Standard Inst. in Crim. Cases (No. 2005-3)
| Decision Date | 25 October 2007 |
| Docket Number | No. SC05-1434.,SC05-1434. |
| Citation | 969 So.2d 245 |
| Parties | In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2005-3). |
| Court | Florida Supreme Court |
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed amendments to the standard jury instructions. As explained below, we authorize a number of amended and new standard jury instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
On August 18, 2005, the Committee filed a report proposing amendments to a number of drug abuse and trafficking instructions, and proposing several new instructions with regard to various offenses involving lewd and lascivious conduct.1 The proposals were published for comment in The Florida Bar News on October 15, 2005. In response to comments received and upon the Committee's further independent review, the Committee determined that it was necessary to amend the proposals, both substantively and to correct errors in stylistic format, grammar, spelling, and punctuation. The Committee ultimately filed, on September 26, 2006, an amended report requesting authorization of its amended proposals.
The Committee proposes two substantive amendments to the drug abuse and trafficking instructions: instructions 25.2 through 25.16. Both amendments are in response to chapter 2002-258, Laws of Florida (codified as section 893.101, Florida Statutes (2006)), which provides as follows:
893.101 Legislative findings and intent.—
(1) The Legislature finds that the cases of Scott v. State, 808 So.2d 166 (Fla.2002), and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.
The Committee first proposes that a portion of the explanation of constructive possession in the drug abuse and trafficking instructions be amended to delete "knowledge of the illicit nature" of a substance as an element. Next, the Committee recommends adding several paragraphs to each drug abuse and trafficking instruction in order to reflect the affirmative defense and permissive presumption set forth in section 893.101(2)-(3), Florida Statutes (2006).2
The Committee also proposes six new instructions with regard to various offenses involving lewd and lascivious conduct. These new instructions are based upon section 800.04, Florida Statutes (2006), entitled, "Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age."3
Upon consideration and with several modifications to the Committee's proposals, we hereby authorize the publication and use of the amended drug abuse and trafficking instructions and new lewd and lascivious offense instructions 11.10(a) and 11.10(b), as set forth in the appendix attached to this opinion.4 New language is indicated by underlining, and deletions are indicated by struck-through type. We decline to authorize proposed instructions 11.10(c), 11.10(d), 11.10(e), and 11.10(f), and refer these instructions back to the Committee for further consideration.
In authorizing the publication and use of standard jury 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 that the comments associated with the instructions reflect only the views 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
25.2 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT
§ 893.13(1)(a) and(2)(a), Fla. Stat.
Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.
To prove the crime of(crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:
1. (Defendant)
[sold]
[purchased]
[manufactured]
[delivered]
[possessed with intent to sell]
[possessed with the intent to purchase]
[possessed with intent to manufacture]
[possessed with intent to deliver] a certain substance.
2. The substance was (specific substance alleged).
Give if possession is charged.
3. (Defendant) had knowledge of the presence of the substance.
Definitions. Give as applicable.
Sell.
"Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.
Manufacture. § 893.02(123)(a), Fla. Stat.
"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
Possession.
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 thing controlled substance is in the hand of or on the person, or
b. the thing controlled substance is in a container in the hand of or on the person, or
c. the thing controlled substance is so close as to be within ready reach and is under the control of the person.
Give if applicable.
Mere proximity to a thing controlled substance is not sufficient to establish control over that thing controlled substance when the thing it is not in a place over which the person has control.
Constructive possession means the thing controlled substance is in a place over which the person (defendant) has control, or in which the person (defendant) has concealed it.
Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla.1996).
If a thing is in a place over which the person does not have control, iIn order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person's (defendant's) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person's(defendant's) presence , and (3) knowledge of the illicit nature of the thing.
Possession may be joint, that is, two or more persons may jointly have possession of 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 a thing controlled substance, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing controlled substance, knowledge of its presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3).
Knowledge of the illicit nature of the controlled substance is not an element of the offense of [insert name of offense charged]. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.
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