In re Standard Jury Instructions in Criminal Cases—Report 2017-01, SC17–1438
| Decision Date | 12 October 2017 |
| Docket Number | No. SC17–1438,SC17–1438 |
| Citation | 228 So.3d 87 (Mem) |
| Parties | IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017–01 |
| 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
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. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following standard criminal jury instructions: 3.6(o) (Transferred Intent); 11.17(a) (); 11.17(b) (); 11.17(c) (Traveling to Meet a Minor); and 11.17(d) (). The Committee published its proposals for comment. No comments were received by the Committee. The Court did not publish the proposals after they were filed.
Having considered the Committee's report, we amend the standard jury instructions as proposed by the Committee, with a purely technical correction to instruction 3.6(o), and authorize them for publication and use.1
We note the following significant changes to the jury instructions as amended. First, with regard to Instruction 3.6(o), the phrase "but instead" is replaced with "and in the process," the word "the" is replaced with "any," and the word "actually" is removed from the instruction. The Committee explains that these changes are made so that the instruction will be suitable for use in all cases in which it applies. The Committee has also updated the Comment section of the instruction with relevant case law pertaining to the doctrine of transferred intent.
Next, with regard to Instructions 11.17(a), (b), (c), and (d), the crime of Unlawful Use of a Two–Way Communications Device is added as a category two lesser included offense. With regard to Instruction 11.17(b), the phrase "Legal Guardian, or Custodian" is added to the first sentence of the instruction to mirror its title and the language of section 847.0135(3)(b), Florida Statutes (2017).
The amended 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, 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.
APPENDIX
3.6(o ) TRANSFERRED INTENT
If a person intends to [hit] [strike] [shoot] a person, but instead and in the process [hits] [strikes] [shoots] a different person, the law transfers the intent to [hit] [strike] [shoot] from the person who was aimed at to the any person who was actually[hit] [struck] [shot].
Comments
See State v. Brady , 745 So.2d 954 (Fla. 1999) and Nelson v. State , 853 So.2d 563 (Fla. 4th DCA 2003). Also, in Mordica v. State , 618 So.2d 301, 303 (Fla. 1st DCA 1993), the First District rejected the contention that the doctrine of transferred intent is applicable only where the defendant entirely misses the intended victim and hits the unintended victim.
The doctrine of transferred intent may not apply to the crime of Attempted First Degree Murder. See Bell v. State , 768 So.2d 22 (Fla. 1st DCA 2000) (); but see Frederick v. State , 93 So.3d 445 (Fla. 4th DCA 2012) ().
This instruction was adopted in 2013 and amended in 2017.
11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES
To prove the crime of Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following three elements beyond a reasonable doubt:
The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.
Enhanced penalty. Give if applicable.
If you find (defendant) guilty of Soliciting a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State proved beyond a reasonable doubt that during the contact, (defendant) misrepresented [his] [her] age to [ (victim) ] [the person believed by the defendant to be a child].
Definitions.
A "child" means any person, whose identity is known or unknown, less than 18 years of age.
Give the following definitions if applicable. Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct. See § 847.001, Fla. Stat.
"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."
"Sadomasochistic abuse" means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm upon another or receiving such harm oneself.
"Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.
Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).
"An object" includes a finger.
"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.
"Sexual bestiality" means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.
"Authority figure" means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.
"School" means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term "school" does not include facilities dedicated exclusively to the education of adults.If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for "private school" or "voluntary prekindergarten education program" or "early learning program" or "public school as described in s. 402.3025(1)" or "the Florida School for the Deaf and the Blind" or the "Florida Virtual School" or the "K–8 Virtual School."
"Student" means a person younger than 18 years of age who is enrolled at a school.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
SOLICITING A [CHILD] [PERSON BELIEVED BY THE
DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL
CONDUCT USING COMPUTER SERVICES OR DEVICES —
847.0135(3)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
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