Standard Jury Instructions in Criminal Cases (97-1), 89771
| Decision Date | 10 July 1997 |
| Docket Number | No. 89771,89771 |
| Citation | 697 So.2d 84 |
| Court | Florida Supreme Court |
| Parties | 22 Fla. L. Weekly S428 STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (97-1). |
Fredricka G. Smith, Chairperson, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Miami, for Petitioner.
The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted recommended amendments to the Florida Standard Jury Instructions in Criminal Cases.
The proposed amendments as initially approved by the committee were published in The Florida Bar News. After receipt of comments, the committee submitted the following proposed amendments for our consideration:
1. An amended instruction 2.03 Plea of Not Guilty; Reasonable Doubt; and Burden of Proof.
2. An amended instruction for trafficking in cocaine (and other controlled substances) that addresses (a) the knowledge element, State v. Dominguez, 509 So.2d 917 (Fla.1987), (b) the definition of possession, (c) State v. Weller, 590 So.2d 923 (Fla.1991), and (d) recent statutory changes in amounts for enhancements.
3. Amended instructions for second-degree murder and attempted second-degree murder.
4. An amended burglary instruction.
5. An amended instruction for the offense of exposure of sexual organs to include the requirement of intent and an objective standard of "harm."
6. An amended instruction 3.01(a) Principals--When Active Participant Hired by Defendant.
7. An amended instruction on solicitation of a child under the age of 18 years.
8. An amended instruction on sexual battery of a child between the ages of 12 and 18.
9. A new instruction for aggravated battery on a victim who is 65 years of age or older.
10. A new instruction for aggravated assault on a victim who is 65 years of age or older.
11. A new instruction for battery on a victim who is 65 years of age or older.
12. A new instruction for assault on a victim who is 65 years of age or older.
13. A new instruction for carjacking.
14. A new instruction for home invasion robbery.
15. A new instruction for the defense of insanity--hallucinations.
16. A new defense instruction entitled "Independent Act."
17. A new instruction for aggravation of a felony for concealing identity through the use of a hood, mask, or other device.
18. A new instruction for aggravation of a felony by evidencing prejudice.
Upon the filing of the committee's recommendation in this Court, the foregoing list of proposed amendments were published in The Florida Bar News together with advice that the text of the proposed amendments and explanatory comments could be found on the Court's home page. No new comments to the proposed amendments were filed with this Court. Upon consideration, we hereby adopt the proposed amendments as set forth in the appendix attached to this opinion and approve them for publication.
As part of its proposed amendment to the instruction on trafficking in cocaine, the committee redefined the term "possession." By virtue of our approval of that instruction, the definition of "possession," which now also appears in the instructions on pages 220, 221-223, 224, 225-227, 245, and 249-250, is hereby amended in the same manner.
In recommending the elimination of the word "agency" in the instruction on second-degree murder, the committee recommended that the word "agency" should also be deleted in the current instruction on first-degree murder. We approve this amendment as reflected in the new instruction on first-degree murder set forth as item 19 in the appendix.
In the course of recommending an instruction on aggravated assault on persons 65 years of age or older, the committee recommended the addition of the words "mind of" to the definition of assault contained within that instruction and recommended that such words be included in the instruction on assault. Accordingly, we approve the addition of these words to the instruction on assault which appears as item 20 in the appendix.
We caution all interested persons that the notes and comments 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 amendments as set forth in the appendix shall be effective when this opinion becomes final. Entirely new instructions are indicated as such. In the amended instructions, new language is indicated by underlining and deletions are indicated by struck-through type. We wish to express our appreciation to the committee for its dedication in presenting to the Court its recommendations.
It is so ordered.
APPENDIX
(1)
2.03 PLEA OF NOT GUILTY; REASONABLE DOUBT; AND BURDEN OF PROOF [Amended]
The defendant has entered a plea of not guilty. This means you must presume or To overcome the defendant's presumption of innocence the State has the burden of proving [DELETED: the following two elements:]
believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial [DELETED: until] [ADDED: unless] it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.
The defendant is not required to [ADDED: present evidence or] prove anything.
Whenever the words "reasonable doubt" are used you must consider the following:
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.
It is to the evidence introduced [DELETED: upon] in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence or the lack of evidence.
If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.
(2)
TRAFFICKING IN COCAINE
F.S. 893.135(1)(b) [Amended]
Certain drugs and chemical substances are by law known as "controlled substances." Cocaine or any mixture containing cocaine is a controlled substance.
Before you can find the defendant guilty of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt:
Elements
1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [cocaine] [a mixture containing cocaine].
3. The quantity of the substance involved was 28 grams or more.
enumerated controlled substance in F.S. 893.135(l )), but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cocaine or a mixture containing cocaine.]]
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 F.S. 893.02(12)(a)
"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" 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.
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