In re Standard Jury Instructions in Criminal Cases—Report 2017-10, SC17-2263
| Decision Date | 27 September 2018 |
| Docket Number | No. SC17-2263,SC17-2263 |
| Parties | IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-10. |
| Court | Florida Supreme Court |
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, Responding with Comments
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction and authorize the amendments to the instructions for publication and use. See art. V, § 2(a), Fla. Const.
The Committee proposes amending standard jury instructions 10.1 (Carrying a Concealed [Weapon] [Firearm] ), 10.5 (Improper Exhibition of a [Weapon] [Firearm] ), and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ), and new instruction 10.6(b) ().1
The Committee published its proposals pertaining to instructions 10.1, 10.5, and 10.6(b) in the January 1, 2017, issue of The Florida Bar News. The Committee received a comment from the Florida Association of Criminal Defense Lawyers (FACDL) and the Florida Public Defender Association (FPDA) pertaining to the proposals. The proposal to amend instruction 13.5 was published in the October 1, 2017, edition of The Florida Bar News. The Committee's proposals subsequently were published by the Court, appearing in the February 1, 2018, edition of The Florida Bar News. FPDA filed a comment with the Court pertaining to the Committee's proposal to amend instruction 13.5. The more significant amendments to the instructions are discussed below.
Criminal jury instruction 10.1 (Carrying a Concealed [Weapon] [Firearm] ) is amended to include a third element that requires the State to prove that the defendant did not have a license to carry a concealed weapon or firearm at the time he or she did the carrying. The Committee explains that the reason for the amendment is because chapter 2015-44, section 1, Laws of Florida, deleted licensure from section 790.01(3), Florida Statutes (2016), and added the language "a person who is not licensed under section 790.06" into the text containing the elements of carrying a concealed weapon and carrying a concealed firearm under sections 790.01(1) and (2), Florida Statutes (2016), respectively. Additionally, chapter 2015-44, section 1, Laws of Florida, changed the name of section 790.01, Florida Statutes (2016), to "Unlicensed Carrying of Concealed Weapons or Concealed Firearms." (Emphasis added.)
Amended instruction 10.1 also includes alternative burdens of proof, depending upon whether the State or the defendant carries the burden of persuasion. The term "slungshot" is deleted from the definition of "concealed weapon" in section 790.001(3)(a), Florida Statutes (2017), because that type of weapon was removed from the statute by chapter 2016-106, section 2, Laws of Florida. Finally, the statutory citation in the definition section of the instruction, pertaining to "firearm," is corrected to cite to section 790.001(6), Florida Statutes (2017), rather than subsection (2).
Instructions 10.5 (Improper Exhibition of a [Weapon] [Firearm] ) and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ) are amended to exclude the word "closed" in the phrase "closed common pocketknife" due to conflict in the district courts of appeal regarding whether an open common pocketknife is a weapon pursuant to the definition provided under section 790.001(13), Florida Statutes (2017).
New standard criminal jury instruction 10.6(b) () is added because there is no existing instruction for the offense defined in section 790.15(3), Florida Statutes (2017). The instruction includes two elements: (1) the defendant is the driver or owner of the vehicle; and (2) the defendant knowingly directs another to discharge a firearm from that vehicle. Additionally, after consideration of a comment submitted by FPDA, the definition section of the instruction reads "the term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of another crime." This language is included in response to the statutory exemption in section 790.001(6), Florida Statutes (2017), to exclude antique firearms from the statutory definition of firearms unless the antique firearm is used in the commission of "a crime." The Committee reasons that providing the words "another crime" rather than "a crime" can prevent the potential for courts to treat a discharge of a firearm in the same manner as a firearm offense that consisted solely of carrying or possessing a firearm.
Having considered the Committee's report and the comments submitted to the Committee and filed with the Court, and the Committee's response to the comments, the amended and new criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.2 New language is indicated by underlining; 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.
APPENDIX
10.1 UNLICENSED CARRYING A CONCEALED [WEAPON] [FIREARM]
§ 790.01, Fla. Stat.
To prove the crime ofUnlicensed Carrying a Concealed [Weapon] [Firearm], the State must prove the followingtwothree *elements beyond a reasonable doubt:
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.
§ 790.001(3)(a), Fla. Stat.
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.
§ 790.001(14), Fla. Stat.
"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.
§ 790.001(6), Fla. Stat.
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]. [A destructive device is(insert definition in § 790.001(4), Fla. Stat.].
State of emergency. § 790.01(3)(a), Fla. Stat. The statute and case law are silent as to: (1) which party bears the burden of persuasion of the 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 opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
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Jackson v. State
...a license to carry a concealed weapon or firearm at the time he or she did the carrying." In re Standard Jury Instructions in Criminal Cases – Report 2017-10 , 253 So. 3d 1040, 1041 (Fla. 2018). Instruction 10.1 now provides:To prove the crime of Unlicensed Carrying a Concealed [Weapon] [Fi......