.1935(1)
28.6
Leaving Scene of Accident
316.027(1)(b)
28.4
Involving Death
Leaving Scene of Accident
316.027(1)(a)
28.4
Involving Injury
Fleeing to Elude LEO
316.1935(3)(b)
28.81
Fleeing to Elude LEO
316.1935(3)(a)
28.8
Fleeing to Elude LEO
316.1935(2)
28.7
Reckless Driving
316.192
28.5
Disobedience to Police or Fire
Department Officials
316.072(3)
Comments
For the category two lesser included offense of Disobedience to Police, see Koch v. State, 39 So.
3d 464 (Fla. 2d DCA 2010).
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2011 .
588
(Defendant) was the driver of a vehicle involved in a crash resulting only in damage
[to a vehicle] [to property other than a vehicle] which was driven or attended by a
person.
2.
(Defendant) knew or should have known that [he] [she] was involved in a crash.
3.
(Defendant) knew or should have known of the damage to [the vehicle] [the attended
property].
4.
(Defendant) willfully failed to stop at the scene of the crash or as close to the crash as
possible and remain there until [he] [she] had given identifying information to the
[driver][person attending the damaged property] and to any police officer
investigating the crash.
5.
6.
(Defendant), knowing [he] [she] had been ordered to stop by a law enforcement
officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the
order to stop] [and after having stopped in knowing compliance with the order to
stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].
7.
As a result of (defendant) fleeing or eluding, [he] [she] caused [injury to] [damage to
the property of] (name of victim).
589
590
2.
At the time, [he] [she] did not have a valid drivers license recognized by the
Department of Highway Safety and Motor Vehicles of the State of Florida.
Definitions.
322.01(15), Fla. Stat.
Drive means to operate or be in actual physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic.
322.01(26), Fla. Stat.
Motor vehicle means any vehicle which is self-propelled, including a moped, but not
any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.
Valid drivers license means a drivers license recognized by the Department of Highway
Safety and Motor Vehicles which has not expired, been suspended, revoked or canceled.
322.01)(38), Fla. Stat.
Street or Highway means the entire width between the boundary lines of every way or
place if any part thereof is open to the use of the public for purposes of vehicular traffic.
Optional Definitions.
Expired means the license was not renewed on or before the expiration date.
322.01(39), Fla. Stat.
Suspended means the privilege to drive a motor vehicle has been temporarily withdrawn.
322.01(35), Fla. Stat.
Revoked means the privilege to drive a motor vehicle has been terminated.
322.0 (5), Fla. Stat.
Canceled means that a license has been declared void and terminated.
Actual physical control of a motor vehicle means the defendant must be physically in or
on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is
actually operating the vehicle at the time.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981, and amended in 2007.
591
2.
At the time, the defendant did not have a valid commercial drivers license issued by
the Department of Highway Safety and Motor Vehicles of the State of Florida.
Definitions.
322.01(15), Fla. Stat.
Drive means to operate or be in actual physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic.
322.01(26), Fla. Stat.
Motor vehicle means any vehicle which is self-propelled, including a moped, but not
any vehicle moved solely by human power, motorized wheelchairs or motorized bicycles.
322.01(8), Fla. Stat.
Commercial motor vehicle means any motor vehicle used on the streets or highways,
which:
a.
b.
c.
592
Actual physical control of a vehicle means the defendant must be physically in or on the
vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually
operating the vehicle at the time.
Lesser Included Offenses
NO VALID COMMERCIAL DRIVERS LICENSE 322.03
CATEGORY ONE
CATEGORY TWO
593
FLA. STAT.
INS. NO.
322.03
28.9
2.
The license was restricted by the Department of Highway Safety and Motor Vehicles
of this state.
3.
4.
Definitions
322.01(26), Fla.Stat.
"Motor vehicle" means any self-propelled vehicle, including a motor vehicle combination,
not operated upon rails or guideway, excluding vehicles moved solely
by human power,
motorized wheelchairs, and motorized bicycles as defined in 316.003, Fla.Stat.
"Restricted operator's or chauffeur's license" means a license issued by the Department of
Highway Safety and Motor Vehicles which is restricted in any
manner.
322.01(38), Fla.Stat.
"Highway" means the entire width between the boundary lines of a way or place if any
part of that way or place is open to public use for purposes of vehicular traffic.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
594
2.
At the time, [[his] [her]] [[license] [driving privilege]] was [suspended] [revoked]
[canceled].
3.
At the time (defendant) drove a motor vehicle upon a highway in this state,
(defendant) knew that [[his] [her]] [[license] [driving privilege]] was [suspended]
[revoked] [canceled].
595
you are permitted to assume that (defendant) knew [his] [her] license was [suspended] [revoked]
[canceled]. This presumption, however, is rebuttable, and you may accept or reject the
presumption depending upon the circumstances of the crime and the facts presented at trial.
Definitions.
322.01 (15), Fla. Stat.
Drive means to operate or be in actual physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic.
322.01(26), Fla. Stat.
Motor vehicle means any vehicle which is self-propelled, including a moped, but not
any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.
322.01(38), Fla. Stat.
Street or Highway means the entire width between the boundary lines of every way or
place if any part thereof is open to the use of the public for purposes of vehicular traffic.
322.251, Fla. Stat.
Notice means personal delivery or deposit in the United States mail, first class, postage
prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department
of Highway Safety and Motor Vehicles. Mailing by the department shall constitute notification.
Optional Definitions.
322.01(39), Fla. Stat.
Suspended means the privilege to drive a motor vehicle has been temporarily withdrawn.
322.01(35), Fla. Stat.
Revoked means the privilege to drive a motor vehicle has been terminated.
322.01(5), Fla. Stat.
Canceled means that a license has been declared void and terminated.
Actual physical control of a vehicle means the defendant must be physically in or on the
vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually
operating the vehicle at the time.
322.251(1), Fla. Stat.
Failure by the defendant to receive the mailed order shall not affect or stay the effective date or
term of the [cancellation], [suspension], [revocation] of the defendants driving privilege.
Lesser Included Offenses
SUSPENDED, REVOKED OR CANCELED LICENSE 322.34
CATEGORY ONE
CATEGORY TWO
FLA. STAT
INS. NO.
No Valid Drivers License
322.03
28.9
Comment
This instruction was adopted in 1981, and amended in 2007 to reflect Laws of Florida 97300, Section 40, effective October 1, 1997.
596
2.
Definitions.
322.01 (15), Fla. Stat.
Drive means to operate or be in actual physical control of a motor vehicle in any place
open to the general public for purposes of vehicular traffic.
322.01(26), Fla. Stat.
Motor vehicle means any vehicle which is self-propelled, including a moped, but not
any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.
322.01(38), Fla. Stat.
Street or Highway means the entire width between the boundary lines of every way or
place if any part thereof is open to the use of the public for purposes of vehicular traffic.
Habitual traffic offender is any person whose record, as maintained by the Department of
Highway Safety and Motor Vehicles, shows that [he][she] has been designated a Habitual Traffic
Offender, resulting in [his][her] privilege to drive a motor vehicle having been revoked.
322.01(35), Fla. Stat.
Revoked means the privilege to drive a motor vehicle has been terminated.
Optional Definition.
Actual physical control of a vehicle means the defendant must be physically in or on the
vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually
operating the vehicle at the time.
Lesser Included Offenses
DRIVING WHILE LICENSE REVOKED AS A HABITUAL TRAFFIC OFFENDER
322.34(5)
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
No Valid Drivers License
322.03
Comment
597
28.9
b.
Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant
appeared for treatment at a hospital, clinic, or other medical facility and the administration of a breath
or urine test was impractical or impossible.
2.
a.
The law enforcement officer arrested (defendant) for Driving
under the Influence.
b.
3.
4.
5.
6.
(Defendant's) driving privilege had been previously suspended for a prior refusal to
submit to a lawful test of [his] [her] [breath] [blood] [urine].
Inference.
You are permitted to conclude that (defendant's) driving privilege had been previously
suspended for a prior refusal to submit to a lawful test of [his][her][[breath][blood][urine] if a
record from the Department of Highway Safety and Motor Vehicles shows such a suspension.
Definitions.
Motor vehicle means any self-propelled vehicle not operated upon rails or guideway, but
not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.
598
Probable cause exists where the totality of circumstances, from the perspective of the law
enforcement officer's knowledge, training and experience, gave the officer reasonable grounds and
a fair probability to believe that a crime had been committed.
Give if applicable.
Actual physical control means the defendant must be physically in or on the motor
vehicle and have the capability to operate the motor vehicle, regardless of whether [he][she] is
actually operating the vehicle at the time.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007 [965 So. 2d 811].
599
600
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level of .05 or less, you shall presume that the defendant was
not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the defendant was
under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level in excess of .05 but less than .08, that fact does not give
rise to any presumption that the defendant was or was not under the
influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired. In such cases, you may consider that
evidence along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to the
extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level of .08 or more, that evidence would be sufficient by
itself to establish that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired. But this evidence may be contradicted or rebutted by
other evidence demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired.
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence if the vessel was inoperable at
the time of the alleged offense, unless the defendant was controlling or steering the vessel while it
was being towed by another vessel upon the waters of the state. However, it is not a defense if the
defendant was boating under the influence before the vessel became inoperable.
Lesser Included Offenses
CATEGORY ONE
None
777.04(1)
Comment
601
INS. NO.
5.1
b.
the defendant was accompanied in the vessel by a person under the
age of 18 years at the time of the boating under the influence.
Definitions. Give as applicable.
Vessel means a boat that is subject to a license tax for operation and includes every
description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge
distances, operate a vessel, make judgments, act in emergencies and, in general, to normally
perform the many mental and physical acts of our daily lives.
Operate means to be in charge of or in command of or in actual physical control of a
vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessels
navigation or safety while the vessel is underway upon the waters of this state, or to control or steer
a vessel being towed by another vessel upon the waters of the state.
Alcoholic beverages are considered to be substances of any kind and description which
contain alcohol.
602
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level of .05 or less, you shall presume that the defendant was
not under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired; but this presumption may be
overcome by other evidence demonstrating that the defendant was
under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level in excess of .05 but less than .08, that fact does not give
rise to any presumption that the defendant was or was not under the
influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired. In such cases, you may consider that
evidence along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to the
extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level of .08 or more, that evidence would be sufficient by
itself to establish that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired. But this evidence may be contradicted or rebutted
by other evidence demonstrating that the defendant was not under
the influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired.
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence Causing [Property Damage]
[Injury] if the vessel was inoperable at the time of the alleged offense, unless the defendant was
controlling or steering the vessel while it was being towed by another vessel upon the waters of the
state. However, it is not a defense if the defendant was boating under the influence before the vessel
became inoperable.
