In re Standard Jury Instructions in Criminal Cases—Reprot No. 2015–04., SC15–1172.

Decision Date14 April 2016
Docket NumberNo. SC15–1172.,SC15–1172.
Citation190 So.3d 614 (Mem)
Parties In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–04.
CourtFlorida Supreme Court

190 So.3d 614 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2015–04.

No. SC15–1172.

Supreme Court of Florida.

April 14, 2016.


Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, FL; Judge Jerri Lynn Collins, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL; and Barton Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing amendments to six existing standard criminal jury instructions and the

190 So.3d 615

addition of one new instruction. The Committee asks that the Court authorize the amended standard instructions and new instruction for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing standard criminal jury instructions: 10.6 (Discharging a Firearm [in Public] [on Residential Property] ); 14.1 (Theft); 14.2 (Dealing in Stolen Property (Fencing)); 14.3 (Dealing in Stolen Property (Organizing)); 16.1 (Aggravated Child Abuse); and 16.3 (Child Abuse). The Committee also proposes adding new instruction 20.18(a) (Unlawful Possession of Personal Identification Information of Another Person). The Committee published its proposals in The Florida Bar News. Two comments were received by the Committee. Post-publication, the Committee made changes to instructions 10.6 and 14.1, and republished its proposed amendments to instruction 14.1. No additional comments were received. The Court did not publish the proposals after they were filed.

Having considered the Committee's report and the comments submitted to the Committee, we authorize for publication and use amended instructions 10.6, 14.1, 14.2, 14.3, 16.1, and 16.3 as proposed by the Committee. We also authorize new instruction 20.18(a) as proposed by the Committee, with one exception as discussed below.

We note the following more significant changes to the jury instructions. First, instruction 10.6 (Discharging a Firearm [in Public] [on Residential Property] ) is amended to clarify when the jury should find a defendant not guilty, if the burden of persuasion is on the state. Additionally, the instruction is amended to make clear that the burden of persuasion is on the State with respect to the affirmative defenses of self-defense, defense of others, and defense of property. Next, with respect to instructions 14.1 (Theft), 14.2 (Dealing in Stolen Property (Fencing)), and 14.3 (Dealing in Stolen Property (Organizing)), language is added to explain that a judge should not instruct on the “fair market value inference,” which allows the jury to infer that a person knowingly bought or sold stolen goods in certain instances, unless there is evidence of the fair market value of the stolen property. Also, with respect to instruction 14.1, language is added indicating that the “good faith defense” is not an affirmative defense to the crime of theft, but rather, negates an essential element of the offense. Finally, with respect to instructions 16.1 (Aggravated Child Abuse) and 16.3 (Child Abuse), the word “knowingly” is not included in the definition of “willfully.”

New instruction 20.18(a) (Unlawful Possession of Personal Identification Information of Another Person) is added in response to chapter 2013–242, section 1, Laws of Florida, which created section 817.5685, Florida Statutes. The instruction sets out the two elements of the crime of unlawful possession of the personal identification of another person: 1) Defendant intentionally or knowingly possessed the personal identification information of victim, and 2) Defendant did not have authorization to do so. The instruction further defines the concept of possession, and lays out seven affirmative defenses to the crime. With respect to the explanation of “constructive possession,” the Court is unaware of any case law that has held the current explanation of constructive possession deficient. For that reason, we decline to include the Committee's explanation of constructive possession in new instruction 20.18(a), and instead, modify the instruction to include the constructive possession language used in existing Florida Standard Criminal Jury Instructions.

190 So.3d 616

The instructions, as set forth in the appendix to this opinion, are authorized for publication and use.1 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. New language is indicated by underscoring and deleted language is indicated by struck-through type. 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

10.6 DISCHARGING A FIREARM [IN PUBLIC] [ON RESIDENTIAL PROPERTY]

§ 790.15, Fla. Stat.

To prove the crime of Discharging a Firearm [in Public] [on Residential Property], the State must prove the following element beyond a reasonable doubt:

Give a, b, c, and/or d as applicable.

a. [ (Defendant) knowingly discharged a firearm in a public place.]

b. [ (Defendant) knowingly discharged a firearm [on] [over] the right of way of a paved public road, highway, or street.]

c. [ (Defendant) knowingly discharged a firearm over an occupied premises.

d. [ (Defendant) [recklessly] [negligently] discharged a firearm outdoors on property [used primarily as the site of a dwelling] [zoned exclusively for residential use].]

Definitions.

A “public place” is any place intended or designed to be frequented or resorted to by the public.

“Knowingly” means with full knowledge and intentionally.

“Recklessly” means with a conscious and intentional indifference to consequences.

“Negligently” means failing to use reasonable care under the circumstances.

Fla. Stat. § 810.011(2) , Fla. Stat.

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed

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to be occupied by people lodging therein at night.

Fla. Stat. § 790.001(6) , Fla. Stat.

A “firearm” is any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive [including any machine gun or any destructive device]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.]

Fla. Stat. § 790.001(1) , Fla. Stat.

[“Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.]

Fla. Stat. § 790.001(4) , Fla. Stat.

[“Destructive device” means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed...

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