In re Standard Jury Instructions in Criminal Cases—Report 2016-06

Decision Date09 February 2017
Docket NumberNo. SC16–1185,SC16–1185
Citation217 So.3d 965 (Mem)
Parties IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2016–06.
CourtFlorida Supreme Court

Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Barton Neil 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 for publication and use the amended and newly adopted standard instructions. We have jurisdiction. See Art. V, § 2(a), Fla. Const.

The Committee proposes amending existing standard instructions 10.9 (False Reports of Bombing); 10.10 (False Reports of Bombing State–Owned Property); 13.1 (Burglary); and 21.7 (Giving False Name or Identification to Law Enforcement Officer Adversely Affecting Another). In addition, the Committee proposes new instruction 8.22(a) (Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official] ). Following publication of its proposals by the Committee, two comments were received by the Committee, from the Florida Public Defenders Association and the Florida Association of Criminal Defense Lawyers, pertaining to the proposals to create new instruction 8.22(a) and to amend instructions 10.9 and 10.10. The Committee did not make any changes to its proposals. After the Committee filed its report, the Court did not publish the proposals. The Court authorizes instructions 13.1 and 21.7 as proposed, and authorizes instructions 8.22(a), 10.9, and 10.10, with modifications. The more significant amendments to the instructions are discussed below.

New instruction 8.22(a) (Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official] ), instructs upon the new misdemeanor crime in section 836.12(2), Florida Statutes (2016), enacted in chapter 2016–156, section 3, Laws of Florida. The new subsection provides as follows:

Any person who threatens a law enforcement officer, a state attorney, an assistant state attorney, a firefighter, a judge, or an elected official, or a family member of such persons, with death or serious bodily harm commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 836.12(2), Fla. Stat. (2016). With regard to instruction 8.22(a), upon consideration of the comments received by the Committee and the Committee's response, we authorize instruction 8.22(a), and add a provision to instruct jurors that the State must prove that the defendant knew that the person threatened was within the class of protected persons identified in the statute, including "law enforcement officer," "state attorney," "assistant state attorney," "firefighter," "judge," "elected official," or "family member" of such persons.

Instruction 10.9, amended in light of the 2016 amendments to the statutory definition of the crime, in section 790.163(1), Florida Statutes (2016), see ch. 2016–156, § 1, Laws of Fla., is retitled "False Reports Concerning the [Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive, or a Weapon of Mass Destruction] [Use of Firearms in a Violent Manner Against a Person]." Instruction 10.10, also amended in light of the 2016 amendments to the statutory definition of the crime, in section 790.164, Florida Statutes (2016), see ch. 2016–156, § 2, Laws of Fla., is retitled "False Reports Concerning [The Placing or Planting of a Bomb, Dynamite, Other Deadly Explosive, or a Weapon of Mass Destruction] [An Act of Arson or Other Violence] To Property Owned by the State [or Any Political Subdivision]." In both instructions 10.9 and 10.10, consistent with sections 790.163(3) and 790.164(3), respectively, and upon review of the comments received by the Committee and the Committee's response thereto, the Court has replaced the Committee's "inference provision" with the following language: "Proof that a person knowingly made a false report is prima facie evidence of that person's intent to deceive, mislead, or otherwise misinform any person."

Having considered the Committee's report, jury instructions 8.22(a), 10.9, and 10.10, as modified by the Court, and instructions 13.1 and 21.7, as proposed by the Committee, and 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, and POLSTON, JJ., concur.

LAWSON, J., did not participate.

APPENDIX

8.22(a) THREAT TO [KILL] [DO SERIOUS BODILY HARM TO] A [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC OFFICIAL]

§ 836.12(2), Fla. Stat.

To prove the crime of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) threatened to [kill] [do serious bodily harm to] (person receiving threat).
2. At the time, (person receiving threat) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [elected official].
3. (Defendant) knew (victim) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [elected official].

Definitions. Give if applicable.

§ 836.12(1)(a), Fla. Stat.

"Family member" means:

1. An individual related to another individual by blood or marriage;
or
2. An individual who stands in loco parentis to another individual. "In loco parentis" means in place of a parent.

§ 836.12(1)(b), Fla. Stat.

"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

Definitions for part-time and auxiliary law enforcement officers can be found in § 943.10, Fla. Stat.

"Law enforcement officer" includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

§ 836.12(1)(b)2, Fla. Stat.

"Law enforcement officer" includes a person who is employed by the Federal Government as a full-time law enforcement officer as defined by federal law, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to that prescribed for state law enforcement officers.

§ 633.102(9), Fla. Stat.

"Firefighter" means an individual who holds a current and valid Firefighter Certificate of Compliance or Special Certificate of Compliance issued by the Division of State Fire Marshal under Florida law.

Give if applicable if the jury finds the defendant guilty of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official]. § 836.12(3), Fla. Stat.

Now that you have found the defendant guilty of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of the same crime.

"Conviction" means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offenses

                THREAT TO [KILL] [DO SERIOUS BODILY HARM TO] A
                [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC
                OFFICIAL] — 836.12(2)
                CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
                None
                Assault on a law 784.07(2)(a)* 8.10*
                enforcement officer*
                Assault 784.011 8.11
                Attempt 777.04(1) 5.1
                

Comments

*It is not clear whether Assault on a Law Enforcement Officer can be a lesser included offense of § 836.12(2), Fla. Stat., because both crimes are first degree misdemeanors. Practitioners may wish to review Sanders v. State , 944 So.2d 203 (Fla. 2006) and Carle v. State , 983 So.2d 693 (Fla. 1st DCA 2008).

This instruction can be used for the felony crime in § 836.12(3), Fla. Stat., which is based on a prior conviction for § 836.12(2), Fla. Stat. If the felony is charged, it is error to inform the jury of the prior conviction until the verdict on the underlying crime is rendered. Therefore, if the information or indictment contains an allegation of a prior conviction, that allegation must not be read to the jury before the verdict and the information or indictment must not be given to the jurors before the verdict. If the defendant is found guilty, the historical fact of a prior conviction shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh , 754 So.2d 691 (Fla. 2000).

This instruction was adopted in 2017.

10.9 FALSE...

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