In re Standard Jury Instructions in Criminal Cases—Report No. 2013–05

• Decision Date: 11 December 2014
• Docket Number: No. SC13–1733.,SC13–1733.
• Citation: 153 So.3d 192 (Mem)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–05.
• Court: Florida Supreme Court

153 So.3d 192 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013–05.

No. SC13–1733.

Supreme Court of Florida.

Dec. 11, 2014.

Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL, and Judge Joseph Anthony Bulone, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, and Bart Neil Schneider, Staff Liaison, Office of the States 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 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.

In 2013, this Court authorized for publication and use amended Standard Criminal Jury Instructions 25.9–25.13, which pertain to various drug trafficking offenses. See In re Std. Jury Instrs. in Crim. Cases—Instrs. 25.9–25.13, 112 So.3d 1211 (Fla.2013). In our opinion in that case, we asked the Committee to “review jury instructions 25.2–25.8 and make a recommendation to the Court whether any amendments to those instructions are warranted in light of the Court's decision here, or in light of [State v.] Adkins [96 So.3d 412 (Fla.2012).]”¹ We also asked the Committee for a recommendation as to “whether instructions 25.9–25.13 should be amended in light of Smith v. United States, ––– U.S. ––––, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013).” In re Std. Jury Instrs. in Crim. Cases, 112 So.3d at 1212.² In response to our requests for recommendations on these points, the Committee has filed the current report proposing further amendments to the aforementioned instructions, proposing amendments to other standard instructions pertaining to drug offenses, and proposing two entirely new instructions. This Court directed that the proposals be published in The Florida Bar News. No comments have been filed with the Court in response to publication.

The Committee's proposed changes affect the following existing criminal jury instructions: 25.2 (Drug Abuse—Sale, Purchase, Manufacture, Delivery, or Possession with Intent); 25.3 (Drug Abuse–Sale, Purchase, Delivery, or Possession in Excess of Ten Grams); 25.4 (Drug

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Abuse—Delivery to or Use of Minor); 25.5 (Drug Abuse—Bringing into State); 25.6 (Drug Abuse—Contraband in Specified Locations); 25.7 (Drug Abuse—Possession); 25.8 (Drug Abuse—Obtaining Controlled Substance by Fraud, etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in Morphine, Opium, Oxycodone, Hydrocodone, Hydromorphone, [or] Heroin); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in Methaqualone); 25.14 (Drug Abuse—Use or Possession of Drug Paraphernalia); 25.15 (Drug Abuse—Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Drug Abuse—Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); and 25.18 (Contraband in Juvenile Facility). The Committee proposes that we also authorize for publication and use the following new instructions: 25. 20 (Possession of Contraband in or Upon the Grounds of a State Correctional Institution); and 25.21 (Introduction or Removal of Contraband into or from a State Correctional Institution). We authorize the proposed amended and new instructions for publication and use except as noted below.

In its report, the Committee states that it found the law was uncertain on the issue of whether “knowledge of presence” is a required element of certain drug offenses. With respect to certain offenses, the Committee found that “knowledge of presence” may or may not be an element. The Committee proposes to address this uncertainty by including optional instructions along with notes and comments to explain the issue.

Currently, Instruction 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent) lists the following as element 3: “Defendant had knowledge of the presence of the substance,” preceded by an advisory note saying, “Give if possession is charged.” The Committee proposes to change the advisory note to read: “Give element # 3 if Possession with Intent to Sell, Purchase, Manufacture or Deliver is charged. It is unclear whether element # 3 must be given for Sale, Manufacture, Delivery, or Purchase of a Controlled Substance. See Comment section.”

Current Instruction 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams) includes as element 3, “Defendant had knowledge of the presence of the substance,” preceded by a note saying, “Give if possession is charged.” The Committee proposes to change the note to read: “Give element # 3 if possession is charged. It is unclear whether element # 3 must be given for Sale, Purchase, or Delivery of a controlled substance. See Comment section.”

Instruction 25.4 (Delivery to or Use of a Minor) does not currently include “knowledge of presence” as an element. The Committee proposes to add it as element 4, reading, “Defendant had knowledge of the presence of the substance,” preceded by a note saying, “It is unclear whether element # 4 must be given for Delivery of a Controlled Substance. See Comment section.”

Instruction 25.5 (Bringing into State) currently includes as element 3: “Defendant had knowledge of the presence of the substance.” The Committee proposes adding a note preceding element 3 reading, “It is unclear whether element # 3 must be given. See Comment section.”

Instruction 25.6 (Contraband in Specified Locations) currently includes as element 4: “Defendant had knowledge of the presence of the substance.” The Committee proposes to add the following advisory notes: “Give element # 4 if Possession with Intent to Sell, Manufacture or Deliver is charged. It is unclear whether element

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# 4 must be given for Sale, Manufacture, or Delivery of a Controlled Substance. See Comment section.”

With some variations in the language, the Committee proposes adding comments to all five of the above-listed instructions explaining the issue as follows:

Unlike the trafficking statutes, the statutes for these crimes do not contain the word “knowingly.” Also, the affirmative defense statute of section 893.101, Florida Statutes, addresses only “knowledge of illicit nature” and not “knowledge of presence.” Because of case law, “knowledge of presence” is an element of possession, which is why [an instruction on knowledge of presence] must be given if the defendant is charged with [possession or possession with intent]. See State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether “knowledge of presence” is an element of [other offenses covered by these five instructions] or whether “lack of knowledge of presence” is an affirmative defense. In the absence of case law, trial judges must decide this issue.

We decline to authorize the Committee's proposed amendments to these five instructions insofar as the treatment of “knowledge of presence” is concerned.

In State v. Adkins, 96 So.3d at 414–16, this Court addressed a facial challenge to the constitutionality of section 893.101, Florida Statutes (2011).³ The lower court had held that the statute's purported elimination of the requirement of knowledge of the illicit nature of a controlled substance as an element of offenses under chapter 893, Florida Statutes (2011), was a violation of the requirements of due process of law under the United States and Florida Constitutions. This Court reversed that decision. See Adkins, 96 So.3d at 412, 423. In its analysis of the constitutionality of 893.101, the plurality opinion said, “The statute does not eliminate the element of knowledge of the presence of the substance....” Id. at 416. An opinion concurring in result found that the statute “continue[d] to require the State to prove that a defendant had knowledge of the presence of the controlled substance as an element of drug-related offenses.” Id. at 424 (Pariente, J., concurring in result). The effect of section 893.101 was to exclude “knowledge of the illicit nature of a controlled substance” as an element of “any offense under this chapter.” In Adkins, in the process of finding the statute

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constitutional, a majority of the Court found that “knowledge of the presence” continued to be an element of drug-related offenses. More recently, the Court observed:

In Adkins, a majority of the Court held that the guilty knowledge element, in light of the express language in section 893.101, Florida Statutes (2011), is limited to knowledge of the presence of the substance sold, purchased, manufactured, delivered, or brought into the state. [96 So.3d] at 423. Knowledge of the illicit nature of the controlled substance is, under the statute, an affirmative defense.

In re Std. Jury Instrs. in Crim. Cases—Instrs. 25.9–25.13, 112 So.3d 1211, 1211 (Fla.2013).

We agree with the Committee that the issue of whether knowledge of the presence of the controlled substance is an element of a given offense may be a legal issue that must be decided based on the provisions of the...