Lesser Included Offenses
BOATING UNDER THE INFLUENCE CAUSING PROPERTY DAMAGE OR INJURY 327.35(3)(a)(b)(c)1
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
Boating under the Influence
327.35(1)
28.14
Attempt
777.04(1)
5.1
Comment
603
604
b.
the defendant was accompanied in the vessel by a person under the age of 18
years at the time of the boating under the influence.
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.
605
1.
If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .
05 or less, you shall presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but
this presumption may be overcome by other evidence demonstrating that the
defendant was under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.
2.
If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]-alcohol level in
excess of .05 but less than .08, that fact does not give rise to any presumption that
the defendant was or was not under the influence of alcoholic beverages to the
extent that [his] [her] normal faculties were impaired. In such cases, you may
consider that evidence along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to the extent that [his]
[her] normal faculties were impaired.
3.
If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]-alcohol level of .
08 or more, that evidence would be sufficient by itself to establish that the defendant
was under the influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired. But this evidence may be contradicted or rebutted by other
evidence demonstrating that the defendant was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were impaired.
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence if the vessel was inoperable at
the time of the alleged offense, unless the defendant was controlling or steering the vessel while it
was being towed by another vessel upon the waters of the state. However, it is not a defense if the
defendant was boating under the influence before the vessel became inoperable.
Give as applicable if the jury finds the defendant is guilty of Boating Under the Influence. Note:
A Driving Under the Influence conviction, whether in Florida or out-of-state, counts as a prior
conviction. See 327.35(6)(i), Fla. Stat. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
Since you have found the defendant guilty of Boating under the Influence, you must now
determine whether the State has proven beyond a reasonable doubt whether:
a.
b.
606
CATEGORY ONE
Boating under the
influence
777.04(1)
327.35(3)(a)(b)(c)1
5.1
28.15
Comment
This instruction should be used for Felony Boating under the Influence based on prior
convictions. For Felony Boating under the Influence based on prior convictions, it is error to inform the
jury of prior Boating or Driving under the Influence convictions before the verdict is rendered. Therefore,
if the information or indictment contains an allegation of prior Boating or Driving under the Influence
convictions, do not read that allegation and do not send the information or indictment into the jury room.
If the defendant is found guilty of Boating under the Influence, the historical fact of prior convictions
shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d
691 (Fla. 2000).
This instruction was adopted in 2009 and amended in 2012.
607
b.
608
Serious bodily injury means a physical condition that creates a substantial risk of death,
serious personal disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.
When appropriate, give one or more of the following instructions on the presumptions of
impairment established by 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.
1. If you find from the evidence that while operating the vessel, the
defendant had a [blood] [breath]-alcohol level of .05 or less, you shall
presume that the defendant was not under the influence of alcoholic
beverages to the extent that [his] [her] normal faculties were
impaired; but this presumption may be overcome by other evidence
demonstrating that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired.
2. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level in excess of .05 but less than .08, that fact does not give
rise to any presumption that the defendant was or was not under the
influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired. In such cases, you may consider that
evidence along with other evidence in determining whether the
defendant was under the influence of alcoholic beverages to the
extent that [his] [her] normal faculties were impaired.
3. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]alcohol level of .08 or more, that evidence would be sufficient by
itself to establish that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired. But this evidence may be contradicted or rebutted by
other evidence demonstrating that the defendant was not under the
influence of alcoholic beverages to the extent that [his] [her] normal
faculties were impaired.
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence Causing Serious Bodily Injury if
the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or
steering the vessel while it was being towed by another vessel upon the waters of the state.
However, it is not a defense if the defendant was boating under the influence before the vessel
became inoperable.
609
CATEGORY ONE
Boating under the
influence
327.35(3)(a)(b)(c)1
Comment
This instruction was adopted in 2009 and amended in 2012.
610
28.15
MISCELLANEOUS CRIMES
29.1
Disorderly Intoxication
856.011, Fla.Stat.
29.2
Possession of Alcohol by a Minor
[ 562.11 Reserved]
29.3
Sale of Alcohol to a Minor
[ 562.11 Reserved]
29.4
Sale of Alcohol Without a License
[ 562.11 Reserved]
29.5
Disorderly Conduct
[ 877.03 Reserved]
29.6
Affray
[ 870.01 Reserved]
29.7
Loitering or Prowling
856.021, Fla.Stat.
29.8
Building a Bonfire
[ 823.02 Reserved]
29.9
Tattooing
[ 877.04 Reserved]
29.10 Abandoned and Derelict Vessels
[ 823.11 Reserved]
29.11 Vending Machine Theft
877.08(3), Fla.Stat.
29.12 Vending Machine Tampering or Damaging
877.08(2), Fla.Stat.
29.13 Animal Cruelty [Felony]
828.12(2), Fla. Stat.
29.13(a) Animal Cruelty (Misdemeanaor)
828.12(1), Fla. Stat.
29.13(b) Animal Fighting or Baiting
828.122, Fla. Stat.
29.14 Taking Deer/Wild Turkey with Gun and Light
372.99(1), Fla.Stat.
29.15 Disturbing a School, Religious or Lawful Assembly
871.01(1), Fla. Stat.
29.16 Disturbing a Military Funeral
871.01(2), Fla. Stat.
611
b. [1.
(Defendant) was intoxicated or drank any alcoholic beverage in a
place] [in or upon a public conveyance] and
2.
[public
Definition
"Intoxication" means more than merely being under the influence of an alcoholic beverage.
Intoxication means that the defendant must have been so affected from the drinking of an alcoholic
beverage as to have lost or been deprived of the normal control of either [his] [her] body or [his]
[her] mental faculties, or both. Intoxication is synonymous with "drunk.
Optional Definition
A "public place" is a place where the public has a right to be and to go.
The defendant's admission that [he] [she] drank an alcoholic beverage is not sufficient by
itself to prove beyond a reasonable doubt that [he] [she] was under the influence of an alcoholic
beverage but this admission may be taken into consideration along with other evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
612
613
614
615
616
29.6 AFFRAY
[ 870.01 RESERVED]
617
2.
Such loitering and prowling was under circumstances that warranted justifiable and
reasonable alarm or immediate concern for safety of persons or property in the
vicinity.
Circumstances
Among the circumstances which may be considered in determining whether such alarm or
immediate concern is warranted is the fact that the person:
1.
2.
3.
618
619
29.9 TATTOOING
[ 877.04 RESERVED]
620
621
2.
3.
The coin-operated vending machine or parking meter was the property of (name of
owner).
Definition
A "coin-operated vending machine" or "parking meter" is any machine, contrivance, or
device that is adapted for use in such a way that, as a result of the insertion of any money, coin or
other object, the machine, contrivance, parking meter, or device operates or may be operated and
the user becomes entitled to receive any food, drink, telephone or telegraph service, insurance
protection, parking privilege or any other personal property, service, protection, right, or privilege
of any kind or nature whatsoever.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
622
[a.
(Defendant) maliciously or mischievously [molested] [opened]
[broke] [injured] [damaged] a [coin-operated vending machine]
[parking meter].]
[b. (Defendant) maliciously or mischievously [inserted any part of [his] [her] body] [any
instrument] into a [coin-operated vending machine] [parking meter].]
2.
Definition
A "coin-operated vending machine" or "parking meter" is any machine, contrivance, or
device that is adapted for use in such a way that, as the result of the insertion of any money, coin or
other object, the machine, contrivance, parking meter, or device operates or may be operated and
the user becomes entitled to receive any food, drink, telephone or telegraph service, insurance
protection, parking privilege or any other personal property, service, protection, right, or privilege
of any kind or nature.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981.
623
624
c.
625
3.
626
627
Manual possession
2.
Physical possession
3.
Control or custody
4.
5.
379.404(2), Fla.Stat.
If you find from the evidence that the defendant displayed or used a light in a place where
deer might be found and in a manner capable of disclosing the presence of deer, and that the
defendant possessed a firearm or other weapon customarily used for the taking of deer, between one
hour after sunset and one hour before sunrise, then this would be sufficient by itself to establish
that the defendant was taking or attempting to take deer by use of a gun and light. However, such
evidence may be contradicted or rebutted by other evidence.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
628
Comment
This instruction was adopted in March 2000 and amended in 2012.
629
a school assembly.
b.
c.
Definition.
Willfully means knowingly, intentionally, and purposely.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
To commit an offense under 871.01 a person must have deliberately acted to create a
disturbance. That is, he must act with the intention that his behavior impedes the successful functioning
of the assembly in which he has intervened, or with reckless disregard of the effect of his behavior. The
acts complained of must be such that a reasonable person would expect them to be disruptive. Finally, the
acts must, in fact, significantly disturb the assembly. These elements are inherent in the statute as drafted.
See S.H.B. v State, 355 So.2d 1176, 1178 (Fla. 1978).
This instruction was adopted in 2008.
630
2.
The deceased individual was a member of the armed forces of the United States.
3.
Definition.
Willfully means knowingly, intentionally and purposely.
A military funeral honors detail consists of at least two persons from the armed forces in
proper uniform, at least one of whom was from the deceased=s branch of the military, and the
funeral ceremony includes the playing of Taps, followed by the folding and presentation of the
United States flag to the family of the deceased.
Lesser Included Offenses
CATEGORY ONE
Disturbing a school,
religious or lawful assembly
INS. NO.
29.15
Comment
See Title 10 U.S.C. 1491 for further details.
To commit an offense under 871.02 a person must have deliberately acted to create a disturbance. That
is, he must act with the intention that his behavior impedes the successful functioning of the assembly in
which he has intervened, or with reckless disregard of the effect of his behavior. The acts complained of
must be such that a reasonable person would expect them to be disruptive. Finally, the acts must, in fact,
significantly disturb the assembly. These elements are inherent in the statute as drafted. See S.H.B. v
State, 355 So.2d 1176, 1178 (Fla. 1977).
This instruction was adopted in 2008.
631
632
TABLE OF CONTENTS
INTRODUCTION
WHAT IS A GRAND JURY?
TERM OF THE GRAND JURY
WHO ARE GRAND JURORS?
DISQUALIFICATION TO SERVE AS A GRAND OR PETIT JUROR
FREQUENTLY USED WORDS AND PHRASES
GRAND JURY AND PETIT JURY DISTINGUISHED
HISTORY OF THE GRAND JURY
THE GRAND JURY AS AN ACCUSING AND INVESTIGATIVE BODY
OFFICERS OF THE GRAND JURY
PROCEDURES
PROCEEDINGS OF THE GRAND JURY
DETERMINATION WHETHER TO RETURN AN INDICTMENT OR
A NO TRUE BILL
THE STATE ATTORNEY (OR THE STATEWIDE PROSECUTOR)
AS LEGAL ADVISOR TO THE GRAND JURY
SECRECY OF GRAND JURY PROCEEDINGS
PROTECTION AND IMMUNITY OF GRAND JURORS
ON BEING A GRAND JUROR SOME PRACTICAL SUGGESTIONS
CONCLUSION
633
INTRODUCTION
"Jury service is one of the highest duties of citizenship, for by it the
citizen participates in the administration of justice.."
