In re Standard Jury Instructions in Criminal Cases—Report 2019-06

• Decision Date: 19 December 2019
• Docket Number: No. SC19-1091,SC19-1091
• Citation: 286 So.3d 195 (Mem)
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-06.
• Court: Florida Supreme Court

286 So.3d 195 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2019-06.

No. SC19-1091

Supreme Court of Florida.

December 19, 2019

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. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report on July 1, 2019, proposing amendments to the following existing standard criminal jury instructions: 10.18 (Altering or Removing Firearm Serial Number/Sale or Delivery of Firearm with Serial Number Altered or Removed); 26.2 (RICO—Use or Investment of Proceeds From Pattern of Racketeering Activity); 26.3 (RICO—Use or Investment of Proceeds From Collection of Unlawful Debt); 26.4 (RICO—Acquisition or Maintenance Through Pattern of Racketeering Activity); 26.5 (RICO—Acquisition or Maintenance Through Collection of Unlawful Debt); 26.6 (RICO—Conduct of or Participation in an Enterprise Through Collection of Unlawful Debt); 26.7 (RICO—Conduct of or Participation in an Enterprise Through a Pattern of Racketeering Activity); and 26.8 (Conspiracy to Engage in Pattern of Racketeering Activity). The proposals were published in The Florida Bar News . One comment, by the Florida Public Defender Association (FPDA), was received by the Committee. Upon the filing of the Committee's report, the Court did not publish the proposals for comment.

We authorize the proposed amendments to the instructions herein at issue for publication and use as proposed. The significant changes to the instructions are as follows.

First, pertaining to instruction 10.18, the title is updated to reflect the significant aspects of the offense. Thus, the title as amended now is "[Altering or Removing Firearm Serial Number with Intent to Disguise True Identity] [Possession or Sale or Delivery of Firearm with Serial Number Altered or Removed]." In addition, the term "knowingly" is added to the first element for the offense charged under section 790.27(2)(a), Florida Statutes (2019). Finally, instruction 10.18 is amended to update the definition for "possession," consistent with that in In re Standard Jury Instructions in Criminal Cases—Report 2017-03 , 238 So. 3d 182, 183-84 (Fla. 2018).

Next, in instructions 26.2-26.8, the definition for the term "enterprise" is added with a citation to section 895.02(5), Florida Statutes (2019), and providing as follows:

"Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities.

Also, the references to "individual" and "sole proprietorship" within the definition to "enterprise" include citations to State v. Nishi , 521 So. 2d 252 (Fla. 3d DCA 1988), and State v. Bowen , 413 So. 2d 798 (Fla. 1st DCA 1982), respectively, in the comment section of the instruction.

Further, instructions 26.2, 26.4, and 26.7 are amended to instruct on the issue of timing of the offense if there is no express stipulation regarding dates.

In addition, the title to instruction 26.5 is updated to reflect the offense charged under section 895.03(2), Florida Statutes (2019), to provide "RICO—Acquisition or Maintenance of an Interest in or Control of [an Enterprise] [Real Property] Through Collection of Unlawful Debt."

Lastly, instruction 26.8 is further amended to update the affirmative defense of renunciation under section 777.04(5), Florida Statutes (2019).

Having considered the Committee's proposals, the FPDA's comment, and the Committee's response thereto, we authorize for publication and use amended instructions 10.18 and 26.2-26.8 as proposed, and as set forth in the appendix to this opinion.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.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

APPENDIX

10.18 [ALTERING OR REMOVING FIREARM SERIAL NUMBER WITH INTENT TO DISGUISE TRUE IDENTITY] / [POSSESSION OR SALE OR DELIVERY OF FIREARM WITH SERIAL NUMBER ALTERED OR REMOVED]

§_790.27, Fla. Stat.

To prove the crime ofSale or Possession of Firearm with Altered or Removed Serial Number(name of crime), the State must prove the following [two] [three] elements beyond a reasonable doubt:

Give only if §_790.27(1)(a), Fla. Stat.is charged.

1. (Defendant) knowingly [altered] [removed] the [manufacturer's] [importer's] serial number from a firearm.

2. (Defendant) did so with the intent to disguise the true identity of the firearm.

Give only if §_790.27(2)(a), Fla. Stat.is charged.

1. (Defendant) knowingly [sold] [delivered] [possessed] a firearm.

2. The [manufacturer's] [importer's] serial number had been unlawfully [altered] [removed].

3. (Defendant) knew the serial number had been [altered] [removed].

§ 790.001(6), Fla. Stat.

A "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;] [ or] [ any machine gun].

Give if possession charged.

To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.

Possession may be actual or constructive.

Actual possession means:

a. the firearm is in the hand of or on the person,

b. the firearm is in a container in the hand of or on the person, or

c. the firearm is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to a firearm is not sufficient to establish control over that firearm when it is not in a place over which the person has control.

Constructive possession means the firearm is in a place over which(defendant)has control, or in which (defendant)has concealed it.

If the firearm is in a place over which (defendant)does not have control, the State establishes constructive possession if it proves that (defendant)(1) has knowledge that the firearm was within [his] [her] presence, and (2) has control over the firearm.

Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.

If a person has exclusive possession of the firearm, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of the firearm, knowledge of its presence may not be inferred or assumed.

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

Give if applicable.

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

Joint possession. Give if applicable.

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

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

[ALTERING OR REMOVING FIREARM SERIAL NUMBER WITH INTENT TO DISGUISE TRUE IDENTITY] [POSSESSION OR SALE OR DELIVERY OF FIREARM WITH SERIAL NUMBER ALTERED OR REMOVED]—790.27

 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
                None
                Attempt 777.04(1) 5.1
                

Comments

This instruction was adopted in 2009 and amended in 2019.

26.2 RICO — USE OR INVESTMENT OF PROCEEDS FROM PATTERN OF RACKETEERING ACTIVITY

§ 895.03(1), Fla._Stat.

To prove the crime of Unlawful Use or Investment of Proceeds from a Pattern of Racketeering Activity, the State must prove the following four elements beyond a reasonable doubt:

Elements 1 and 2 need to be reworded if only two incidents of racketeering conduct are alleged.

1. At least two of the following incidents occurred. Read incidents of racketeering conduct alleged in information.

Modify 1 and 2 if only two incidents alleged.

2. Of those incidents which didthat occurred, at least two of them had the same or similar [intents] [results] [accomplices] [victims] [methods of commission] or were interrelated by distinguishing characteristics and were not isolated incidents.

3. (Defendant), with criminal intent, received proceeds whichthat were derived directly or indirectly from such incidents.

4. (Defendant) [used] [invested] some of these proceeds [or proceeds derived from the investment or use thereof] either directly or indirectly [in acquiring some right, title, equity or

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