In re Standard Jury Instructions in Criminal Cases—report Number

Decision Date05 December 2013
Docket NumberNo. SC12–1601.,SC12–1601.
PartiesIn re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2012–04.
CourtFlorida Supreme Court

OPINION TEXT STARTS HEREOriginal Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

Joseph A. Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, Jacqueline Hogan Scola, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Miami, FL; and Bart Schneider, Senior Attorney, Office of State Courts Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) proposes several new standard criminal jury instructions and amendments to several existing standard criminal jury instructions. We have jurisdiction. Seeart. V, § 2(a), Fla. Const. We authorizethe new and amended instructions for publication and use, except as explained below.

The Committee asks the Court to authorize for publication and use new criminal jury instructions 2.14 (Pro Se Defendant); 3.6( o) (Transferred Intent); 8.22 (Written Threat to Kill); 11.10(g) (Lewd or Lascivious Exhibition by a Detainee); 14.8 (Unlawful Possession of a Stolen Credit/Debit Card); 21.9 (Retaliating Against a Witness); 21.10 (Tampering With a Witness); 21.11 (Harassing a Witness); 21.12 (Corruption by Harm/Public Servant); 21.13 (Depriving an Officer of Protection); 28.4(a) (Leaving the Scene (Attended Property Damage Only)); 28.12 (Operating a Motor Vehicle Carelessly Or Negligently Causing Serious Bodily Injury or Death Without Having a Driver's License or While License was Cancelled, Suspended, or Revoked); 29.13(c) (Sexual Activity With an Animal); and 29.17 (Open House Party Causing Death or Serious Bodily Injury). The Committee also proposes amending existing criminal jury instructions 10.1 (Carrying a Concealed Weapon/Firearm); 10.5 (Improper Exhibition of a Firearm/Dangerous Weapon); 10.15 (Possession of a Firearm By a Convicted Felon); 12.1 (Arson—First Degree); 16.11 (Possession of Material Involving Child Sexual Conduct); 19.3–19.6 (Unlawful Compensation to/by Public Servant); 20.19 (Organized Fraud); and 28.3 (DUI Causing Serious Bodily Injury).1

Before filing its report with the Court, the Committee published these proposals for comment. One comment was received by the Committee in response to proposed instruction 28.3. The Committee discussed the comment but did not make any changes to the proposal. The Court did not publish the proposals after they were filed.

In the Committee's proposals for new instruction 21.10 (Tampering With a Witness) and new instruction 21.11 (Harassing a Witness), the statutory phrase “or employee” appears to have been inadvertently omitted from the language which purportedly tracks section 914.22(6)(b), Florida Statutes (2012). Therefore, we insert the statutory phrase “or employee” in both instructions 21.10 and 21.11 as reflected in the appendix to this opinion.

Further, in the Committee's proposal for instruction 29.17 (Open House Party Causing Death or Serious Bodily Injury), there is an erroneous citation to section 816.015, Florida Statutes (2012), in the definitions section of the jury instruction. The citation should be to section 856.015, which involves open house parties. Therefore, we correct the citation as reflected in the appendix to this opinion.

Accordingly, we hereby authorize for publication and use the instructions as they appear in the appendix to this opinion.2 In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

2.14 PRO SE DEFENDANT

(Defendant) has the right to be represented by an attorney in this trial, as do all criminal defendants in this country. [He][She] has decided instead to exercise [his][her] constitutional right to act as [his][her] own attorney in this case. You should not allow that decision to affect your verdict.

Comment

This instruction was adopted in 2013.

3.6( o) TRANSFERRED INTENT

If a person intends to [hit] [strike] [shoot] a person, but instead [hits] [strikes] [shoots] a different person, the law transfers the intent to [hit] [strike] [shoot] from the person who was aimed at to the person who was actually [hit] [struck] [shot].

Comments

See State v. Brady, 745 So.2d 954 (Fla.1999) and Nelson v. State, 853 So.2d 563 (Fla. 4th DCA 2003).

This instruction was adopted in 2013.

8.22 WRITTEN THREAT TO [KILL] [DO BODILY INJURY]

§ 836.10, Fla. Stat.

To prove the crime of Written Threat to [Kill] [Do Bodily Injury], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [wrote] [composed] a[n] [letter] [electronic communication] [inscribed communication].

2. The [letter] [electronic communication] [inscribed communication] contained a threat to [kill] [do bodily injury to] [ (victim) ] [any member of (victim's) family].

3. (Defendant) [sent] [procured the sending of] that [letter] [electronic communication] [inscribed communication] to (victim).