Harlan Fisk Stone
Chief Justice
United States Supreme Court
You are one of those citizens who have been selected to perform this "highest duty of
citizenship."
In time of peace there is no higher duty a citizen can perform than that of jury service;
however, few citizens when called to serve have any understanding of the principles that control
the actions of the grand juror.
This handbook is intended only to give the juror a better understanding of the general
nature of his or her functions, together with some suggestions as how best to carry them out. The
court itself will be the final authority in its instructions to the grand jury. This handbook is not
intended in any manner whatever as a substitute for the instructions given by the presiding judge.
WHAT IS A GRAND JURY?
A grand jury is an investigating, reporting, and accusing agency of the circuit court (or of
the Florida Supreme Court in the case of the statewide grand jury). It consists of citizens of a
specified number who have been summoned and empaneled by a judge of the circuit court (or by
a judge appointed by the Florida Supreme Court, in the case of the statewide grand jury). The
grand jury is an agency and an arm of the circuit court (or the Florida Supreme Court in the case
of the statewide grand jury) and is uniquely independent.
The grand jury is answerable to no person or agency of government except the court that
empanels it and, even then, only to the extent that it may exceed its authority and privileges.
TERM OF THE GRAND JURY
At least two terms of court are held each year and once the grand jury is empaneled, it
will serve for the balance of the term of court. In exceptional cases, its term may be extended.
(The statewide grand jury's term is for a period of 12 months, but may be extended for up to 18
months.) The grand jury will not be in continuous session but will be called in from time to time
as necessary.
WHO ARE GRAND JURORS?
Grand jurors are United States citizens and legal residents of this state and their
respective counties who are at least 18 years of age and who possess a driver's license or
identification card issued by the Department of Highway Safety and Motor Vehicles, or who
execute an affidavit indicating a desire to serve as a juror.
All jurors are selected at random and their names are taken from lists prepared by the
clerk of the circuit court.
The process of selecting jurors is done in most counties by the county commissioners and
in some counties by a specially constituted jury commission. The process of selecting the
statewide grand jury is handled by the State Courts Administrator for the Florida Supreme Court.
634
When making up the jury list, the officers compiling it are required to select only citizens
they believe to be law-abiding, and of proven integrity, good character, sound judgment and
intelligence, and who are not mentally infirm.
DISQUALIFICATION TO SERVE AS A
GRAND OR PETIT JUROR
Any person who has been convicted of a felony or bribery, forgery, perjury, or larceny is
disqualified to sit as a juror, unless his or her civil rights have been restored.
A person under prosecution for any crime is disqualified.
Most government officials are disqualified to serve on a jury. An elected public official is
not eligible to be a grand juror.
FREQUENTLY USED WORDS AND PHRASES
Throughout this handbook and during your term as a grand juror certain terms will occur
frequently. Some of these are:
Capital Crime. A capital crime is any crime for which the maximum punishment is death.
Circuit Court. The State of Florida is divided into 20 judicial "circuits." Each circuit
covers one or more counties. The circuit court is the highest trial court in the circuit.
Defendant. A "defendant" is a person who has been accused of a crime and is defending
himself or herself in a court against the criminal charge. The words "defendant" and "accused" are
used interchangeably.
Felony. A "felony" is any crime which is punishable by imprisonment in a state
penitentiary for a term in excess of one year. A "misdemeanor" is any crime which is punishable
by imprisonment in a county correctional facility for a term of not more than one year.
Indictment; True Bill. A "true bill" is a charge brought by the grand jury accusing a
person of a crime. A true bill, when it is filed in court, then becomes an "indictment."
Judge. The judge presiding over the trial is often called or referred to as "the court."
No True Bill. A "no true bill" is a finding by the grand jury that on a given charge no
indictment should be filed.
Presentment. A "presentment" is a presentation to the court of a grand jury's report of its
actions and recommendations.
State Attorney. Each circuit in the State of Florida has a "state attorney" who, together
with assistants, prosecutes all crimes and offenses in the circuit and county courts in the circuit.
Some other states refer to this officer as a "district attorney" or "prosecuting attorney."
Statewide Prosecutor. The statewide prosecutor is appointed by the Attorney General of
the State of Florida to investigate and prosecute certain multi-circuit criminal activity.
GRAND JURY AND PETIT JURY DISTINGUISHED
There are two kind of juries: grand juries and petit juries.
The grand jury consists of not fewer than 15 nor more than 21 (or 18 for statewide grand
jury) members. A petit jury, depending upon the type of trial, consists of either 6 or 12 members.
The grand jury and the petit jury have entirely different purposes and functions. A petit
jury actually tries a case and renders a verdict of guilty or not guilty after hearing both sides. A
grand jury does not try a case on the issue of guilt or innocence. The grand jury rarely hears both
635
sides. Its function is simply to hear witnesses as to a charge of crime, by the State, and to
determine whether the person, or persons, so charged should be brought to trial. The grand jury
has been called both a sword and shield of justice a sword because it is a terror to criminals, a
shield because it is protection of the innocent against unjust prosecution.
The tremendous power of the grand jury obviously creates grave and solemn
responsibilities to see that these powers are not perverted or abused. A grand jury, being
possessed with these tremendous powers and unless motivated by the highest sense of justice,
might find indictments not warranted by the evidence and thus become a source of oppression to
the citizenry.
Conversely, a misguided grand jury might dismiss charges against those who should be
prosecuted. The importance of the grand jury's power is emphasized by the fact that it is one of
the most independent bodies known to the law.
HISTORY OF THE GRAND JURY
The grand jury originated more than seven centuries ago in England. It was recognized in
the Magna Charta granted by King John of England upon the demand of the people in 1215 A.D.
Its present form evolved in the period 1327 to 1377. Its origins can be traced back even further.
As early as 997 A.D., a Danish king, "Ethelred the Unready," charged an investigative body of his
reign that it should go about its duty by accusing no innocent person, and sheltering no guilty one.
This high principle is echoed in the oath that you took as a grand juror:
"You, as grand jurors for _____ County (or the statewide grand jury) do solemnly swear
(or affirm) that you will diligently inquire into all matters put in your charge and you will make
true presentments of your findings; unless ordered by a court, you will not disclose the nature or
substance of the deliberations of the grand jury, the nature or substance of any testimony or other
evidence, the vote of the grand jury, or the statements of the state attorney (or the statewide
prosecutor); you shall not make a presentment against a person because of envy, hatred, or
malice, and you shall not fail to make a presentment against a person because of love, fear, or
reward. So help you God."
The early colonists brought the grand jury system to this country from England. It has
been with us ever since. It is recognized in the Constitution of the United States and in the
Constitution of Florida.
(The Statewide Grand Jury was created in 1973 to "strengthen the grand jury system and
enhance the ability of the State to detect and eliminate organized criminal activity by improving
the evidence gathering process in matters which transpire or have significance in more than one
county." Section 905.32, Florida Statutes.)
THE GRAND JURY AS AN ACCUSING
AND INVESTIGATING BODY
Our constitution provides that no person shall be brought to trial for a capital crime
except upon indictment of a grand jury. This means that no one may be prosecuted for a capital
crime except by a vote of the grand jury. Except for capital crimes, the state attorney (or the
statewide prosecutor) may initiate all other criminal charges. The grand jury of course may indict
for any crime that the evidence justifies.
The wisdom of leaving to the state attorney (or the statewide prosecutor) the bringing of
charges as to crimes less than capital crimes and traffic violations is readily apparent. If the grand
jury was required to initiate the prosecution of less serious crimes through indictment, the grand
jury would be so overwhelmed with complaints that it could not perform its more important
duties.
636
Charges of crime may be brought to your attention in several ways: by the court; by the
state attorney (or the statewide prosecutor); from personal knowledge brought to your body by
any member of the grand jury; and, lastly, by private citizens who have a right to be heard by a
grand jury in formal session and with the grand jury's consent. The bulk of the grand jury's work
probably will be concerned with cases brought to its attention by the state attorney (or the
statewide prosecutor). In most instances a person being considered for indictment by the grand
jury will have been held preliminarily on a charge brought before a judge sitting as a committing
magistrate, who bound that person over for action by the grand jury. The accused will be either in
custody or on bail. Your action, therefore, should be reasonably prompt in either voting an
indictment as to the charge or returning a "no true bill."
The grand jury should consult with the state attorney (or the statewide prosecutor) or an
assistant state attorney (or the assistant statewide prosecutor) in advance of undertaking a formal
investigation on the grand jury's own initiative.
A grand juror may not be subject to partisan secret influences. Consequently, no one has
the right to approach a juror in order to persuade that juror that an indictment should or should
not be found. Any individual who wishes to be heard by the grand jury should be referred to the
state attorney (or the statewide prosecutor) or to the foreperson of the grand jury, and thereafter
be heard only in formal session of the grand jury.
It is imperative that you always keep in mind that as a grand juror you are a public
official, with the duty of protecting the public by enforcing the law of the land. Therefore, even
though you may think a certain law to be unduly harsh or illogical, that should not influence your
judgment in carrying out your duties as a grand juror. A citizen has the right to endeavor to
change the law. A grand juror, being a public official, has a duty to enforce the law as it exists
despite any personal inclinations to the contrary.
The grand jury in addition to the duty of formally indicting those charged with crime has
the further important duty of making investigations on its own initiative, which it will report as a
"presentment." This duty permits investigation of how public officials are conducting their offices
and discharging their public trusts. The grand jury may investigate as to whether public
institutions are being properly administered and conducted. It has the power to inspect those
institutions and, if necessary, may call before the grand jury those in charge of the operations of
public institutions as well as any other person who has information and can testify concerning
them. If the grand jury finds that an unlawful, improper, or corrupt condition exists, it may
recommend a remedy.
The grand jury may not act arbitrarily. Investigations shall not be based upon street
rumor, gossip, or whim, and the investigations cannot be the subject of a grand jury presentment.
The grand jury can only investigate those matters that are within its jurisdiction, geographic and
otherwise. The limitations of the grand jury's jurisdiction have been set forth for you by the court
in its instructions.
It is important to keep in mind that no individual should be unjustly criticized or held up
to scorn or public resentment, particularly when it is remembered that the individuals who may be
criticized had no opportunity to defend themselves or give reply to the charges. A grand juror
must keep in mind that the grand jury is the ultimate instrument of justice and should never be
subverted to become the vehicle for harassment or oppression.
