In re Standard Jury Instructions in Criminal Cases—Report 2019-04
| Decision Date | 19 December 2019 |
| Docket Number | No. SC19-549,SC19-549 |
| Citation | 285 So.3d 1281 (Mem) |
| Parties | IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-04. |
| Court | Florida 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 and asks that the Court authorize new and amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending standard criminal jury instructions 10.7(a) (Throwing, Making, Placing, Projecting, or Discharging Destructive Device), 10.7(b) (Throwing, Making, Placing, Projecting, or Discharging Destructive Device), 10.7(c) (Throwing, Making, Placing, Projecting, or Discharging Destructive Device), and 10.13 (Shooting or Throwing [A Missile] [Stone] [Hard Substance] [At] [Within] [Into] [In] a[n] [Building] [Vehicle] [Vessel] [Aircraft] ). All of the proposals were published 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 authorize for publication and use standard jury instructions 10.7(a), 10.7(b), 10.7(c), and 10.13. We discuss the more significant amendments below.
First, the definition of "willfully" is added in instructions 10.7(a), 10.7(b), and 10.7(c) to define the term as "intentionally, knowingly, and purposely," which tracks other standard jury instructions defining the term. See, e.g. , Fla. Std. Jury Instr. (Crim.) 10.7(d) ().
Next, the titles of instructions 10.7(a), 10.7(b), and 10.7(c) are amended to include "possessing" to track section 790.161, Florida Statutes (2018), and the concept of "possession," as authorized in In re Standard Jury Instructions in Criminal Cases—Report 2017-03 , 238 So. 3d 182 (Fla. 2018), is also added to instructions 10.7(a), 10.7(b), and 10.7(c).
In instruction 10.7(b), "person" is added in element 2a and "another person" is substituted for "(victim)" in element 2b to track the applicable statutory provisions. See § 790.161(2), Fla. Stat. (2018).
Instruction 10.7(c) is amended to add "(Defendant)" to element one and "person" to element two to better tie the elements together and track the language of section 790.161(3), Florida Statutes (2018).
Finally, instruction 10.13 is amended to include "shot a firearm that would produce death or great bodily harm" as an optional element based upon case law interpreting section 790.19, Florida Statutes (2018). See Valdes v. State , 3 So. 3d 1067 (Fla. 2009) ; Jefferson v. State , 927 So. 2d 1037 (Fla. 4th DCA 2006) ; Horn v. State , 677 So. 2d 320 (Fla. 1st DCA 1996), Jones v. Singletary , 621 So. 2d 760 (Fla. 3d DCA 1993). A comment is added by the Committee that addresses the use of a firearm as an element of the offense as it relates to section 775.087(1) and (2), Florida Statutes (2018), which deal with reclassification and sentencing guidelines. Instruction 10.13 also is amended to include definitions of "firearm" and "great bodily harm" as authorized in In re Standard Jury Instructions in Criminal Cases - Report 2018-14 , 267 So. 3d 980 (Fla. 2019).
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. 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. The instructions as set forth in the appendix shall be effective when this opinion becomes final.
It is so ordered.
APPENDIX
10.7(a) POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGINGA DESTRUCTIVE DEVICE
§ 790.161(1), Fla._Stat.
To prove the crime of (crime charged),the State must prove the following element beyond a reasonable doubt:
Definition
A" "destructive device"" is defined as (adapt from § 790.001(4), Fla._Stat., as required by the allegations).
"Willfully" means intentionally, knowingly, and purposely.
Possession. Give if applicable.
To prove (defendant)"possessed a destructive device," the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the destructive device, and b) intentionally exercised control over that destructive device.
Give if applicable.
Control can be exercised over a destructive device whether the destructive device is carried on a person, near a person, or in a completely separate location. Mere proximity to a destructive device does not establish that the person intentionally exercised control over the destructive device in the absence of additional evidence. Control can be established by proof that (defendant)had direct personal power to control the destructive device or the present ability to direct its control by another.
Joint possession. Give if applicable.
Possession of a destructive device may be sole or joint, that is, two or more persons may possess a destructive device.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and was amended in 1989 ,and 1992 , and 2019.
10.7(b) POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGINGA DESTRUCTIVE DEVICE[WITH INTENT TO DO [BODILY HARM] [PROPERTY DAMAGE]] [RESULTING IN DISRUPTION OF [GOVERNMENTAL OPERATIONS] [COMMERCE] [THE PRIVATE AFFAIRS OF ANOTHER PERSON]]
§ 790.161(2), Fla._Stat.
To prove the crime of (crime charged),the State must prove the following two elements beyond a reasonable doubt:
Definition
A" "destructive device"" is defined as (adapt from § 790.001(4), Fla._Stat., as required by the allegations).
"Willfully" means intentionally, knowingly, and purposely.
Possession. Give if applicable.
To prove (defendant)"possessed a destructive device," the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the destructive device, and b) intentionally exercised control over that destructive device.
Give if applicable.
Control can be exercised over a destructive device whether the destructive device is carried on a person, near a person, or in a completely separate location. Mere proximity to a destructive device does not establish that the person intentionally exercised control over the destructive device in the absence of additional evidence. Control can be established by proof that (defendant)had direct personal power to control the destructive device or the present ability to direct its control by another.
Joint possession. Give if applicable.
Possession of a destructive device may be sole or joint, that is, two or more persons may possess a destructive device.
Lesser Included Offenses
POSSESSING, THROWING, MAKING, PLACING, PROJECTING
OR DISCHARGING DESTRUCTIVE DEVICE, ETC. — 790.161(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
Possessing, throwing, 790.161(1) 10.7(a)
making placing
projecting, or
discharging destructive
device
Aggravated assault 784.021 8.2
Assault 784.011 8.1
Comment
This instruction was adopted in 1992 and amended in 2019.
10.7(c) POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGINGA DESTRUCTIVE DEVICERESULTING IN [BODILY HARM TO ANOTHER PERSON] [PROPERTY DAMAGE]
§ 790.161(3), Fla._Stat.
To prove the crime of (crime charged),the State must prove the following two elements beyond a reasonable doubt:
Definition
A" "destructive device"" is defined as (adapt from § 790.001(4), Fla._Stat., as required by the allegations).
"Willfully" means intentionally, knowingly, and purposely.
Possession. Give if applicable.
To prove (defendant)"possessed a destructive device," the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the destructive device, and b) intentionally exercised control over that destructive device.
Give if applicable.
Control can be exercised over a destructive device whether the destructive device is carried on a person, near a person, or in a completely separate location. Mere proximity to a...
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