Jury Instructions in Crim. Cases-No. 2005-1, SC05-803.
| Decision Date | 29 March 2007 |
| Docket Number | No. SC05-803.,SC05-803. |
| Citation | 953 So.2d 495 |
| Parties | In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—NO. 2005-1. |
| Court | Florida Supreme Court |
The Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, the Honorable Dedee S. Costello, Past Chair, Fourteenth Judicial Circuit, Panama City, FL, Les Garringer, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.
Bart Schneider, Lake Mary, FL and the Honorable David A. Glant, Eighth Judicial Circuit, Gainesville, FL, Responding with comments.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) filed a report on May 6, 2005, proposing amendments to Standard Jury Instructions in Criminal Cases 8.6—Stalking; 8.7(a)—Aggravated Stalking; 8.7(b)— Aggravated Stalking—Injunction Entered; 8.8—Aggravated Stalking—Victim Under 16 Years of Age; 10.15—Felons Possessing Weapons; 13.2—Possession of Burglary Tools; and 14.1—Theft. The Committee also proposed new instructions 11.14— Dangerous Sexual Felony Offender, and 13.21—Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary.
The Court published the proposals for comment in the July 1, 2005, edition of The Florida Bar News. Two comments were received. Following submission by the Committee of an amended proposal to instruction 8.7(a), the Court published that proposal for comment in the October 15, 2005, edition of The Florida Bar News. One comment was received. On October 30, 2006, the Committee filed an amended report revising its proposals with regard to instructions 8.7(b), 10.15, and 13.21, and withdrawing its proposal with regard to instruction 14.1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
We decline to authorize instruction 11.14—Dangerous Sexual Felony Offender for publication and use pending further study and a report by the Committee. Instruction 11.14 would create a new jury instruction for the classification of "Dangerous Sexual Felony Offender." The proposal derives from the rewording of section 794.0115, Florida Statutes, in chapter 2003-115, Laws of Florida, to include a mandatory minimum sentence of twenty-five years of imprisonment for those classified as dangerous sexual felony offenders under the "Dangerous Sexual Offender Act." Under the statutory scheme, a defendant may be adjudicated a dangerous sexual felony offender if he or she is convicted of committing certain enumerated offenses, see § 794.0115(2), Fla. Stat. (2006), as well as having done so under five alternative circumstances. We are concerned with the proposal in respect to the alternative circumstance under section 794.0115(2)(e), that the defendant "[h]as previously been convicted of a violation of [various statutes]." Unlike section 794.0115(4), Florida Statutes, the proposed instruction does not include qualifying language for "previously been convicted." Section 794.0115(4) provides that "[t]he offense described in subsection (2) which is being charged must have been committed after the date of commission of the last prior conviction for an offense that is a prior conviction described in paragraph (2)(e)." Therefore, we refer this proposed instruction back to the Committee to address this issue.
Having considered the Committee's amended report and the comments filed, we hereby authorize the publication and use of the other proposed instructions, as set forth in the appendix to this opinion, with a minor modification.1 In doing so, we express no opinion on the correctness of those instructions 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 notes and 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 struck through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.
It is so ordered.
APPENDIX
To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:
(Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim).
Definitions.
"Harass" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
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STALKING—784.048(2)
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CATEGORY CATEGORY FLA
ONE TWO STAT. INS. NO
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None
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Attempt 777.04(1) 5.1
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Comment
This instruction was approved in 1995 and amended in 2007 to include cyberstalking.
To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim).
2. (Defendant) made a credible threat with the intent to place (victim) in reasonable fear of death or bodily injury to [himself] [herself] [(name of the subject of threat)].
Give if applicable.
(Name of subject of threat) was (victim)'s [child] [sibling] [spouse] [parent] [dependent].
Definitions.
"Harass" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
"Credible threat" means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.
Lesser Included Offenses
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AGGRAVATED STALKING—784.048(3)
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CATEGORY CATEGORY FLA. INS.
ONE TWO STAT. NO.
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Stalking 784.048(2) 8.6
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Attempt 777.04(1) 5.1
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Assault 784.011 8.1
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Improper
exhibition of
dangerous weapon 790.10 10.5
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Comment
This instruction was approved in 1995 and amended in 2007 to incorporate cyberstalking.
(Injunction Entered)
To prove the crime of Aggravated Stalking, the State must prove the following two three elements beyond a reasonable doubt:
1. (Defendant)__knowingly, willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim).
Give 2a, 2b, or 2c as applicable
2. (Defendant) did so in violation of
a. an injunction for protection against repeat violence.
b. an injunction for protection against domestic violence.
c. any [other] court imposed prohibition of conduct toward (the victim) or (victim's) property.
Give 2a or 2b as applicable.
2. At the time of the [following] [harassing] [cyberstalking],
a. an injunction for protection against [repeat] [sexual] [dating] [domestic] violence had been entered against (defendant) for the benefit of (victim).
b. a court had imposed a prohibition of conduct on (defendant) toward (victim) or (victim's property).
3. (Defendant) knew that the [injunction] [court-imposed prohibition of conduct] had been entered against [him] [her].
Definitions.
"Harass" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
"Credible threat" means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.
Lesser Included Offenses
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AGGRAVATED STALKING (Injunction Entered)—784.048(4)
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CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
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Stalking
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