OFFICERS OF THE GRAND JURY
The judge who presided over the impaneling of the grand jury in the "charge to the grand
jury" advised you formally and in great detail as to how the grand jury is organized and functions.
In summary, the grand jury consists of 15 but no more than 21 members. Its officers are the
637
foreperson, who will preside over the grand jury deliberations to make sure they are carried on in
an orderly fashion including overseeing the examination of the witnesses; a vice-foreperson, who
will preside in the absence of the foreperson or if for any reason the foreperson is not able to
carry out his or her duty; and the clerk, who will keep a record of the proceedings had before the
grand jury and formally make return of these records to the clerk of the circuit court (or clerk of
the Supreme Court in the case of the statewide grand jury) for safekeeping. The foreperson and
vice-foreperson are appointed by the judge and the clerk is appointed by the foreperson (or in the
case of the statewide grand jury, may be selected by the group). The state attorney (or the
statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will act as
the legal advisers to the grand jury. The grand jury also will be provided an official court reporter
or recorder to record the testimony before the grand jury.
If the grand jury has its own budget, a treasurer of the grand jury may also be appointed
to keep account of all receipts and disbursements made to or from the grand jury budget.
If any question should arise concerning how the grand jury shall operate or function, you
may apply to the judge, who will advise you.
PROCEDURES
Not less than 15 members of a grand jury must always be present to constitute a quorum.
If less than a quorum exists, the proceedings of the grand jury must be halted until a quorum is
present. Grand jurors, who, because of an emergency, find that they will be unable to attend a
grand jury session should advise the grand jury clerk or foreperson immediately.
An affirmative vote of at least 12 members of the grand jury is necessary to the return of
a true bill or indictment. Therefore, even though a quorum is present it still requires at least 12
votes of individual members, rather than a mere majority of those present, in order to return a true
bill.
PROCEEDINGS OF THE GRAND JURY
Most of the work of the grand jury involves hearing witnesses and determining the
sufficiency of evidence on the issue of whether that evidence, without regard to possible defenses,
justifies indictment. Generally, the state attorney (or statewide prosecutor) or assistant state
attorneys (or assistant statewide prosecutors) will present and explain the charge to the grand jury
and advise as to the witnesses who will be presented, either voluntarily or upon being summoned
on the request of the state attorney (or statewide prosecutor) or the grand jury itself. The grand
jury may call any witness it deems appropriate and necessary.
The witnesses will be called one by one and placed under oath to tell the truth. Generally,
the state attorney (or statewide prosecutor) will administer the oath. This oath should be
administered in a solemn, dignified, and deliberate manner in order to impress upon the witness
the seriousness of the situation and the duty to be truthful. The state attorney (or the statewide
prosecutor) or assistant state attorneys (or assistant statewide prosecutors) ordinarily will
undertake to question the witnesses first. If the foreperson, or any member of the grand jury
desires to do so, they then also may propound questions. It is suggested, however, that any
question first be submitted to the state attorney (or statewide prosecutor), who will determine
whether the question is appropriate.
Grand jurors should keep in mind that they are acting in a judicial capacity and sitting in
judgment of evidence before them. For this reason all questioning should be done in a calm,
impartial, and objective manner without indicating the personal feelings of the person asking the
questions.
638
Occasionally, a witness when brought before the grand jury refuses to testify or answer
questions. If this occurs, both the question the witness has refused to answer and the fact of
refusal should be carefully recorded. The matter then should be brought before the court, with a
complete copy of the record, in order to obtain from the court a ruling on whether the witness
may be compelled to answer the question. In most instances a refusal to answer is based upon the
claim of the witness that the answer will violate the constitutional right against self-incrimination.
If the answer does tend to incriminate the witness, the witness cannot be made to answer. If it
does not, however, the witness will be ordered to answer under penalty of contempt.
An accused person cannot be compelled to testify before a grand jury although one under
investigation by the grand jury may appear voluntarily to testify. In that event, however, the grand
jury should proceed with great caution and should not permit one under investigation to testify
until after first conferring with the state attorney (or the statewide prosecutor). If an accused, or
any person under investigation, is permitted to testify before the grand jury without waiving the
constitutional right against self-incrimination, any indictment or presentment would be null and
void.
It is clear that the matter of forcing a witness to testify or of giving the accused an
opportunity to testify raises complicated legal questions. The advice of the state attorney (or the
statewide prosecutor) and, when necessary, a ruling from the court, therefore, always should be
sought when these questions arise.
A witness is permitted to be represented before the grand jury by one attorney. The
attorney may be present for the purpose of advising and consulting with the witness, but may not
address the grand jurors, raise objections, or make arguments. (This provision does not apply to
proceedings of the Statewide Grand Jury.)
DETERMINATION WHETHER TO RETURN AN
INDICTMENT OR A NO TRUE BILL
When the grand jury has heard all necessary or available witnesses and is prepared to
deliberate on the issue whether to indict or return a no true bill, the foreperson must compel all
persons to leave the grand jury room except the members of the grand jury themselves. No other
person is permitted in the grand jury room during its deliberations, even including the state
attorney (or the statewide prosecutor), court reporter, and interpreter.
When the question of whether to indict or return a no true bill is presented, all grand
jurors have the right to comment on the evidence and to express their views of the matter. Only
when all members of the grand jury have expressed themselves and each has been given the
opportunity to be heard should a vote be taken. A vote to return an indictment can be found only
upon the affirmative vote of at least 12 members of the grand jury.
Similar proceedings should be taken when the matter to be discussed is not a criminal
charge or indictment but a presentment, as noted above.
If all persons, except the grand jurors, are not removed from the grand jury room during
its deliberations, any indictment or presentment would be nullified.
THE STATE ATTORNEY (OR THE STATEWIDE PROSECUTOR)
AS LEGAL ADVISOR TO THE GRAND JURY
The court in its charge to the grand jury outlined the part that the state attorney (or the
statewide prosecutor) will play in assisting the grand jury. The state attorney (or the statewide
prosecutor) will assume responsibility for presenting witnesses and bringing testimony before the
grand jury. The state attorney (or the statewide prosecutor) is a public official and is entitled to
the confidence and cooperation of the grand jury.
639
It occurs sometimes, however, that even the best of advisors may be in error. If a
difference of opinion arises between the state attorney (or the statewide prosecutor) and the grand
jury and it cannot be resolved amicably, the matter should be brought before the presiding judge
for a ruling.
SECRECY OF GRAND JURY PROCEEDINGS
Secrecy as to all grand jury proceedings is of the utmost importance. This includes not
only the actions upon an indictment or a presentment but even the fact that any such matter was
considered, or any witness was called. It is only in this manner that the grand jurors themselves
can be protected from pressure by persons who may be involved by the action of the grand jury.
Secrecy also is the only protection that a witness may have before a grand jury, which will protect
the witness from being tampered with or intimidated before testifying at the trial. Further, secrecy
may prevent one under indictment, or subject to indictment, from escaping while the issue of
indictment is under consideration. It also should be remembered that secrecy may encourage
witnesses to give the grand jury frankly and candidly any knowledge they may have concerning
crime or corruption. Lastly, and of equal importance to all other consideration of secrecy, is the
fact that an innocent person who has been subjected to a charge but not indicted should be
protected from the embarrassment and disgrace attendant upon the making of a charge before a
grand jury.
The pledge of secrecy is paramount. It also is permanent.
A grand juror will not communicate to family, friends, associates, or anyone concerning
any matter that takes place in the grand jury room. The only time this veil of secrecy may be
lifted is by order of the court after a full hearing, and then only in exceptional cases.
PROTECTION AND IMMUNITY OF GRAND JURORS
Grand jurors are fully protected from actions against them by being an independent body
answerable to no one except the court that empanels it. No inquiry may be made to learn what
grand jurors said or how they voted. The law gives the grand juror complete immunity for official
acts. There is only one exception: if a grand juror testifies as a witness for the grand jury as to a
commission of a crime and that testimony is perjured, the juror could be prosecuted for that
perjury. This complete protection for the official acts obviously is vital to the operation of the
grand jury and points up that grand jurors should be citizens of unquestionable integrity and high
character.
ON BEING A GRAND JUROR
SOME PRACTICAL SUGGESTIONS
Attend all sessions of the grand jury. Your attendance should be regular and on time. If
you are unable to attend a session and wish to be excused, obtain permission from the foreperson.
The unexpected lack of a quorum could cause a great loss of money, as well as the time of the
jurors, the authorities, and the witnesses. The public is depending on you.
Pay close attention to testimony given and the evidence presented.
Be courteous to the witnesses and your fellow jurors.
Fix the time and place of your meetings, keeping in mind the convenience of the public
and the witnesses as well as yourselves and the state attorney (and the statewide prosecutor).
Do not interrupt until the state attorney (or the statewide prosecutor) has finished
questioning the witness. In all probability the evidence you are interested in will be brought out
by those questions.
640
Listen to the opinions of your fellow jurors, but maintain your own independent
viewpoint.
Be independent, but not obstinate.
Be absolutely fair. You are acting as a judge. You therefore must be guided by your own
good conscience and sense of justice.
All jurors have an equal voice in determining whether an indictment shall be returned.
Each of you has a right to state your reasons.
Do not remain silent when the case is under discussion and then, after a decision has been
made, criticize the acts of the grand jury.
A reckless grand jury is as bad as a weak grand jury.
Do not attempt to investigate matters beyond the province of the grand jury, or merely
because someone suggested an investigation.
Above all, refrain from discussing grand jury matters with fellow jurors outside of the
grand jury room.
Each juror has a duty and responsibility equal to yours. Each juror is entitled to be
satisfied with the evidence. If others wish to pursue a matter further, no effort should be made to
dismiss the witness or shut off proper discussion.
CONCLUSION
Your membership on the grand jury is an honor. You are one of the few citizens who have
been called upon to perform this service. Your service as a grand juror will be a source of pride
and satisfaction to you if you devote to it the responsible participation and dedicated service that
the grand jury is entitled to expect from its members.
Comment
The grand jury handbook was initially approved in 1981. It was amended in 1991, in June
2002, and September 2005.
641
642
PRELIMINARY STATEMENTS
1.1
LADIES AND GENTLEMEN, the oath you have just taken now constitutes you the
grand jury for __________ (county) (or the statewide grand jury) for this term of
court. Your term begins today and will continue through the (date). You will not be
expected to remain in continuous session, but you will be called from time to time
when circumstances require your consideration. Your immediate duty will be to
consider those matters to be presented to you at this time.
1.2
It is my duty to instruct you concerning your duties and it is your duty to follow
these instructions as you understand them.