Give if applicable.

It is not necessary for the State to prove that the [letter] [electronic communication] [inscribed communication] had been signed.

Definitions. Give if applicable.

An “inscribed communication” is a communication that is written or printed.

To “procure” means to persuade, induce, prevail upon, or cause a person to do something.

Lesser Included Offenses

WRITTEN THREAT TO KILL OR DO BODILY INJURY—836.10
CATEGORY ONE
CATEGORY TWO
FLA. STAT.
INS. NO.
None
Attempt
777.04(1)
5.1
Assault
784.011
8.1

Comments

It is not necessary for the State to prove the defendant had the actual intent to do harm or the ability to carry out the threat. Saidi v. State, 845 So.2d 1022 (Fla. 5th DCA 2003).

The name of (victim) in elements 2 and 3 must be the same person.

There is no statutory definition for the term “electronic communication.” In the absence of case law, trial judges will have to fashion their own definition, perhaps by looking at Fla. Stat. 934.02(12) and Fla. Stat. 668.602(7). The definition for inscribed communication comes from the dictionary definition of the word inscribed. The definition of procure comes from the manslaughter standard instruction.

This instruction was adopted in 2013.

10.1 CARRYING A CONCEALED [WEAPON]S[FIREARM]

§ 790.01, Fla. Stat.

To prove the crime of(crime charged)Carrying a Concealed [Weapon] [Firearm], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly carried on or about [his][her] person(weapon alleged).[a firearm] [a weapon] [an electric weapon or device].

2. The(weapon alleged)[firearm] [weapon] [electric weapon or device] was concealed from the ordinary sight of another person.

Ensor v. State, 403 So.2d 349 (Fla.1981); Dorelus v. State, 747 So.2d 368 (Fla.1999).

The term “on or about [his][her] person” means physically on the person or readily accessible to [him][her].

The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. A [firearm] [weapon] need not be completely hidden for you to find that it was concealed. However, a [firearm] [weapon] is not concealed if, although not fully exposed, its status as a [firearm] [weapon] is detectable by ordinary observation.

Definition. Give as applicable. § 790.001, Fla. Stat. A “concealed [weapon] [electric weapon or device] [firearm] is legally defined as (adapt from § 790.001, Fla.Stat., as required by allegations).

A “concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person.

R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

“Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

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;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is ( insert definition in 790.001(1), Fla. Stat.] [A destructive device is ( insert definition in § 790.001(4), Fla. Stat.].

Lesser Included Offenses

CARRYING A CONCEALED WEAPON OR FIREARM—790.01(1) and (2)
CATEGORY ONE
CATEGORY TWO
...

To continue reading

Request your trial
17 cases
  • In re Standard Jury Instructions in Criminal Cases—Report 2018-09
    • United States
    • Florida Supreme Court
    • 4 Enero 2019
    ...instruction was adopted in 1992 and amended in 1998 [723 So.2d 123], 2009 [6 So.3d 574], 2013 [131 So.3d 720],and 2016 [192 So.3d 1190], and 2019.28.4 LEAVING THE SCENE OF A CRASH INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY]§ 316.027(2), Fla. Stat.; § 316.062, Fla. Stat. To prove the ......
  • In re Standard Jury Instructions in Criminal Cases—Report 2017-05
    • United States
    • Florida Supreme Court
    • 8 Febrero 2018
    ... ... § 316.062, Fla. Stat. "Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive. "Reasonable assistance" includes carrying or making ... ...
  • In re Standard Jury Instructions in Criminal Cases—Report No. 2015–07, SC15–1867.
    • United States
    • Florida Supreme Court
    • 12 Mayo 2016
    ...So.3d 1202 CommentThis instruction was adopted in 1992 and amended in 1998 [723 So.2d 123], 2009 [6 So.3d 574], and 2013 [131 So.3d 720], and 2016.28.4 LEAVING THE SCENE OF A CRASH INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY]§ 316.027(12), Fla. Stat.; § 316.062, Fla. Stat.To prove the......
  • In re Standard Jury Instructions in Criminal Cases—Report No. 2015–06, SC15–1872.
    • United States
    • Florida Supreme Court
    • 23 Junio 2016
    ...firearm or whether the state must prove the firearm was not an antique firearm.This instruction was adopted in 1981 and amended in 2013 [131 So.3d 720] and 2016.11.17(c) TRAVELING TO MEET A MINOR§ 847.0135(4)(a), Fla. Stat.To prove the crime of Traveling to Meet a Minor, the State must prov......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT