In re Standard Jury Instructions in Criminal Cases-Report 2011-01
| Decision Date | 08 September 2011 |
| Docket Number | No. SC11–462.,SC11–462. |
| Citation | 73 So.3d 136 |
| Parties | In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2011–01. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HEREOriginal Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.Judge Samantha L. Ward, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing amendments to a number of standard criminal jury instructions pertaining to fleeing a law enforcement officer and aggravation of a felony. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee's proposals amend the standard criminal jury instructions pertaining to fleeing a law enforcement officer (instructions 28.6–28.85) and aggravation of a felony (instructions 3.3(a)-(c), 3.3(e)-(f)).1
The Committee's proposals pertaining to fleeing a law enforcement officer were published in the January 15, 2011, edition of The Florida Bar News. The proposed amendments pertaining to the aggravation of a felony were published in the January 1, 2011, edition of The Florida Bar News. No comments were received with respect to either publication. Upon consideration of the proposals, we hereby authorize for publication and use the amended instructions, with a minor modification to instruction 3.3(e), Aggravation of a Felony by Wearing a Hood, Mask, or Other Device to Conceal Identity, as discussed below.
The Committee proposes amending standard jury instruction 3.3(e) to include the requisite burden of persuasion, as well as a note that contains a brief commentary and a citation to Wright v. State, 810 So.2d 873 (Fla.2002). We modify the Committee's proposal by adding the word “personally” to the text of the instruction. Consistent with the Committee's proposed amendments to instructions 3.3(a) and 3.3(b), the addition of the word clarifies that the aggravating offense must be personally committed by a defendant.
Having considered the Committee's report, we hereby authorize for publication and use the instructions as they appear in the attached appendix.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 additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any 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.
APPENDIX
28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
§ 316.1935(1), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in Florida.
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 directed 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. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.
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
No lesser included offenses have been identified for this offense.
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 and amended in 2008 [976 So.2d 1081] and 2011.
28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated)
§ 316.1935(2), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in Florida.
Give 2a or 2b as applicable.
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.
a. willfully refused or failed to stop the vehicle in compliance with the order
b. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the 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
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 and amended in 2008 [976 So.2d 1081] and 2011.
28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER
(Siren and Lights Activated with High Speed or Reckless Driving)
§ 316.1935(3)(a), Fla. Stat.
To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or highway in Florida.
Give 2a or 2b as applicable
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.
a. willfully refused or failed to stop the vehicle in compliance with the order.
b. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the 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.
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
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 2000 and amended in 2008 [976 So.2d 1081] and 2011.
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)
§ 316.1935(3)(b), Fla....
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