1.3
Your duties are those of an investigative body. You are authorized to inquire into
and investigate both criminal and civil matters. You should be fully aware at all
times of the enormous power vested in the grand jury. This power carries with it the
profound responsibility to see that it is not abused. You are responsible only to the
court.
1.4
No duty of citizenship is more important than service as a grand juror, for no other
group of citizens has the opportunity to make a more valuable contribution to the
administration of justice.
1.5
The grand jury system is of ancient vintage. History has proved its effectiveness in
regulating the affairs of free people. The seven hundred years of its existence in its
present form justifies it as a guardian of all that is comprehended in the police
power of the state.
1.6
You always should keep in mind that the grand jury is both a sword and a shield
a sword because the power of the grand jury has a chilling and deterrent effect on
those who violate the law it is a shield because of its power and duty to protect the
innocent against persecution.
1.7
Your service as a grand juror will be a satisfying and rewarding experience for by it
you will participate directly in the administration of justice. You will have the
opportunity, if circumstances justify it, to inquire into, examine, and investigate not
only violations of the criminal law but all phases of the civil administration of
government. You should bring to your task your most wholehearted and
conscientious efforts. The grand jury is one of the keystones of democracy. Grand
jurors upon being called into service are expected to exercise their honest
convictions and best judgment in the administration of justice. The grand jury
operates freely, unhampered, and subject only to the restraint fixed by the
limitations and requirements of the law itself.
1.8
The importance of your work as a grand juror of this county (or the statewide grand
jury) and your grave responsibility must be realized by each of you and be kept in
mind during all of your investigations and deliberations.
2.1
The function of the grand jury in criminal matters is to investigate and determine
whether there is sufficient evidence to justify an indictment against an accused.
643
2.2
It is not your province to try the case and determine the guilt or innocence of the
accused, and you are not expected to do this.
2.3
2.4
Your duty is only to ascertain whether there is "probable cause" a crime has been
committed by the person so accused. If the evidence is sufficient to constitute
"probable cause," then it is your duty to find what is known as a "true bill." If the
grand jury does find a "true bill" and it is properly returned in open court, it then
becomes the "indictment" on which the accused will be put to trial.
2.5
"Probable cause," which must be shown to your satisfaction before you will be
justified in returning a "true bill," is defined as a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a cautious
person in the belief that a particular person is guilty of a particular crime.
2.6
You should vote to return a "true bill" if you find "probable cause" that a crime has
been committed and that the accused probably did commit that crime. There may
be instances when it seems probable that a crime has been committed and yet you
feel that the accused is not guilty or you have a strong doubt in your mind as to
guilt. In those cases you should vote not to return a "true bill," for in those cases you
should keep in mind that you have heard only one side of the case and have no
knowledge of the defendant's side of the case. Certainly, if there is considerable
doubt in your minds of the accused, then it cannot be expected that the State could
convince a trial jury of a defendant's guilt beyond every reasonable doubt, when the
State's case will be vigorously attacked and the trial jury also will hear the
defendant's story. A state attorney (or a statewide prosecutor) will advise and counsel
the grand jury as its legal advisor and while you do not have to follow that advice
you should give it strong consideration. The state attorney (or the statewide
prosecutor) also will be in a position to advise whether other evidence may be
available at the time of trial if the accused is indicted.
2.7
When so justified it is your solemn duty to cause the accused person to be indicted;
likewise, when an indictment is not justified, it is equally your solemn duty to clear
the accused person by returning a "no true bill."
2.8
Our state constitution provides that no person may be tried for a capital crime
except on presentment and indictment by a grand jury. A capital crime is one that is
punishable by death. Although you have the authority to do so, the court
recommends that a grand jury not investigate criminal matters other than capital
cases unless they are of such public importance that they justify the additional time
and expense of investigation by the grand jury. Again, you should give weight to the
recommendations and advice of the state attorney (or the statewide prosecutor) in the
matters you are investigating; however, the final decision rests with you. You should
keep in mind, however, that the state attorney (or the statewide prosecutor) in most
cases has thoroughly investigated the case and will have the responsibility to
644
prosecute the indictments resulting from your investigation. The state attorney (or
the statewide prosecutor) has the duty to provide you not only the evidence
unfavorable to the person under investigation but also any matters favorable to that
person that are known; consequently, the state attorney's (or the statewide
prosecutor's) recommendations usually are both practical and well-founded.
2.9
The grand jury should not cause any subpoena to be issued for a witness nor permit
any witness to appear before it without first consulting the state attorney (or the
statewide prosecutor) or an assistant. This is in order to avoid inadvertently giving
immunity to a person who may be subject to indictment.
2.10
The court recommends that the grand jury call witnesses and consider evidence only
in those matters that are under consideration for presentment or indictment, and
refrain from calling witnesses or gathering evidence to be used in cases in which an
indictment or information has already been filed. You of course may continue with
any incomplete investigations, or call witnesses and consider evidence as to any new
charges against a person already indicted.
CIVIL INSTRUCTIONS
3.1
The grand jury is not limited to investigation of criminal matters. It has broad
powers to make inquiries into civil administration, regardless of whether criminal
or irregular conduct is charged. It has power to investigate public offices to
determine if they are being conducted according to law and good morals. It also has
power to investigate the conduct of public affairs by public officials and employees,
including the power to inquire whether those officials are incompetent or lax in the
performance of their duties.
3.2
The grand jury should investigate every offense affecting the morals, health,
sanitation, and general welfare of the county. It should inquire into matters of
governmental administration, including county institutions, buildings, offices, and
officers, and, when appropriate, make presentment concerning the physical,
sanitary, and general conditions.
3.3
You are cautioned, however, that a grand jury investigation shall not be made the
tool of any group in order to harass or oppress any individual or institution or to
pry into private affairs without good cause. Indictments based on street rumors or
common gossip will not be permitted. No person should be singled out by the grand
jury for the purpose of censure or to hold them up to scorn or criticism by
imputation or innuendo. It is improper to make a presentment using words of
censure or reprobation so that a public official or any other person is impugned or
embarrassed, unless you return a "true bill."
3.4
This is not to say, however, that the grand jury may not make a fair report on its
findings even though the report incidentally may reflect negligence or incompetence
on the part of a public official. There are no limitations on the grand jury telling the
truth when circumstances justify it. Grand jury investigations of civil matters and
local government are not uncommon. They are necessary and commendable if they
produce good results. The searching eye and inquiring mind of the grand jury is an
effective deterrent to evil and corruption; no officer or agency of government is
above or beyond the reach of the grand jury. A public official or employee who
conducts public work in a proper manner has no reason to fear the grand jury, and
645
if there are reasons to do so, you should not hesitate to call any public official or
employee before you.
4
PROCEDURE
4.1
The officers of the grand jury are the foreperson and vice-foreperson, both to be
appointed by the court (or elected by the statewide grand jury body), and the clerk, to
be appointed by the foreperson.
DUTIES OF THE FOREPERSON: To preside over your sessions and see that they
are carried on in an orderly fashion; appoint your clerk at your first session; be
responsible for seeing that no person participating in or advising the grand jury has
any conflict of interest with the duties of a grand juror; consult with the state
attorney (or the statewide prosecutor) concerning the scope, means, and method of the
grand jury's investigation; report to the court any grand juror who the foreperson
has reason to believe has violated the oath, duties, or responsibilities, or who is
subject to disqualification; sign all interim and final reports approved by the grand
jurors; return to the court a list of all witnesses who shall have been sworn by the
grand jury; and sign presentments and indictments approved by the grand jurors.
DUTIES OF THE VICE-FOREPERSON: The vice-foreperson shall act in the
absence of the foreperson and perform all the duties incumbent on the foreperson.
4.2
DUTIES OF THE CLERK. The clerk shall keep an attendance record of the grand
jurors present and absent at each session; keep minutes of the proceedings at each
session. The minutes shall reflect the subject matter of the proceeding and the names
of the witnesses testifying in relation. The clerk shall record the aye and nay vote on
each vote taken by the grand jury, but by number only and not by the names of the
grand jurors. The clerk also shall sign all interim and final reports approved by the
grand jury.
(Give only if applicable.) This grand jury has had a special fund budgeted for its use.
The court will therefore appoint one of your number treasurer of this grand jury.
The treasurer shall keep accounts of all receipts and disbursements of any funds
received or disbursed by the grand jury.
4.3
The state attorney (or the statewide prosecutor) and assistants are your legal advisers
on all matters that come before the grand jury. It is your duty to give weight and
careful consideration to this advice. The state attorney (or the statewide prosecutor)
or an assistant shall be present at all times when you are making investigations, and
will interrogate the witnesses and administer the necessary oaths.
The state attorney (or the statewide prosecutor) will draft "true bills" for the grand
jury and will provide the means for the drafting of its presentments.
4.4
Every grand jury shall consist of not less than 15 nor more than 21 persons. At least
15 of the jury must be present at all times when the jury is functioning. A favorable
vote of not less than 12 of those present is necessary to the finding of any "true bill,"
presentment, or report. (The Statewide Grand Jury shall be composed of 18
members of which 15 members shall constitute a quorum.)
646
4.5
It is within your discretion to recess from day to day and week to week subject to the
requirements of your duties. You are reminded, however, that the term of court is
limited and the time within which you may act likewise is limited. You therefore
should attend to your duties diligently and in as short a time as is compatible with
the necessary attention to the work to be done.
4.6
The testimony and statements of those appearing before the grand jury will be
recorded by stenographic or mechanical means. The court reporters are officers of
the court and are bound to secrecy when serving the grand jury. The law requires
that the notes, records, and any transcriptions prepared by the court reporter be
impounded and sealed when your work is completed. The court reporter's notes
may not be transcribed unless ordered by the court or the grand jury itself, and
even after transcription they may not be inspected by any person other than the
state attorney (or the statewide prosecutor) and the grand jury, except upon order of
the court.
The decision to have a court reporter present during your sessions is to be made by
the grand jury after due consideration to the nature of the work to be done, and it is
recommended that the grand jury follow the advice of the state attorney (or the
statewide prosecutor) on this question.
4.7
4.8
Bailiffs provided by the sheriff will be available to the grand jury as needed.
4.9
It is the duty of the judges of this court not only to initially charge a grand jury
concerning its duties but also to be available at all reasonable times to advise the
grand jury in the event it becomes necessary. If at any time during your term you
feel it necessary, you may call upon the court for any assistance it can render you.
4.10
This grand jury has a duty to cooperate with any other grand jury investigations
being conducted in this county or elsewhere in the state if the administration of
justice requires it, including making reports of your investigation available to any
subsequent grand jury of the county (or the statewide grand jury).
5.1
6.1
If the state attorney (or the statewide prosecutor) is disqualified from advising and
participating in the duties of the grand jury, the court will appoint a special state
attorney (or a special statewide prosecutor).
