In re Standard Jury Instructions in Criminal Cases—report 2018-05

• Decision Date: 21 November 2018
• Docket Number: No. SC18-1131,SC18-1131
• Citation: 257 So.3d 925 (Mem)
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-05.
• Court: Florida Supreme Court

257 So.3d 925 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-05.

No. SC18-1131

Supreme Court of Florida.

November 21, 2018

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.

The Committee proposes amending the following standard criminal jury instructions: 12.1 (Arson – First Degree); 13.1 (Burglary); 13.3 (Trespass – In Structure or Conveyance); 13.4 (Trespass – On Property Other Than a Structure or Conveyance); and 13.21 (Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary). The proposals were published by the Committee 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 amend the standard jury instructions as proposed by the Committee and authorize them for publication and use. We discuss the more significant amendments below.

First, the definitions of "dwelling" and "structure" in instructions 12.1, 13.1, 13.3, 13.4, and 13.21 that are based on sections 810.011(1) and (2), Florida Statutes (2018), are amended to include a bracketed sentence clarifying whether an enclosed space surrounding a building can be considered part of the dwelling or structure. The new sentence reads: "The enclosure need not be continuous as it may have an ungated opening for entering and exiting." Those definitions in those instructions are also amended to add a citation to DuBose v. State , 210 So.3d 641 (Fla. 2017), in which this Court held that an enclosure "need not be continuous[,] and an ungated opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of the house." Id. at 653-54 (alteration in original) (quoting DuBose v. State , 75 So.3d 383, 384-85 (Fla. 1st DCA 2011) ). The definition of "conveyance" found in instructions 13.1, 13.3, and 13.21 is also amended to better track the language of section 810.011(3), Florida Statutes.

Next, instructions 13.1, 13.3, and 13.4 are amended to include a definition of "great bodily harm," providing that " ‘Great bodily harm’ means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises." The definition is based upon that provided by Wheeler v. State , 203 So.3d 1007 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal held that " ‘great bodily harm’ is ‘distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in simple assault and battery.’ "

Id. at 1009 (quoting T.W. v. State , 98 So.3d 238, 243 (Fla. 4th DCA 2012) ).

Additionally, instruction 13.1 is amended to reflect that claims of consent to enter the structure or conveyance, or that the premises were open to the public, are affirmative defenses rather than elements of the crime of burglary. This Court made clear in State v. Hicks , 421 So.2d 510, 511-12 (Fla. 1982), and reiterated in State v. Waters , 436 So.2d 66, 69 n.3 (Fla. 1983), that claims of consent are defenses to burglary that must be raised affirmatively.

Last, in instruction 13.1 the paragraph that currently reads "To ‘arm’ oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing the burglary" is amended to read "If you find a firearm to be a ‘dangerous weapon,’ then to ‘arm’ oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing a burglary." This language is amended to better reflect that a firearm must be found to be a "dangerous weapon" under the burglary statute, because there is no authority making such a finding as a matter of law.

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.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

12.1 ARSON — FIRST DEGREE

§ 806.01(1), Fla. Stat.

To prove the crime of Arson, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [willfully and unlawfully] [while engaged in the commission of [a felony] [(felony alleged)]]]] caused a[n] [fire] [explosion].

Give 2a if § 806.01(1)(a), Fla. Stat. is charged.

2. a. A dwelling, whether occupied or not, [or the contents of the dwelling,] was damaged by the [fire] [explosion].

Give 2b if § 806.01(1)(b), Fla. Stat. is charged.

b. A structure, where persons would normally be present at the time of the [fire] [explosion], [or the contents of a structure where persons would normally be present at the time of the [fire] [explosion]], was damaged by the [fire] [explosion].

Give 2c if § 806.01(1)(c), Fla. Stat. is charged.

c. A structure, that (defendant) knew or had reasonable grounds to believe would be occupied by a human being at the time of the [fire] [explosion], was damaged by the [fire] [explosion].

Knighten v. State, 568 So.2d 1001 (Fla. 2d DCA 1990) and N.K.D. v. State, 799 So.2d 428 (Fla. 1st DCA 2001).

In order to convict the defendant of Arson, it is not necessary for the State to prove [he] [she] intended to damage the [dwelling] [structure].

Give if applicable.

TheeC ourt instructs you that (name of felony)is a felony.

Definitions. Give as applicable.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

"Willfully" means intentionally, knowingly, and purposely.

Berry v. State, 566 So.2d 22 (Fla. 1st DCA 1990).

"Unlawfully" means without a legitimate, lawful purpose.

§ 810.011(2), Fla. Stat.Dubose v. State, 210 So.3d 641 (Fla. 2017).

"Dwelling" means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it.[The enclosure need not be continuous as it may have an ungated opening for entering and exiting.] For purposes of arson, a "dwelling" includes an attached porch or attached garage.

§ 806.01(3), Fla. Stat.;

"Structure" means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.

If the defendant is charged with causing a fire or explosion while committing a felony, define the felony that the defendant was allegedly committing.

Lesser Included Offenses

 ARSON — 806.01(1)
                CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
                None
                                  Arson - second degree      806.01(2)       12.2
                                  Attempt                    777.04(1)       5.1
                                  Criminal mischief          806.13          12.4
                

Comment s

A special instruction is necessary in cases where the dwelling is vacant and the homeowner does not intend to return.SeeSeeMitchell v. State, 734 So.2d 1067 (Fla. 1st DCA 1999).

This instruction was adopted in 1981 and was amended in 1992 [603 So.2d 1175],and 2014 [146 So.3d 1110], and 2018.

13.1 BURGLARY

§ 810.02, Fla. Stat.

Give if the information or indictment charges entering with the intent to commit an offense:

To prove the crime of Burglary, the State must prove the following[two] [three]elements beyond a reasonable doubt:

1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).

2. At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [(the crime alleged)] [an offense other than burglary or trespass] in that [structure] [conveyance].

The offense intended cannot be trespass or burglary. If requested, the jury should be instructed on the elements of the offense(s) intended.

Affirmative defenses.Giveelement 3only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public.SeeState v. Hicks, 421 So.2d 510 (Fla. 1982),and State v. Waters, 436 So.2d 66 (Fla. 1983).Failure to instruct on consent constitutes fundamental error where consent is the sole or primary defense. Faulk v. State, 222 So.3d 621 (Fla. 1st DCA 2017) and Harrison v. State, 229 So.3d 830 (Fla. 4th DCA 2017).

3. [(Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]It is a defense to the crime of Burglary if [(defendant) was [licensed] [or] [invited] to enter the [structure] [conveyance]] [the premises were open to the public at the time of the entering]. The State has the burden of proving beyond a reasonable

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