Standard Jury Inst. in Cr. Cases No. 2007-4, SC07-767.

Decision Date22 May 2008
Docket NumberNo. SC07-767.,SC07-767.
Citation983 So.2d 531
PartiesIn re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2007-4.
CourtFlorida Supreme Court

Judge Terry David Terrell, Chair, Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.

John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, on behalf of The Florida Public Defender Association; and James T. Miller, Jacksonville, FL, on behalf of The Florida Association of Criminal Defense Lawyers, Responding with comments.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has proposed nine new standard criminal jury instructions in respect to the offenses of failure to register by sexual offenders (instructions 11.14 and 11.14(a)-(h)), and thirteen new instructions in respect to the offenses of failure to register by sexual predators (instructions 11.15 and 11.15(a)-(l)). The Committee asks that the Court authorize the proposed standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee originally published its proposals on November 1, 2006, in The Florida Bar News prior to submission to the Court, and received two comments. The Court thereafter directed that all referenced proposals be republished; the proposals appeared in the June 1, 2007, edition of The Florida Bar News. Two comments were filed in response to that publication. At the Court's direction, the Committee reexamined a number of the proposals, and on December 7, 2007, submitted the revised proposals that we authorize, as modified below.1

New instructions 11.14 and 11.14(a)-(g) pertain to offenses involving the failure to register as a sexual offender, as defined in section 943.0435, Florida Statutes (2007). New instruction 11.14(h) includes definitions for terms used in proposed instructions 11.14 and 11.14(a)-(g). Under section 943.0435, any person who is a "sexual offender" (as defined by subsection (1)(a)) is required to provide specific information to certain state or law enforcement agencies in order to satisfy the reporting requirements. See § 943.0435(2)-(4), (7)-(8), (14), Fla. Stat.

Common to instructions 11.14 and 11.14(a)-(g) is the element that the defendant is a "sexual offender." The State meets its burden on that element by either proving that the defendant is a sexual offender as defined in proposed instruction 11.14(h) or upon an agreement or stipulation by the defendant that he has been convicted as a sexual offender. Instruction 11.14(h) has been modified from that proposed by the Committee to include the statutory definitions for "electronic mail address" and "instant message name," pursuant to chapter 2007-143, section 10, Laws of Florida. Therein, the Legislature amended section 943.0435 to include "electronic mail address" and "instant message name" as required items to be provided by sexual offenders upon registering, effective October 1, 2007. See § 943.0435(2)(a)2, (4)(d), (14)(c)1, Fla. Stat.2 New instructions 11.15 and 11.15(a)-(k) pertain to offenses involving the failure to register as a sexual predator, as defined in section 775.21, Florida Statutes (2007). New instruction 11.15(l) includes definitions for terms used in proposed instructions 11.15 and 11.15(a)-(k). Under section 775.21, any person who is a "sexual predator" (as defined by subsection (4)) is required to provide specific information to certain agencies in order to satisfy the reporting requirements. See § 775.21(6), (10), Fla. Stat.

Instruction 11.15(e), derived from section 775.21(6)(f), Florida Statutes, pertains to the offense of Failure to Register as a Sexual Predator (Failure to Report to Department of Highway Safety and Motor Vehicles). Under subsection (6)(f), a sexual predator who is not incarcerated and resides in the community, irrespective of whether he or she was under the supervision of the Florida Department of Corrections (DOC), must register at a driver's license office of the Department of Highway Safety and Motor Vehicles, within forty-eight hours of registering either with the DOC or at the sheriff's office. In reporting to a driver's license office, "[i]f otherwise qualified, [the sexual predator must] secure a Florida driver's license, renew a Florida driver's license, or secure an identification card." § 775.21(6)(f)1, Fla. Stat. In doing so, the sexual predator must identify himself or herself as one who is required to comply with section 775.21(6)(f) and provide certain specified information. The Committee's proposal has been modified to address the failure to secure or renew a Florida driver's license or to secure an identification card.

We hereby authorize for publication and use the modified instructions as set forth in the appendix to this opinion. 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. The instructions as set forth in the appendix3 shall be effective when this opinion becomes final. However, because the Court did not republish for comment the instructions filed on December 7, 2007, and modified by the Court, prior to their authorization, the Committee as well as interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.4

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

11.14 FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Initially Register)

§ 943.0435(2)(a)-(b), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status an element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintains] [maintained] a permanent or temporary residence in (name of county) County, Florida.

Give 3a, 3b, 3c, or 3d as applicable.

3. (Defendant)

a. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after establishing permanent or temporary residence within this state.

b. knowingly failed to report in person at an office of the sheriff of (name of county) County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections] [custody of a private correctional facility].

c. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after having been convicted by a court in that county of an offense requiring registration.

d. knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [(name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute).]

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008.

11.14(a) FAILURE TO REGISTER AS A SEXUAL OFFENDER

(Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel, or Houseboat)

§ 943.0435(2)(b)1, Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintains] [maintained] a permanent or temporary residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. uses as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];

and

knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute)] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resides.

b. uses as [his] [her] place of residence a [vessel] [live-aboard vessel] [houseboat];

and

knowingly failed to...

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