647
The state attorney (or the statewide prosecutor) will counsel, assist, and advise the
grand jury; however, should any irreconcilable conflict arise between the state
attorney (or the statewide prosecutor) and the grand jury, the court is available to
assist in resolving the problems.
7
7.1
The grand jury functions and operates only as a whole body. No individual or group
of grand jurors may make, or attempt to make, any independent investigation
whatsoever.
7.2
The law provides that, if a grand juror knows or has reason to believe that an
indictable offense triable in this county has been committed, the juror shall declare
that fact to the other jurors for investigation. Individually, a juror may receive
information but that information shall be reported immediately to the foreperson or
the state attorney (or the statewide prosecutor) for investigation if it is of interest to
the grand jury or relevant to its investigations.
8.1
CHILD LABOR LAW: The law requires that the court specifically charge the grand
jury, and you are now charged, to investigate any alleged violation of the child labor
laws of the state.
8.2
8.3
SUBVERSIVE ACTIVITIES LAW: The subversive activities laws of this state make
it unlawful for any subversive organization or foreign subversive organization to
exist or function in the State of Florida. The court charges you that, if you have any
information or belief concerning violation of the subversive activities laws, you will
report the information to the court immediately. You are further charged that, if
circumstances make it appropriate, you will inquire into the violation of the
subversive activities laws and may inquire generally into the purposes, processes,
and activities or other matter affecting communists or any related or other
subversive organization.
OATH
9.1
The court would now like to emphasize the importance of the oath that each of you
has just taken. The oath is prescribed by law and contains in simple terms the
solemn obligation by which you are bound, and which you must observe in every
respect. It contains no unnecessary words. It means exactly what it says.
9.2
The oath, in part, is that "You, as grand jurors for __________ County (or statewide
prosecutor) do solemnly swear (or affirm) that you will diligently inquire into all
matters put in your charge and you will make true presentments of your findings;
unless ordered by a court, you will not disclose the nature or substance of the
deliberations of the grand jury, the nature or substance of any testimony or other
648
evidence, the vote of the grand jury, or the statements of the state attorney (or the
statewide prosecutor)."
9.3
The importance of this part of the oath binding you to secrecy cannot be overemphasized. I now charge you that you shall not under any circumstances discuss
the matters to be kept secret unless you are released by court order. Your vote shall
never be known; the opinion expressed by any of you on any matter before the
grand jury shall never be made known; and the testimony given before you shall not
be made known except by order of court. This secrecy is binding upon you for all
time.
9.4
9.5
The oath, like the grand jury system itself, is of ancient vintage. It is in substance the
same oath as was administered to grand juries under the common law. It is near
perfect. It contains the rules and high standards of fearless and impartial justice
that will govern you in your service as the grand jury of this county (or statewide
grand jury). Its solemn dictates are as appropriate today as they have been in the
long past.
10
CONCLUSION
10.1
The instructions you have just been given constitute the general charges that are
given to the grand jury as to its duties, responsibilities, and procedures. You are
admonished to give careful and serious consideration to all phases of all parts of the
charge. You are to follow these charges, and having done so you should act
according to the dictates of your own conscience and only in the best interest of the
citizens of this county (or the state).
11
APPOINTMENT
11.1
The grand jury instructions were initially approved in 1981. They were revised in 1991
and amended in June 2002, and September 2005.
649
The attorneys are trained in the rules of evidence and trial procedure, and it is their
duty to make all objections they feel are proper. When a lawyer makes an objection, the
objection will either be overruled or sustained. If an objection is overruled, the witness will
answer the question. If an objection is sustained or upheld, the witness cannot answer the
question. If an objection is sustained, you must not speculate on what might have happened,
or what the witness might have said, had the witness been permitted to answer the question.
You should not draw any inference from the question itself.
The judge's conferences with attorneys
During the trial, it may be necessary to confer with the attorneys out of your
hearing to discuss matters of law and other matters that require consideration by me alone.
It is impossible to predict when such a conference may be required or how long it will last.
When such conferences occur, they will be conducted so as to consume as little of your time
as is necessary for a fair and orderly trial of the case.
Recesses
During the trial we will take recesses. During these recesses you shall not discuss the
case among yourselves or with anyone else, nor permit anyone to say anything to you or in
your presence about the case. Further, you must not talk with the attorneys, the witnesses,
or any of the parties about anything, until your deliberations are finished. In this way, any
appearance of something improper can be avoided.
If during a recess you see one of the attorneys and he or she does not speak to you,
or even seem to pay attention to you, please understand that the attorney is not being
discourteous but is only avoiding the appearance of some improper contact with you. If
anyone tries to say something to you or in your presence about this case, tell that person
that you are on the jury trying this case, and ask that person to stop. If he or she keeps on,
leave at once and immediately report this to the bailiff or court deputy, who will advise me.
At this time, the attorneys for the parties will have an opportunity to make their
opening statements, in which they may explain to you the issues in the case and give you a
summary of the facts they expect the evidence will show.
Comment
This instruction is based upon Florida Standard Jury Instruction (Civil) 1.1 and Kansas
jury instructions regarding the civil commitment of sexually violent predators.
2.
3.
A sexually violent offense is: Read only those "sexually violent offenses" applicable
based on the allegations of the petition and the evidence presented.
1.
2.
Kidnapping of a child under the age of 13, and in the course of that offense
committing a sexual battery or a lewd, lascivious, or indecent assault or act
upon or in the presence of the child;
3.
False imprisonment upon a child under the age of 13, and in the course of
that offense committing a sexual battery or a lewd, lascivious, or indecent
assault or act upon or in the presence of the child;
4.
Sexual battery;
5.
6.
[
] If applicable, insert the name of the comparable other state or
federal felony conviction which the state has proved. See 394.912(9)(g), Fla.
Stat.
7.
8.
Any criminal act that has been determined beyond a reasonable doubt to be
sexually motivated. However, before you can find the crime was sexually
motivated, the State must prove, beyond a reasonable doubt, that one of the
purposes for which the person committed the crime was sexual gratification.
If you have a reasonable doubt about whether or not the crime was sexually
motivated, then you should find the act was not sexually motivated.
considering, comparing, and weighing all the evidence, there is not an abiding conviction
that the act was sexually motivated, or, if, having a conviction, it is one which is not stable
but one which wavers and vacillates, then it has not been proven beyond every reasonable
doubt.
Whether a crime was sexually motivated may have been previously determined. See
394.912(9)(h), Fla. Stat.
Definitions
"Mental abnormality" means mental condition affecting a person's emotional or
volitional capacity which predisposes the person to commit sexually violent offenses.
"Likely to engage in acts of sexual violence" means a person's propensity to commit
acts of sexual violence is of such a degree as to pose a menace to the health and safety of
others.
Comment
This jury instruction is based upon the definitions found in 787.01, 787.02, 794.011,
800.04, 394.912, Fla.Stat.; Cheesbrough v. State, 255 So.2d 675 (Fla. 1971); Florida Standard
Jury Instructions in Criminal Cases; and the Kansas jury instructions regarding the civil
commitment of sexually violent predators.
Did the witness seem to have an opportunity to see and know the things
about which the witness testified?
2.
3.
4.
Did the witness have some interest in how the case should be decided?
5.
Does the witness's testimony agree with the other testimony and other
evidence in the case?
6.
Was the testimony of the witness reasonable when considered in the light of
all the evidence in the case and in the light of your own experience and
common sense?
Had any pressure or threat been used against the witness that affected the
truth of the witness's testimony?
9.
Did the witness at some other time make a statement that is inconsistent
with the testimony [he] [she] gave in court?
10.
Was it proved that the witness had been convicted of a felony or a crime
involving dishonesty or false statement?
11.
Was it proved that the general reputation of the witness for telling the truth
and being honest was bad?
You may rely upon your own conclusion about the witness. A juror may believe or
disbelieve all or any part of the evidence or the testimony of any witness.
You must follow the law as it is set out in these instructions. If you fail to
follow the law, your verdict will be a miscarriage of justice. There is no
reason for failing to follow the law in this case. All of us are depending upon
you to make a wise and legal decision in this matter.
2.
This case must be decided only upon the evidence that you have heard from
the answers of the witnesses [and have seen in the form of the exhibits in
evidence] and these instructions.
3.
This case must not be decided for or against anyone because you feel sorry
for anyone or are angry at anyone.
4.
Remember, the lawyers are not on trial. Your feelings about them should not
influence your decision in this case.
5.
6.
7.
8.
)
)
)
Respondent.
)
_______________________________________)
VERDICT
Complete paragraph A, B, or C:
(Check only one)
______A.
______B.
______C.
The jury is unable to make a unanimous verdict, but ______ jurors find the
respondent is a sexually violent predator, and________ jurors find the
respondent is not proven to be a sexually violent predator.
DATED this ______ day of _________________, [year].
_______________________
FOREPERSON
_______________________
(Print Foreperson's name)
Comment
This instruction was approved in June 2000.
2.
3.
4.
Offenses which may or may not be included in the offense charged, depending on
the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list
of the offenses applicable to each of the crimes for which standard jury instructions had been
drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4
offenses depending upon the offense and treating attempts as a category 4 offense, thereby
eliminating the first two Brown categories as separate categories. In its opinion dated April 16,
1981, in which it approved the new standard jury instructions, the supreme court also approved
the schedule of lesser included offenses and accepted the recommendation of the committee to
consolidate the four Brown categories into two categories. The supreme court directed that the
four categories should be renumbered and designated as follows:
1.
Offenses necessarily included in the offense charged, which will include some
lesser degrees of offenses.
2.
Offenses which may or may not be included in the offense charged, depending on
the accusatory pleading and the evidence, which will include all attempts and
some lesser degrees of offenses.
The court also directed that the appropriate Florida Rules of Criminal Procedure be
amended to accommodate these changes. The categories of the offenses which appear on the
schedule of lesser included offenses have been renumbered and designated according to the
supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the table, the committee
followed certain guidelines:
1.
2.
If the definition of the crime includes the attempt or the endeavor to commit the
crime, there can be no separate offense of an attempt to commit that crime, e.g.,
uttering, forgery, grand theft second degree, delivery of controlled substance.
3.
Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury,
corruption by threat against public servant, resisting officer with violence, and
conspiracy.
4.
Except as stated above, attempts to commit crimes generally are included unless
the evidence conclusively shows that the charged crime was completed. In such
case, attempt should not be instructed.
5.
