In re Standard Jury Instructions in Criminal Cases—report Number

• Decision Date: 10 July 2014
• Docket Number: No. SC13–2383.,SC13–2383.
• Citation: 143 So.3d 893
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–07.
• Court: Florida Supreme Court

143 So.3d 893

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–07.

No. SC13–2383.

Supreme Court of Florida.

July 10, 2014.

OPINION TEXT STARTS HEREOriginal Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

Honorable Joseph Anthony Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard criminal 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's proposed changes affect the following existing standard jury instructions: ¹ 2.7, Closing Argument; 3.6(k), Duress or Necessity; 21.1, Resisting Officer with Violence; 21.2, Resisting Officer Without Violence; 21.4, False Report of Commission of a Crime; 21.5, Giving False Information Concerning Commission of a Crime; 21.6, Giving False Information Concerning Commission of a Capital Felony; 22.5, Setting Up, Conducting, or Promoting a Lottery; 29.13, Aggravated Animal Cruelty; and 29.13(a), Animal Cruelty. The Committee also proposes two new instructions: 8.23, Extortion, and 25.15(a), Retail Sale of Drug Paraphernalia. Prior to filing its report with the Court, the Committee published its proposals in the November 1, 2013, edition of The Florida Bar News and received comments. After considering the comments it received, the Committee made some changes to its proposals before filing its report with the Court. Having considered the Committee's report, we authorize the amended instructions for publication and use with certain changes or exceptions as indicated below.

The Committee proposes an amendment to the “Note to Judge” within Instruction 21.1, Resisting Officer with Violence, which currently provides: “A special instruction incorporating § 776.051(1), Fla. Stat. should be given when the defense claims the officer was acting unlawfully.” ² The Committee proposes that the Note to Judge be amended to restrict the note's application to cases of resisting arrest. The Committee's proposal would amend the note to read: “A special instruction incorporating § 776.051(1), Fla. Stat., should be given when the defendant was resisting an arrest by a law enforcement officer and the defense claims the officer was acting unlawfully.” (The underlining indicates the proposed new language.) The Committee's rationale is that “there are circumstances other than an arrest (such as resisting during a detention) where Instruction 21.1 applies, but Florida Statute 776.051(1) does not.” However, section 776.051(1) applies to resisting an officer as well as to resisting arrest. Therefore, we revise the Committee's proposed amendment and amend the Note to Judge to read as follows: “A special instruction incorporating § 776.051(1), Fla. Stat., should be given when the defendant is charged with resisting an arrest by a law enforcement officer or with resisting a law enforcement officer and the defense claims the officer was acting unlawfully.”

In Instruction 22.5, Setting Up, Promoting, or Conducting a Lottery, the Committee proposes that the definition of “lottery” be amended.³ The proposal would delete the phrase that follows the words “a lottery is” and define the term by reference to the three elements as follows: “A ‘lottery’ has three elements: (1) consideration—that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.” In the proposal, this amended definition is followed by new definitions of the terms “bet,” “thing ventured,” and “prize by lot or chance.” We note that there are six other standard instructions for other lottery-related offenses proscribed by section 849.09, Florida Statutes (2013). See Fla. Std. Jury Instr. (Crim.) 22.6–22.11.⁴ We are concerned that if we authorize for publication and use the Committee's proposed revision of Instruction 22.5, the definition of “lottery” in Instruction 22.5 will be different from the definition of “lottery” that appears in the other six instructions. We therefore decline to authorize the proposed revision at this time and ask the Committee to study the matter further in connection with possible amendments to Instructions 22.6–22.11.

As stated above, we have revised the Committee's proposal with respect to the “Note to Judge” section of Instruction 21.1, Resisting Officer with Violence. And we defer consideration of the Committee's proposed amendment of the definition of “lottery” in Instruction 22.5, Setting Up, Promoting or Conducting a Lottery, pending the Committee's reconsideration, which we hereby request, of its proposal in connection with the standard instructions on other lottery-related offenses. With these exceptions, we authorize the proposed instructions for publication and use.

We authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use.⁵ 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, POLSTON, and PERRY, JJ., concur.

APPENDIX

2.7 CLOSING ARGUMENT

§ 918.19, Fla. Stat.

Both the State and the defendant have now rested their case.

The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case. Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defendantdefense has spokengiven its closing argument.

Comment

This instruction was approved in 1981 and amended in 2007 [SC07–325, Corrected Opinion, August 30, 2007][965 So.2d 811] and 2014.

3.6(k) DURESS OR NECESSITY

An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:

1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].

2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].

Give 2b if escape charged.

b. The [danger] [emergency] threatened death or serious bodily injury.

3. The threatened harm must have been real, imminent, and impending.

Give 4a if escape is not charged.

4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).

If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla. 1st DCA 1981), and if so, give 4b.

b. The defendant left [the place of [his][her] confinement] [the vehicle in which [he][she] was being transported] [to] [from] [his][her] work on a public road] because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.

5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].

6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).

Definitions.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he][she] committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant's belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.

If you have a reasonable doubt as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you...