In re Standard Jury Instructions in Criminal Cases—report Number

• Decision Date: 25 April 2013
• Docket Number: No. SC11–2517.,SC11–2517.
• Citation: 141 So.3d 132
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2011–05.
• Court: Florida Supreme Court

141 So.3d 132

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2011–05.

No. SC11–2517.

Supreme Court of Florida.

April 25, 2013.
Rehearing Denied April 25, 2013.

Original Proceedings—Supreme Court Committee on Standard Jury Instructions–Criminal Cases.
Honorable Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, FL; and Samantha Lee Ward, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Thirteenth Judicial Circuit, Tampa, FL, Richard Hayes Combs, Office of The State Attorney, Quincy, FL, for Petitioner.

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Richard W. Mantei, Assistant State Attorney, Fourth Judicial Circuit, Jacksonville, FL; Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL; Seth Elliot Miller and Michael J. Minerva, Innocence Project of Florida, Tallahassee, FL, and Karen A. Newirth, Innocence Project, Inc., New York, NY; and Carol Stafford Haughwout, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, Responding with comments.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing three new standard criminal jury instructions and amendments to an existing standard criminal jury instruction. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.

The Committee proposes that the Court authorize for publication and use new instruction 3.9(f)—Eyewitness Identification, new instruction 3.6(m)—Affirmative Defense: Temporary Possession of Controlled Substance for Legal Disposal, and new instruction 3.6(n)—Affirmative Defense: Controlled Substance was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription. The Committee also proposes amending criminal jury instruction 3.13—Submitting Case to Jury.

Before filing its report with the Court, the Committee published its proposals for comment. Multiple comments were received by the Committee on its proposed new instructions. No comments were received on the proposed amendments to instruction 3.13. Upon considering the comments, the Committee modified each of its proposed new instructions.

After the Committee filed its report, which included a minority report, the Court published the Committee's proposals for comment. Four comments were filed concerning the proposed new instructions. No comments were filed concerning the proposed amendments to instruction 3.13. The Committee filed a response to the comments.

Having considered the Committee's report, the minority report, the comments filed, and the Committee's response, we authorize for publication and use amended instruction 3.13 as proposed by the Committee. We also authorize for publication and use the new instructions proposed by the Committee, with minor modifications to new instruction 3.6(n).

New instruction 3.6(n) instructs a jury that possession of a controlled substance lawfully obtained from a practitioner or pursuant to a valid prescription is a defense to possession or trafficking in a controlled substance. The new instruction includes the definitions contained in section 893.02, Florida Statutes (2012), for the words “practitioner” and “prescription.” We modify the citation to section 893.02 in each definition to indicate that the definition for the word “practitioner” stems from subsection (21) of section 893.02, and the definition for the word “prescription” stems from subsection (22) of section 893.02. We also modify the definition for the word “prescription” contained in new instruction 3.6(n). Consistent with section 893.02(22), we amend the definition of “prescription” to include prescriptions issued by practitioners licensed in a state other than Florida.

Accordingly, we hereby authorize for publication and use the instructions as they appear in the attached appendix.¹ In

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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 underlining 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.

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

APPENDIX 3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF 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.

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 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

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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, 126 S.Ct. 2437, 165 L.Ed.2d 299 (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] temporarily possessed the controlled substance solely for legal disposal, you should find [him][her] not guilty. If the defendant did not prove ( insert appropriate burden of persuasion ) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him][her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:

If you find that the State proved ( insert appropriate burden of persuasion ) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him][her]...