In re Standard Jury Instructions in Criminal Cases—Report 2017-12

• Decision Date: 12 July 2018
• Docket Number: No. SC17-2266,SC17-2266
• Citation: 249 So.3d 554 (Mem)
• Court: Florida Supreme Court
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-12.

249 So.3d 554 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-12.

No. SC17-2266

Supreme Court of Florida.

[July 12, 2018]

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

PER CURIAM.

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.Seeart. V, § 2(a), Fla. Const.

The Committee proposes amending the following standard criminal jury instructions pertaining to the offenses of failure to comply with reporting requirements for sexual offenders and sexual predators: 11.14 (Failure by a Sexual Offender to Comply with Registration Requirements (Initially Register, Report, or Provide Registration Items) );11.14(b)(Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Comply with Registration of [Employment][Enrollment][Volunteering][Carrying on a Vocation] at an Institution of Higher Learning));11.14(e)(Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Change of Residence to Another State or Jurisdiction or Country));11.14(g)(Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Twice a Year/Failure to Report Quarterly/Providing False Information));11.14(h)(Sexual Offender Definitions);11.15(b)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Provide Required Information));11.15(c)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home));11.15(d)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of [Enrollment][Employment][Volunteering][Carrying on a Vocation] at an Institution of Higher Education));11.15(e)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report to Department of Highway Safety and Motor Vehicles));11.15(h)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Respond to Address Verification Correspondence));11.15(i)(Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report Intent to Move to Another State, Jurisdiction, or Country)); and 11.15(1)(Sexual Predator Definitions).

All of the proposals were published by the Committee in The Florida Bar News .No comments were received by the Committee.After the Committee filed its report, the Court did not publish the Committee's proposals for comment.The changes to the jury instructions for sexual offenders and sexual predators' failure to comply with reporting requirements are made in response to statutory changes by the Legislature in chapter 2016-104, sections 1 and 3, and chapter 2017-107,sections 1-2, Laws of Florida, amendingsections 943.0435and775.021, Florida Statutes.

Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use.¹New language is indicated by underlining, and deleted language is indicated by struck-through type.We 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.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.The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

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

Attachment

APPENDIX

11.14 FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

(Initially Register, Report, or Provide Registration Items)

§ 943.0435(2)(a)(c), Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1.(Defendant)

a. 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 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-the-record colloquy with the defendant.SeeBrown v. State, 719 So.2d 882(Fla.1998);Johnson v. State, 842 So.2d 228(Fla. 1st DCA2003).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, 3e, or 3f as applicable.

3.(Defendant)

a. knowingly failed to register in person at an office of the sheriff of(name of county)County within 48 hours after establishing permanent, temporary, or transient residence within this state.b. knowingly failed to report in person at an office of the sheriff of(name of county)County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections][custody of a private correctional facility].

c. knowingly failed to register in person at an office of the sheriff of(name of county)County within 48 hours after having been convicted by a court in that county of an offense requiring registration.

d. 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).]

e. knowingly failed to report in person at an office of the sheriff of(name of county)within 48 hours after any change in vehicles owned to report those vehicle information changes.

f. knowingly failed to provide an office of the sheriff of(name of county)with(insert information, such as criminal and corrections records, nonprivileged personnel and treatment records, and evidentiary genetic markers), which [he][she] knew had been deemed necessary by the Department of Law Enforcement and which was available.

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of production.SeeBarnes v. State, 108 So.3d 700(Fla. 1st DCA2013).

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that(defendant)attempted to comply but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is 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 an affirmative defense 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.

If burden of persuasion is on the defendant:

If you find that(defendant)proved(insert appropriate burden of persuasion)that the office of the sheriff misinformed [him][her] or otherwise prevented [him][her] from complying with the registration requirements, you should find [him][her] not guilty.If the defendant did not prove(insert appropriate burden of persuasion)that the office of the sheriff misinformed [him][her] or otherwise prevented [him][her] from complying, you should find [him][her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform(defendant)or did not otherwise prevent [him][her] from complying with the registration requirements, you should find(defendant)guilty, if all of the elements of the charge have been proven beyond a reasonable doubt.However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed(defendant)or otherwise prevented [him][her] from complying with the registration requirements, you should find [him][her] not guilty.

Definitions.See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

In some cases, a special instruction will be needed if the sexual offender initially reported but then failed to properly report a change in the information required to be provided pursuant to § 943.0435(2)(a)2., Fla. Stat.

This...