Some statutes provide that the penalty for certain crimes is enhanced if certain
events occur during their commission. For example, under F.S. 810.02 burglary is
a felony of the first degree if the burglar makes an assault or is armed with
explosives or dangerous weapons. If these events do not occur but burglary is
committed in a dwelling occupied by human beings, the offense is a felony of the
second degree. All other burglaries are felonies of the third degree. Thus, if a
defendant is charged with first degree burglary by virtue of having made an
assault during the course of the burglary, the jury should be permitted to return a
verdict for simple third degree burglary without the enhancement of the assault.
In practice, this is similar to the concept of lesser included offenses, but since
statutes of this type are couched in terms of enhancement, the schedule does not
carry the lower degrees of the offenses proscribed by those statutes as lesser
included offenses.
6.
Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included
within a single indictment count of premeditated murder. Therefore, first degree
felony murder should be given if requested by the state and if supported by the
evidence, although it is not a lesser included offense.
550.361
CHARGED
OFFENSES
Driving under the
influence
Felony DUI prior
convictions
DUI with damage to
property or person
DUI with serious
bodily injury
DUI manslaughter
Bookmaking on
grounds of permit
holder (adapted from
former 849.24)
CATEGORY 1
CATEGORY 2
None
Attempt
None
Attempt
DUI 316.193(1)
None
DUI 316.193(1)
DUI 316.193(3)(c)1
DUI 316.193(1)
None
SECTION
782.04(1)
CHARGED
OFFENSES
First degree
(premeditated)
murder
CATEGORY 1
CATEGORY 2
782.04(1)
782.04(1)(a) &
777.04
SECTION
782.04(2)
782.04(3)
CHARGED
OFFENSES
Second degree
(depraved mind)
murder
CATEGORY 1
Manslaughter 782.07
None
782.04(4)
None
782.07
Manslaughter
None
782.071
Vehicular Homicide
784.011
784.021(1)(a)
Assault
Aggravated assault
None
Assault 784.011
784.021(1)(b)
Aggravated assault
Assault 784.011
782.051
None
CATEGORY 2
Third degree (felony) murder
782.04(4)
Vehicular homicide 782.071
(Nonhomicide lessers)
Attempt
Culpable negligence
784.05(2)
Aggravated battery
784.045
Aggravated assault
784.021
Battery 784.03
Assault 784.011
Third degree (felony) murder
782.04(4)
Felony causing bodily injury
782.051(2)
Felony causing bodily injury
782.051(3)
Aggravated assault 784.021
Battery 784.03
Assault 784.011
Vehicular homicide 782.071
(Nonhomicide lessers)
Attempt
Aggravated assault
784.021
Battery 784.03
Assault 784.011
Culpable negligence
784.05(1)
Culpable negligence
784.05(2)
Culpable negligence
784.05(1)
Culpable negligence
784.05(2)
Attempt
Attempt
Improper exhibition of
dangerous
weapons or firearms
790.10
Discharging firearms in public
790.15
Attempt
SECTION
784.03
784.045(1)(a)1
784.045(1)(a)2
CHARGED
OFFENSES
Battery
Aggravated battery
Aggravated battery
None
Battery 784.03
Battery 784.03
784.045(1)(b)
784.05(2)
784.048(3)
Aggravated battery
Stalking
Aggravated stalking
Battery 784.03
None
Stalking 784.048(2)
784.048(4)
Aggravated stalking
Stalking 784.048(2)
784.05(2)
Culpable negligence
784.07(2)
Assault of law
enforcement
officer
Culpable negligence
784.05(1)
Assault 784.011
784.07(2)
Battery of law
enforcement officer
Aggravated assault on
law enforcement
officer
784.07(2)(c)
CATEGORY 1
CATEGORY 2
Attempt
Attempt
Attempt
Improper exhibition of
dangerous weapons or
firearms 790.10
Attempt
Attempt
Attempt
Assault 784.011
Improper exhibition of
dangerous weapon 790.10
Attempt
Violation of injunction for
protection against domestic
violence 741.31(4)
None
Attempt
Battery 784.03
Attempt
Attempt
Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms in public
790.15
Attempt
Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms in public
790.15
Attempt
Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms in public
790.15
784.07(2)(d)
784.08(2)(a)
SECTION
784.08(2)(b)
CHARGED
OFFENSES
Aggravated assault on
person 65 years of age
or older
CATEGORY 1
Battery 784.03
Assault 784.011
Attempt
787.01
Battery on person 65
years of age or older
Assault on person 65
years of age or older
Kidnapping
Attempt
Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms in public
790.15
Attempt
787.02
False imprisonment
None
Attempt
Aggravated assault
784.021(1)(b)
Battery 784.03(1)(a)
Assault 784.011
Attempt
Battery 784.03(1)(a)
Assault 784.011
790.01(1)
Carrying concealed
weapons
Carrying concealed
firearms
Carrying pistol or
repeating rifle without
first obtaining license
Persons engaged in
criminal offense,
having weapons
None
Attempt
None
Attempt
None
Attempt
None
Persons engaged in
criminal offense,
having weapons
None
784.08(2)(c)
784.08(2)(d)
790.01(2)
790.06
790.07(1)
790.07(2)
CATEGORY 2
SECTION
790.10
790.15
790.161(1)
790.161(2)
790.161(3)
CHARGED
OFFENSES
Improper exhibition of
weapon
Discharging firearms in
public
Possessing, throwing,
making, placing,
projecting, or
discharging destructive
device
Possessing, throwing,
making, placing,
projecting, or
discharging destructive
device
Possessing, throwing,
making, placing,
projecting, or
discharging destructive
device
790.161(4)
Possessing, throwing,
making, placing,
projecting, or
discharging destructive
device
790.162
Threat to throw,
project, place, or
discharge any
destructive device
False reports of
bombing
False reports of
bombing or arson or
other violence to
property owned by the
State
Furnishing weapons to
minors under 18 years
of age, etc.
790.163
790.164
790.17
CATEGORY 1
None
CATEGORY 2
None
Attempt
Assault 784.011
Attempt
None
None
None
None
None
Attempt
False reports of bombing
790.163
None
Attempt
Attempt
Assault 784.011
SECTION
790.18
790.19
790.221
CHARGED
OFFENSES
Selling arms to minors
by dealers
Shooting or throwing
missiles in dwelling
CATEGORY 1
None
Attempt
None
Attempt
Discharging firearm in public
790.15
Attempt
None
790.23
Possession of
forbidden firearms
Felons; possession of
firearms unlawful;
exception; penalty
794.011(2)(a)
(b)
Sexual battery
victim under 12
Battery 784.03
794.011(3)
Sexual battery
victim over 12
weapon or force
794.011(4)
Sexual battery
victim over 12
special circumstances
794.011(5)
Sexual battery
victim over 12
without force
Unnatural and
lascivious act
Exposure of sexual
organs
Battery 784.03
800.02
800.03
CATEGORY 2
None
None
Attempt
None
SECTION
800.04
CHARGED
OFFENSES
Lewd, lascivious, or
indecent assault or act
upon or in presence of
child
806.01(1)
Arson
806.111
806.13(1)(b)1
806.13(1)(b)2
806.13(1)(b)3
Criminal mischief
810.02(2)
810.02(3)
Burglary of dwelling;
Burglary of structure
or conveyance with
human being inside
Burglary
810.02(4)
810.06
810.08
Possession of burglary
tools
Trespass in structure
or conveyance
CATEGORY 1
CATEGORY 2
None
Attempt
Assault 784.011
Battery 784.03
Unnatural and lascivious act
800.02
None
Arson 806.01(2)
Attempt
Criminal mischief 806.13(1)
(b)1
Criminal mischief 806.13(1)
(b)2
Criminal mischief 806.13(1)
(b)3
Criminal mischief 806.13(2)
None
Attempt
None
Attempt
Criminal mischief 806.13(1) Attempt
(b)1
Criminal mischief 806.13(1) Attempt
(b)1
Criminal mischief 806.13(1)
(b)2
Burglary 810.02(4)
Aggravated battery 784.045
Battery 784.03
Aggravated assault 784.021
Assault 784.011
Attempt
Burglary 810.02(3)
Trespass 810.08(2)(a)
Trespass 810.08(2)(c)
Burglary 810.02(4)
Attempt
Burglary 810.02(3)
Trespass 810.08(2)(a)
Trespass 810.08(2)(b)
None
Attempt
Trespass 810.08(2)(a)
None
None
None
SECTION
810.09
812.014(2)(a)
CHARGED
OFFENSES
Trespass on property
other than structure or
conveyance
Grand theft first
degree (property
valued at $100,000 or
more)
CATEGORY 1
None
Attempt
812.014(2)(b)
812.014(2)(c)
812.014(2)(d)
None
Possession of altered
property
Dealing in stolen
property trafficking
None
812.014(2)(e)
812.014(3)(b)
812.014(3)(a)
812.014(3)(c)
812.016
812.019(1)
CATEGORY 2
None
None
None
None
None
SECTION
812.019(2)
812.13(2)(a)
812.13(2)(b)
CHARGED
OFFENSES
Dealing in stolen
property managing
and trafficking
Robbery with a
firearm or deadly
weapon
Robbery with a
weapon
CATEGORY 1
CATEGORY 2
None
Attempt
Grand theft 1st degree
812.014(2)(a)
Grand theft 2d degree
812.014(2)(b)
Grand theft 3d degree
812.014(2)(c)
Petit theft 812.014(2)(e)
Battery 784.03
Aggravated battery 784.045
Assault 784.011
Aggravated assault 784.021
Display of firearm 790.07
Resisting a Merchant
812.015(6)
Robbery 812.13(2)(c)
Petit theft 812.014(3)(a)
Attempt
Grand theft 1st degree
812.014(2)(a)
Grand theft 2d degree
812.014(2)(b)
Grand theft 3d degree
812.014(2)(c)
Petit theft 812.014(2)(e)
Battery 784.03
Aggravated battery 784.045
Assault 784.011
Display of weapon 790.07(1)
Resisting a merchant
812.015(6)
SECTION
812.13(2)(c)
812.013(2)(b)
CHARGED
OFFENSES
Robbery
CATEGORY 1
Petit theft 812.014(3)(a)
812.133
Carjacking
Robbery 812.13(2)(c)
Grand Theft 812.014(2)(c)6
Petit Theft 812.014(3)(a)
812.135
Home invasion
robbery
Burning to defraud
insurer
Sale of substance in
place of a controlled
substance
Incest
Robbery 812.13(2)(c)
Petit theft 812.014(3)(a)
None
827.03(1)(a)
817.233
817.563
CATEGORY 2
Attempt
Grand theft 1st degree
812.014(2)(a)
Grand theft 2d degree
812.014(2)(b)
Grand theft 3d degree
812.014(2)(c)
Petit theft 812.014(2)(e)
Battery 784.03
Assault 784.011
Aggravated assault 784.021
Resisting a merchant
812.015(6)
Attempt
Grand Theft first degree
812.814(2)(a)
Grand Theft second degree
812.014(2)(b)
Grand Theft third degree
812.014(2)(c)
Petit Theft first degree
812.014(2)(e)
Battery 784.03
Assault 784.011
Aggravated Assault 784.021
Petit theft 812.014(2)(e)
None
None
Attempt
None
Attempt
Aggravated child
abuse
None
827.03(1)(b)
827.03(1)(c)
827.03(1)(d)
Aggravated child
abuse
None
827.04(3)
Contributing to child
delinquency or
dependency or to child
None
Attempt
Child abuse 827.04(1)
Battery 784.03; only under
certain circumstances see Kama
v. State, 507 So.2d 154 (Fla. 1st
DCA 1987).
