In re Standard Jury Instructions in Criminal Cases—Report 2018-12

• Decision Date: 30 May 2019
• Docket Number: No. SC18-1860,SC18-1860
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-12.
• Court: Florida Supreme Court

272 So.3d 243 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-12.

No. SC18-1860

Supreme Court of Florida.

May 30, 2019

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. See art. V, § 2(a), Fla. Const.

On November 8, 2018, the Committee filed a report proposing amendments to the following existing instructions: 3.6(m) (Affirmative Defense: Temporary Possession of Controlled Substance for Legal Disposal); 3.6(n) (Affirmative Defense: Controlled Substance Was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription); 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Purchase, Manufacture, or Deliver a Controlled Substance); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams of a Controlled Substance); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.8 (Obtaining a Controlled Substance by Fraud, etc.); 25.14 (Use or Possession with Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program] ); 25.19 (Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances); 25.20 (Possession of Contraband [in] [upon the Grounds of] a State Correctional Institution); and 25.21 ( [Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution). The Committee also proposes deleting instructions 25.9 (Trafficking in Cannabis), 25.10 (Trafficking in Cocaine), 25.11 (Trafficking in [Morphine] [Opium] [Hydromorphone] [Heroin] [ (Specific Substance Alleged) ] ), 25.11(a) (Trafficking in Hydrocodone), 25.11(b) (Trafficking in Oxycodone ), 25.12 (Trafficking in Phencyclidine), 25.13 (Trafficking in Methaqualone), 25.13(a) (Trafficking in [Amphetamine] [Methamphetamine] ), 25.13(b) (Trafficking in Flunitrazepam), 25.13(c) (Trafficking in [GHB] [GBL] [1,4-Butanediol] ), 25.13(d) (Trafficking in Phenethylamines (Includes MDMA)), and 25.13(e) (Trafficking in LSD). In addition, a new instruction, 25.7(a) (Trafficking in (Name of Controlled Substance)), is proposed. The proposals were published in The Florida Bar News ; the Committee did not receive any comments.

272 So.3d 244

We authorize the proposed amendments to the instructions for publication and use as proposed with certain modifications, and discuss the more significant amendments to the instructions.

First, to the extent that the instructions address the concept of "possession," they include the new format as previously authorized by the Court. See, e.g. , In re Std. Jury Instrs. in Criminal Cases—Report 2018-10 , 259 So.3d 765, 766 (Fla. 2018) ; In re Std. Jury Instrs. in Criminal Cases—Report 2018-08 , 259 So.3d 754, 756 (Fla. 2018) ; In re Std. Jury Instrs. in Criminal Cases—Report 2017-03 , 238 So.3d 182 (Fla. 2018).

Next, the instructions that include the affirmative defense inference pertaining to lack of knowledge of the illicit nature of a controlled substance, see sections 893.101(2) and 893.101(3), Florida Statutes (2018), are revised consistent with the language previously authorized in instruction 25.7 (Possession of a Controlled Substance). See In re Std. Jury Instrs. in Criminal Cases—Report 2017-03 , 238 So.3d at 191.

On the Court's own motion, we amend the table of lesser-included offenses for instructions 25.17, 25.18, and 25.21 to reflect that possession of a controlled substance is not necessarily a category one lesser-included offense of contraband in either a county detention facility, a juvenile detention facility or commitment program, or a state correctional institution, respectively.

Lastly, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e), which individually pertain to trafficking of a specifically named controlled substance, are hereby deleted. In their place, new instruction 25.7(a) is authorized, which provides for the insertion of the name of the particular drug charged.

Having considered the Committee's report, we authorize the new and amended instructions as set forth in the appendix to this opinion for publication and use.¹ In addition, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e) are deleted. 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.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

APPENDIX

272 So.3d 245

3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

1. (Defendant) possessed the controlled substance.

2. (Defendant) acquired the controlled substance without unlawful intent.

3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.

4. The temporary possession was solely for the purpose of legal disposal.

Definitions.

"Legal disposal" means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

To "possess a substance" means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.

272 So.3d 246

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

This defense does not apply if (defendant)disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

There is no statute for the defense of "legal disposal" and , as of October 2018, 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 [he] [she]...