In re Standard Jury Instructions in Criminal Cases—Report No. 2015–03, SC15–1170.

• Decision Date: 07 April 2016
• Docket Number: No. SC15–1170.,SC15–1170.
• Citation: 191 So.3d 291 (Mem)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–03.
• Court: Florida Supreme Court

191 So.3d 291 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–03.

No. SC15–1170.

Supreme Court of Florida.

April 7, 2016.

Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, FL; Judge Jerri Lynn Collins, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL; and Barton Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing standard criminal jury instructions: 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Purchase, Manufacture, or Deliver a Controlled Substance); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams of a Controlled Substance); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.7 (Possession of a Controlled Substance); 25.8 (Obtaining a Controlled Substance by Fraud, Etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in [Morphine] [Opium] [Hydromorphone] [Heroin] [ (Specified Substance Alleged) ] ); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in Methaqualone); 25.14 (Use or Possession with Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program] ); 25.20 (Possession of Contraband [In] [Upon the Grounds of] a State Correctional Institution); and 25.21 ( [Introduction] [Removal] of Contraband [Into] [From] a State Correctional Institution). The Committee also proposes the following new jury instructions: 25.11(a) (Trafficking in Hydrocodone); 25.11(b) (Trafficking in Oxycodone); 25.13(a) (Trafficking in [Amphetamine] [Methamphetamine] ); 25.13(b) (Trafficking in Flunitrazepam); 25.13(c) (Trafficking in [GHB] [GBL] [1,4–Butanediol] ); 25.13(d) (Trafficking in Phenethylamines (Includes MDMA)); and 25.13(e) (Trafficking in LSD). The Committee published its proposals in The Florida Bar News. One comment was received by the Committee. The Court did not publish the proposals after they were filed.

Having considered the Committee's report and the comment submitted to the Committee, we amend the standard jury instructions as proposed by the Committee, with one exception, and authorize them for publication and use. While the Committee expressed the belief that the existing explanation of constructive possession in the majority of instructions they sought to amend was deficient, the Court is unaware of any case law that has held the current explanation of constructive possession deficient or that has redefined constructive possession from that in the existing drug trafficking jury instructions. For that reason, we decline to alter the explanation of constructive possession in the jury instructions herein under consideration.

191 So.3d 293

The new and amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.¹ New language is indicated by underlining, and deleted language is indicated by struck-through type. 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. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE

§ 893.13(1)(a) and (2)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following (applicable number) three elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

2. The substance was (specific substance alleged).

Give if possession is charged.

3. (Defendant) had knowledge of the presence of the substance.

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight. Give if applicable.

3. or 4. If you find that (defendant) is guilty of Delivery of Cannabis, you must then determine if the State proved beyond a reasonable doubt that theThe cannabis weighed more than 20 grams.

Definitions. Give as applicable.

Cannabis. §§§ 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.

See Comment section for medical marijuana.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

191 So.3d 294

Sell.

“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

Manufacture. § 893.02(135)(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. propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable.

The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver. § 893.02(56), 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.

Possession.

There are two ways to exercise control types of possession: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a substance that was in a place [he] [she] did not control,

191 So.3d 295

the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

Give if applicable. § 893.02(19), Fla. Stat.

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Give if applicable. See McMillon v. State, 813 So.2d 56 (Fla.2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1 ^stst DCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4 ^thth DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the ability power and intention to control it.

If (defendant) did...