Attempt
Child abuse 827.04(1)
Battery 784.03; only under
certain circumstances see Kama
v. State, 507 So.2d 154 (Fla. 1st
DCA 1987)
Attempt
826.04
827.071(2)
in need of services
Sexual performance by None
a child
827.071(3)
827.071(4)
Attempt
Sexual performance by a child
827.071(5)
Attempt
Sexual performance by a child
827.071(5)
Attempt
SECTION
827.071(5)
831.01
831.02
832.04
832.041
CHARGED
OFFENSES
Sexual performance
by a child
Forgery
Uttering forged
instrument
Stopping payment;
purchase of farm or
grove products
Stopping payment
with intent to defraud
CATEGORY 1
CATEGORY 2
None
Attempt
None
None
Attempt
None
None
None
832.05(2)
Worthless checks
None
832.05(4)
Obtaining property by
worthless checks
837.012
None
None
None
None
None
None
None
None
None
None
None
837.02
837.021
837.05
837.06
838.015(1)
SECTION
838.015
838.016(1)
CHARGED
OFFENSES
Bribery
CATEGORY 1
None
Bribery by a public
servant
Unlawful
compensation for
official behavior
Corruption by threat
against public servant
Bribery in athletic
contests
Bribery in athletic
contests
Resisting officer with
violence
Resisting officer
without violence
None
849.01
Keeping gambling
house
None
849.01
(849.02)
Maintaining a
gambling
establishment
Permitting gambling
None
None
838.016
838.021
838.12(1)
838.12(2)
843.01
843.02
849.01
(849.02)
849.02
849.02
849.03
849.04
None
CATEGORY 2
Attempt if only "accept" is
charged
Attempt if only "give" or
"accept" is charged
Attempt if only "give" or
"accept" is charged
None
None
None
None
None
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(k)
Lottery 849.11
Lottery 849.09(1)(f)
Lottery 849.09(1)(k)
Lottery 849.11
Lottery 849.09(1)(f)
Lottery 849.09(1)(k)
Lottery 849.11
Lottery 849.09(1)(f)
Lottery 849.09(1)(k)
None
None
None
None
None
SECTION
849.08
849.09(1)(a)
CHARGED
OFFENSES
Gambling
Lottery
CATEGORY 1
None
None
849.09(1)(b)
Lottery
None
849.09(1)(c)
Lottery
None
849.09(1)(d)
Lottery
None
849.09(1)(g)
849.09(1)(h)
849.09(1)(k)
Lottery
Lottery
Lottery
None
None
None
CATEGORY 2
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(g)
Lottery 849.09(1)(h)
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k)
Playing at game of chance by lot
849.11
Gambling devices, etc.
849.231
Lottery 849.09(1)(f)
Lottery 849.09(1)(g)
Lottery 849.09(1)(h)
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k)
Gambling devices, etc.
849.231
Lottery 849.09(1)(f)
Lottery 849.09(1)(g)
Lottery 849.09(1)(h)
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k)
Gambling devices, etc.
849.231
Lottery 849.09(1)(f)
Lottery 849.09(1)(g)
Lottery 849.09(1)(h)
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k)
Playing at games of chance by
lot 849.11
Gambling devices, etc.
849.231
None
None
None
SECTION
849.14
849.25(1) and
(2)
893.13(1)(a)
CHARGED
OFFENSES
Betting
Bookmaking
CATEGORY 1
None
None
Sale, manufacture,
None
delivery or possession
with intent to sell,
manufacture or deliver
controlled substance
893.13(1)(b)
Sale or delivery or
possession of more
than 10 grams of
controlled substance
893.13(1)(c)
Sale, manufacture,
delivery, etc. near
public or private
elementary, middle or
secondary school
893.13(1)(d)
Sale, manufacture,
delivery, etc. near a
college, university,
other post-secondary
educational institution
or public park
CATEGORY 2
None
Attempt
Attempt, except when delivery
is charged
893.13(3) if delivery of
cannabis is charged;
893.13(6)(b) if possession of
cannabis is charged;
893.13(6)(a) if possession is
charged and offense would be
a second degree felony under
893.13(1)(a)1
Attempt, except when delivery
is charged
893.13(6)(a) if possession is
charged
Attempt, except when delivery
is charged
893.13(6)(a) if possession is
charged and the offense would
be a second degree felony
under 893.13(1)(a)1
893.13(6)(b) if possession of
cannabis is charged
893.13(3) if delivery of
cannabis is charged
Attempt, except when delivery
is charged
893.13(6)(a) if possession is
charged and the offense would
be a second degree felony
under 893.13(1)(a)1;
893.13(6)(b) if possession of
cannabis is charged;
893.13(3) if delivery of
cannabis is charged
SECTION
893.13(2)(a)
893.13(2)(b)
CHARGED
CATEGORY 1
OFFENSES
Purchase or possession None
with intent to purchase
controlled substance
Purchase in excess of
10 grams of a
controlled substance
Delivery without
consideration not more
than 20 grams of
cannabis
Delivery of controlled
substance to person
under 18 years old, etc.
Bringing controlled
substance into state
893.13(6)(a)
Possession of
controlled substance
None
893.13(6)(b)
None
893.13(3)
893.13(4)
893.13(5)
893.13(6)(c)
893.13(7)(a)1,
2, 3, 4, 5, 6, 7,
8, 10 and 11
893.13(7)(a)9
CATEGORY 2
Attempt;
893.13(6)(a) if possession is
charged and the offense would
be a second degree felony
under 893.13(2)(a)1
893.13(6)(b) if possession of
cannabis is charged
Attempt
None
None
None
893.13(1)(a);
893.13(3) if delivery of
cannabis is charged
Attempt
893.13(6)(a);
893.13(3) if delivery of
cannabis charged;
893.13(6)(b) if possession of
cannabis charged
None
Attempt;
893.13(3) if delivery of
cannabis charged;
893.13(6)(b) if possession of
cannabis charged
Attempt
None
Attempt
893.13(6)(b) if possession of
cannabis charged
Attempt
None
None
SECTION
893.135(1)(a)
CHARGED
CATEGORY 1
OFFENSES
Trafficking in cannabis Trafficking offenses requiring
lower quantities of cannabis
893.135(1)(a)1 and 2
893.135(1)
(b)1&2
Trafficking in cocaine
893.135(1)
(c)1&2
Trafficking in illegal
drugs
CATEGORY 2
Attempt (but not conspiracy),
except when delivery is
charged
893.13(1)(a) if sale,
manufacture or delivery is
charged
893.13(2)(a) if purchase is
charged
Bringing cannabis into state
893.13(5)
Possession of cannabis
893.13(6)(a)893.13(6)(b) if less
than 20 grams of cannabis
Delivery of less than 20 grams
of cannabis 893.13(3)
Attempt (but not conspiracy),
except when delivery is
charged;
893.13(1)(a) if sale,
manufacture or delivery is
charged;
893.13(2)(a) if purchase is
charged;
Bringing cocaine into state
893.13(5);
Possession of cocaine 893.13(6)
(a).
Attempt (but not conspiracy),
except when delivery is
charged;
893.13(1)(a) if sale,
manufacture or delivery is
charged;
893.13(2)(a) if purchase is
charged;
Bringing same illegal drug as
charged into state 893.13(5)
Possession of same illegal drug
893.13(6)(a).
SECTION
893.135(1)(d)1
CHARGED
OFFENSES
Trafficking in
phencyclidine
CATEGORY 1
Trafficking offenses requiring
lower quantities of
phencyclidine 893.135(1)
(d)1.a and b
893.135(1)(e)1
Trafficking in
methaqualone
893.135(1)(f)1
Trafficking in
amphetamine
893.147(1)
Possession of drug
paraphernalia
Delivery, possession
with intent to deliver,
or manufacture with
intent to deliver drug
paraphernalia
None
893.147(2)
None
CATEGORY 2
Attempt (but not conspiracy),
except when delivery is
charged
893.13(1)(a) if sale,
manufacture or delivery is
charged
893.13(2)(a) if purchase is
charged
Bringing phencyclidine into
state 893.13(5);
Possession of phencyclidine
893.13(6)(a)
Attempt (but not conspiracy),
except when delivery is
charged
893.13(1)(a) if sale,
manufacture or delivery is
charged;
893.13(2)(a) if purchase is
charged
Bringing methaqualone into
state 893.13(5)
Possession of methaqualone
893.13(6)(a)
Attempt (but not conspiracy),
except when delivery is
charged
893.13(1)(a) if sale,
manufacture or delivery is
charged;
893.13(2)(a) if purchase is
charged;
Bringing amphetamine into
state 893.13(5);
Possession of amphetamine
893.13(6)(a)
Attempt
Attempt, except when delivery
is charged
SECTION
893.147(3)
893.147(4)
893.149
895.03(1)
895.03(1)
895.03(2)
893.03(2)
895.03(3)
895.03(3)
895.03(4)
CHARGED
OFFENSES
Delivery of drug
paraphernalia to a
minor
Advertisement of drug
paraphernalia
Unlawful possession,
etc., of listed chemical
RICO Use or
investment of proceeds
from pattern of
racketeering activity
RICO Use or
investment of proceeds
from collection of
unlawful debt
RICO Acquisition
or maintenance
through pattern of
racketeering activity
RICO Acquisition
or maintenance
through collection of
unlawful debt
RICO Conduct or
participation in an
enterprise through
collection of unlawful
debt
RICO Conduct or
participation in an
enterprise through a
pattern of racketeering
activity
Conspiracy to engage
in pattern of
racketeering activity
CATEGORY 1
CATEGORY 2
None
None
None
None
None
Attempt
None
None
None
None
None
None
None
None
None
None
None
None
None
None
SECTION
944.40
944.47
951.22
CHARGED
OFFENSES
Escape
Contraband in state
correctional institution
Contraband in county
detention facilities
CATEGORY 1
None
None
None
CATEGORY 2
None
Possession of less than 20
grams cannabis 893.13(6)(b)
Possession of less than 20
grams cannabis 893.13(6)(b)