In re Standard Jury Instructions in Criminal Cases—Report 2019-09
| Citation | 288 So.3d 540 (Mem) |
| Decision Date | 16 January 2020 |
| Docket Number | No. SC19-1696,SC19-1696 |
| Parties | IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-09. |
| Court | United States State Supreme Court of Florida |
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 standard criminal jury instructions 11.10(g) (), 14.1 (Theft), 21.16 (Falsely Personating an Officer), 25.7 (Possession of a Controlled Substance), and 25.14 (Use or Possession with Intent to Use Drug Paraphernalia). The Committee published the proposals in The Florida Bar News ; no comments were received by the Committee. After the Committee filed its report, the Court did not publish the proposals for comment.
Having considered the Committee's report, we authorize the proposed amendments to the instructions for publication and use as proposed. Some of the more significant changes to the instructions are discussed below.
First, instruction 11.10(g) is amended based upon the Legislature's recent amendment to section 800.09, Florida Statutes (2019), which expanded the offense to include commission of lewd or lascivious exhibition in a county detention facility. See ch. 2019-167, § 34, Laws of Fla. Thus, "county detention facility" is added as an alternative where the defendant was detained, and the definition for that term, as defined by section 951.23(1), Florida Statutes (2019), is added. In addition, the phrase "any person employed at or performing contractual services for a county detention facility" is added to the definition of "employee," based upon the addition of section 800.09(1)(a) 4.
Next, the theft instruction, 14.1, is amended based upon the change to the grand theft statute, section 812.014(2)(c), Florida Statutes (2019), which changed the value of the property stolen from $300 or more to $750 or more, and added the phrase "that, at the time of the taking, was installed in a building for the purpose of fire prevention and control" to the definition of "fire extinguisher." See ch. 2019-167, § 36, Laws of Fla.
Instruction 21.16 is amended also based upon recent legislation. Under chapter 2019-22, section 2, Laws of Florida, the Legislature added "a school guardian as described in s. 30.15(1)(k)" and "a security officer licensed under chapter 493" to the list of impersonated individuals covered by the crime of Falsely Personating an Officer and removed the term "watchman." In addition, "officers of the Department of Environmental Protection" are also included in the list. See ch. 2019-141, § 14, Laws of Fla. Instruction 21.16 is amended accordingly.
The 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. 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.
APPENDIX
11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY
§ 800.09, Fla. Stat.
To prove the crime of Lewd or Lascivious Exhibition by a Detainee in the Presence of an Employee of a Facility, the State must prove the following three elements beyond a reasonable doubt:
Give as applicable.
Definitions. Give as applicable.
§ 944.02(8), Fla. Stat.
A "state correctional institution" is any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the Department of Corrections.
§ 944.710(3), Fla. Stat.
A "private correctional facility" is any facility, which is not operated by the Department of Corrections, for the incarceration of adults or juveniles who have been sentenced by a court and committed to the custody of the Department of Corrections.
A "county detention facility" is a county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either a felony or a misdemeanor.
§ 800.09(1)(a), Fla. Stat.
"Employee" means [any person employed by or performing contractual services for a public or private entity operating a state correctional institution or a private correctional facility] or[ any person employed by or performing contractual services for the corporation operating the prison industry enhancement programs [or the correctional work programs under part II of chapter 946]] [any person employed at or performing contractual services for a county detention facility] .[The term also includesany person who is a parole examiner with theParole Commission Florida Commission on Offender Review .].
The words "lewd" and "lascivious" mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.
§ 800.04(1)(a), Fla. Stat.
"Sexual activity" means the 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 activity does not include an act done for a bona fide medical purpose.
Give if applicable.
"Bona fide" means genuine.
Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).
The definition of "an object" includes a finger.
"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 on another or receiving such harm oneself.
"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.
§ 800.04(1)(d), Fla. Stat.
"Victim" means a person upon whom the acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer.
See State v. Werner, 609 So.2d 585 (Fla. 1992).
"In the presence of" means that a victim saw, heard, or otherwise sensed that the act was taking place.
§ 800.04(2), Fla. Stat.
Neither a victim's lack of chastity nor a victim's consent is a defense to the crime charged.
There are statutory definitions of "sadomasochistic abuse" and "sexual bestiality" in § 827.071, Fla. Stat., that differ from the statutory definitions in § 847.001, Fla. Stat. As ofJune 2018September 2019, there is no case law that decides which definition applies for a violation of § 800.09, Fla. Stat.
This instruction was adopted in 2013 and amended in 2015 [176 So.3d 938],and 2018 [257 So.3d 370], and 2020.
§ 812.014, Fla. Stat.
To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt:
Degrees. Give as applicable.
If you find the defendant guilty oftT heft, you must also determine if the State has proved beyond a reasonable doubt whether:
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