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October 1, 2013
Amendments to criminal jury instructions

On its own motion, the Florida Supreme Court recently amended and thereupon authorized on an interim basis, standard criminal jury instruction 14.2, Dealing in Stolen Property (Fencing), in light of the Court’s opinion in Williams v. State, No. SC11-1543 (Fla. Aug. 29, 2013). See In re: Standard Jury Instructions in Criminal Cases – Instruction 14.2, No. SC12-1940 (Fla. Aug. 29, 2013).

The Court invites all interested persons to comment on the amendment to instruction 14.2, which is reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before October 28, 2013, with a certificate of service verifying that a copy has been served on the Criminal Instructions Committee Chair, The Honorable Joseph Anthony Bulone, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, schneidb@flcourts.org. A separate request for oral argument should accompany the comment if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until November 18, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.


IN THE SUPREME COURT OF FLORIDA
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES – INSTRUCTION 14.2, Case No. SC12-1940
14.2 DEALING IN STOLEN PROPERTY (FENCING)
§ 812.019(1), Fla. Stat.

To prove the crime of Dealing in Stolen Property (Fencing), the State must prove the following two elements beyond a reasonable doubt:
      1. (Defendant) [trafficked in] [endeavored to traffic in] (property alleged).

      2. (Defendant) knew or should have known that (property alleged) was stolen.

Inferences. Give if applicable. § 812.022(2), Fla. Stat.
Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.
Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(4), Fla. Stat.
Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.
Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offeror of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.
Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.

Definitions.
§ 812.012(3), Fla. Stat.
“Property” means anything of value, and includes:
      real property, including things growing on, affixed to and found in land;

      tangible or intangible personal property, including rights, privileges, interests, and claims; and

      services.

§§ 812.012(6), 812.028(3), Fla. Stat.
“Stolen property” means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.

§ 812.012(7), Fla. Stat.
“Traffic” means:
      to sell, transfer, distribute, dispense or otherwise dispose of property; and

      to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.
Give if both theft and dealing in stolen property are submitted to the jury:
You will receive separate verdict forms for theft and dealing in stolen property as the defendant was charged with both crimes.

If you find that the State has not proven theft and dealing in stolen property, then you are to find the defendant not guilty of both offenses.

If you find that the State has proven theft, but not dealing in stolen property, then you are to find the defendant guilty of theft and not guilty of dealing in stolen property.

If you find that the State has proven dealing in stolen property, but not theft, then you are to find the defendant guilty of dealing in stolen property and not guilty of theft.

If you find that the State has proven both theft and dealing in stolen property, you must then decide whether both offenses were in connection with one scheme or course of conduct. “One scheme or course of conduct” means that there was no clearly disjunctive interval of time or set of circumstances which meaningfully disrupted the flow of the defendant’s conduct.

If you find that both theft and dealing in stolen property were proven by the State, and the offenses were not in connection with one scheme or course of conduct, then you are to find the defendant guilty of both theft and dealing in stolen property.
    If you find that both theft and dealing in stolen property were proven by the State, and the offenses were in connection with one scheme or course of conduct, then the defendant must be convicted of either theft or dealing in stolen property. In making your decision, you must determine whether the defendant is more of a common thief or more of a trafficker. This determination rests on the defendant’s intended use of the stolen property. The defendant is a “common thief” if [he][she] had the intent to appropriate the property to [his] [her] own use or to the use of any person not entitled to the use of the property. The defendant is a “trafficker” if [he][she] had the intent to traffic in the stolen property. If you find the defendant more of a “common thief,” then you are to find the defendant guilty of theft only. If you find the defendant more of a “trafficker,” then you are to find the defendant guilty of dealing in stolen property only.
    Lesser Included Offenses
    DEALING IN STOLEN PROPERTY — TRAFFICKING — 812.019(1)
    CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO.
    NoneGrand theft — third degree812.014(2)(c)
    Petit theft — first degree812.014(2)(e)
    Petit theft — second degree812.014(3)(a)
    Comment

    This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and in 2007, by adding the Iinferences in § 812.022(2)-(6), Fla. Stat., and 2013.

    [Revised: 12-05-2014]