In re Standard Jury Instructions in Criminal Cases—Report 2018-10

Decision Date13 December 2018
Docket NumberNo. SC18-1716,SC18-1716
Citation259 So.3d 765 (Mem)
CourtFlorida Supreme Court

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


The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions. The Committee asks that the Court authorize amended standard instructions 10.20 ( [Care] [Custody] [Possession] [Control] of [a Firearm] [Ammunition] While a Final Injunction for [Domestic Violence] [Stalking] [Cyberstalking] is in Effect), 14.8 (Unlawful Possession of a Stolen [Credit] [Debit] Card), 16.11 ( [Possession] [Control] [Intentional Viewing] of Material Including Sexual Conduct by a Child), 20.18(a) (Unlawful Possession of the Personal Identification Information of Another Person), 22.10 (Possessing a Lottery Ticket), 22.11 (Possessing Rundown Sheets, Etc.), and 22.15 ( [Manufacturing] [Owning] [Storing] [Keeping] [Possession of] [Permitting the Operation of] [Selling] [Leasing] [Transporting] a Slot Machine) for publication and use.1

The Committee filed its report after publishing the proposals in The Florida Bar News . No comments were received by the Committee. We authorize for publication and use instructions 14.8, 16.11, and 20.18 as proposed. Instruction 22.15 is authorized for publication and use as proposed, with a correction to the title and statutory citations, and instructions 10.20, 22.10, and 22.11 are authorized for publication and use as modified. The more significant amendments to the instructions are discussed below.

First, consistent with this Court's decision in In re Standard Jury Instructions in Criminal Cases—Report 2017-03 , 238 So.3d 182, 183 (Fla. 2018), the concept of "possession" is added to each of the instructions and prior language is deleted.

Next, with regard to instruction 10.20, we amend the paragraph defining "firearm" to read as follows: "[The term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of a nother crime.]" However, without explanation for the proposal, we decline to delete the definition for "care" and "custody," which terms are included in the statutory provision defining the offense of "[p]ossession of firearm or ammunition prohibited when person is subject to an injunction against committing acts of domestic violence, stalking, or cyberstalking." See § 790.233(1), Fla. Stat (2018).

Lastly, in instructions 22.10, 22.11, and 22.15, on our own motion, we replace the references to a repealed statute, section 849.161, with section 546.10, Florida Statutes. See ch. 2015-93, §§ 1, 3, Laws of Fla. In addition, in instruction 22.15, we also correct the citation to section 849.094(8)(b), Florida Statutes, to properly cite for the proposition that "[c]ompliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device."

Having considered the Committee's report, we authorize the amended instructions as set forth in the appendix to this opinion, for publication and use.2 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.




§ 790.233(1), Fla. Stat.

To prove the crime of (crime charged),the State must prove the following three elements beyond a reasonable doubt :

1. A judge issued a final injunction for protection against [domestic violence] [stalking] [cyberstalking] against (defendant).
2. The final injunction had been served upon (defendant) or (defendant) had acknowledged receipt.
3. While the final injunction was in force and effect, (defendant) had [ammunition] [a firearm] in [his] [her] care, custody, possession, or control.

Definitions. Give as applicable.

Fla. Stat.§ 790.001(6), Fla. Stat.

"Firearm" means 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; the frame or receiver of any such weapon, any firearm muffler or firearm silencer; any destructive device; any machine gun. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime. ]SeeFla. Stat.§ 790.001(1), Fla. Stat.for the definition of antique firearm.

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 inconverting 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 for use in a firearm other than a destructive device.

"Destructive device" does not include:

a. A device which is not designed, redesigned, used, or intended for use as a weapon;
b. Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;
c. Any shotgun other than a short-barreled shotgun; or
d. Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

Fla. Stat.§ 790.001(19), Fla. Stat.

"Ammunition" means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer;
b. One or more projectiles, one or more bullets, or shot;
c. Gunpowder.

"Care" and "custody" mean immediate charge and control exercised by a person over the named item. The terms care, custody, and control may be used interchangeably.


To prove (defendant)"possessed" [a firearm] [ammunition], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [firearm] [ammunition]; and b) intentionally exercised control over it.

Give if applicable.

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

Joint possession.

Possession of [a firearm] [ammunition] may be sole or joint, that is, two or more persons may possess it.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the object, the object is in a place over which the person has control, and the person has the ability to control the object.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

In order to establish constructive possession of an object that was in a place (defendant)did not control, the State must prove (defendant)(1) knew that the object was within [his] [her] presence and (2) exercised control or ownership over the object itself.

Joint possession.

Possession may be sole or joint, that is, two or more persons may be aware of the presence of an object and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of that object.


Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1stDCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4thDCA 2011).

If you find that (defendant):

a. had direct physical custody of the [ammunition] [firearm], or
b. was within ready reach of the [ammunition] [firearm] and the [ammunition] [firearm] was under [his] [her] control, or
c. had exclusive control of the place where the [ammunition] [firearm] was located,

you may infer that [he] [she] was aware of the presence of the [ammuniti...

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