Amendments to criminal jury instructions

August 1, 2016 Notices

Amendments to criminal jury instructions

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions for comment. The committee proposes the following:

3.6(f) – JUSTIFIABLE USE OF DEADLY FORCE
3.6(g) – JUSTIFIABLE USE OF NON-DEADLY FORCE
7.8 – DRIVING UNDER THE INFLUENCE MANSLAUGHTER
7.8(a) – BOATING UNDER THE INFLUENCE MANSLAUGHTER
9.1 – KIDNAPPING
9.2 – FALSE IMPRISONMENT
11.14(h)- SEXUAL OFFENDER DEFINITIONS
11.5(l) – SEXUAL PREDATOR DEFINTIONS
18.3 – FALSE INFORMATION TO LAW ENFORCEMENT OFFICER
20.18(a) – UNLAWFUL POSSESSION OF PERSONAL IDENTIFICATION INFORMATION
21.15 – FALSE INFORMATION TO LAW ENFORCEMENT OFFICER
25.2 – SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE
25.3 – SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS OF A CONTROLLED SUBSTANCE
25.4 – DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF MINOR
25.5 – BRINGING A CONTROLLED SUBSTANCE INTO THE STATE
25.6 – SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS
25.7 – POSSESSION OF A CONTROLLED SUBSTANCE
25.8 – OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.
25.9 – TRAFFICKING IN CANNABIS
25.10 – TRAFFICKING IN COCAINE
25.11 – TRAFFICKING IN [MORPHINE] [OPIUM] [HYDROMORPHONE] [HEROIN] [(SPECIFIC SUBSTANCE ALLEGED)]
25.11(a) – TRAFFICKING IN HYDROCODONE
25.11(b) – TRAFFICKING IN OXYCODONE
25.12 – TRAFFICKING INPHENCYCIDINE
25.13 – TRAFFICKING IN METHAQUALONE
25.13(a) – TRAFFICKING IN [AMPHETAMINE] [METHAMPHETAMINE]
25.13(b) – TRAFFICKING IN FLUNITRAZEPAM
25.13(c) – TRAFFICKING IN [GHB] [GBL] [1.4-BUTANEDIOL]
25.13(d) – TRAFFICKING IN PHENETHYLAMINES (INCLUDES MDMA)
25.13(e) – TRAFFICIKING IN LSD
25.14 – USE OR POSSESSION WITH INTENT TO USE DRUG PARAPHERNALIA
25.15 – DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA
25.16 – DELIVERY OF DRUG PARAPHERNALIA TO A MINOR
25.17 – CONTRABAND IN COUNTY DETENTION FACILITY
25.18 – CONTRABAND IN JUVENILE [DETENTION FACILITY] [COMMITMENT PROGRAM]
25.20 – POSSESSION OF CONTRABAND [IN] [UPON THE GROUNDS OF] A STATE CORRECTIONAL INSTITUTION
25.21 – [INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A STATE CORRECTIONAL INSTITUTION
28.18 – FAILURE TO OBEY THE LAWFUL ORDER OF A [POLICE] [TRAFFIC] OFFICIAL
29.26 – UNLAWFUL USE OF A TWO-WAY COMMUNICATION DEVICE

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before August 31, 2016. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to [email protected], in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

Because there are many statutes applicable to self-defense, give only those parts of the instructions that are required by the evidence. However, unless the evidence establishes the force or threat of force was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State, 126 So. 3d 400 (Fla. 4th DCA 2013).

~~Read in all cases.~~
It is a defense to the crime[s] of (name[s] of relevant crime[s]) if the actions of (defendant) constituted the justifiable use of deadly force. “Deadly force” means force likely to cause death or great bodily harm.

~~Definition.~~
~~“Deadly force” means force likely to cause death or great bodily harm.~~

Both Chapter 776 and § 782.02, Fla. Stat., address the justifiable use of deadly force.

Give if applicable. § 782.02, Fla. Stat.
The use of deadly force is justifiable if the defendant reasonably believed that the force was necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

another’s attempt to murder [him] [her], or

2. any attempt to commit (applicable felony) upon [him] [her], or

3. any attempt to commit (applicable felony) upon or in any dwelling house in which [he] [she] was present ~~occupied by [him] [her]~~ .

Give the elements of the applicable felony that defendant alleges victim attempted to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).

Give if applicable. §§ 776.012(2), 776.013(3), 776.031(2), Fla. Stat.
(Defendant) was justified in [using] [or] [threatening to use] deadly force if [he] [she] reasonably believed that such [force] [or] [threat of force] was necessary to prevent [imminent death or great bodily harm to [himself] [herself] [or] [another] [or] [the imminent commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or another]]. If (defendant) was not otherwise engaged in criminal activity and was in a place [he] [she] had a right to be, then [he] [she] had no duty to retreat and had the right to stand [his] [her] ground.
Give the elements of the applicable forcible felony that defendant alleges victim was about to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).

Give if applicable when there is evidence that the defendant was engaged in criminal activity or was not in a place where he or she had a right to be, which means there was a duty to retreat. Morgan v. State, 127 So. 3d 708 (Fla. 5th DCA 2013). Where appropriate, the court should state or define the applicable criminal activity that may have been engaged in by the defendant.
If (defendant) was otherwise engaged in criminal activity or was not in a place [he] [she] had a right to be, then the use of deadly force was not justified unless [he] [she] used every reasonable means within [his] [her] power and consistent with [his] [her] own safety to avoid the danger before resorting to the use of deadly force. The fact that the defendant was wrongfully attacked cannot justify [his] [her] use of deadly force, if, by retreating, [he] [she] could have avoided the need to use deadly force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] use of deadly force was justifiable.

Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in [using force] [or] [threatening to use force] to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

Give if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the [use] [or] [threatened use] of reasonable force to defend [himself] [herself] (or another) , but only to the extent [he] [she] reasonably believes such [force] [or] [threat of force] is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

Read in all cases.
In deciding whether (defendant) was justified in the [use] [or] [threatened use] of deadly force, you must consider the circumstances by which [he] [she] was surrounded at the time the [force] [or] [threat of force] was used. The danger need not have been actual; however, to justify the [use] [or] [threatened use] of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that [force] [or] [threat of force]. Based upon appearances, (defendant) must have actually believed that the danger was real. However, the defendant had no duty to retreat if [he] [she] was not otherwise engaged in criminal activity and was in a place where [he] [she] had a right to be.

Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
(Defendant) is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when [using] [or] [threatening to use] defensive force that was intended or likely to cause death or great bodily harm to another if:

a. The person against whom the defensive force was [used] [or] [threatened to be used] was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

knew or had reason to believe that an unlawful and

forcible entry or unlawful and forcible act was occurring or had

occurred.

Exceptions to Presumption of Fear. § 776.013(2)(a)-(2)(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:

the person against whom the defensive force is [used] [or] [threatened to be used] has the right to be in [or is a lawful resident of the [dwelling] [residence]] [vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is [used] [or] [threatened to be used]; or

c. the person who [uses] [or] [threatens to use] defensive force is engaged in a criminal activity or is using the [dwelling] [residence] [occupied vehicle] to further a criminal activity; or

d. the person against whom the defensive force is [used] [or] [threatened to be used] is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person [using] [or] [threatening to use] the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

If requested, give definition of “law enforcement officer” from

§ 943.10(14), Fla. Stat.

§ 776.013(4), Fla. Stat. § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Aggressor. § 776.041(1), Fla. Stat. Give if applicable and only in cases where the defendant is charged with either a) an independent forcible felony, Martinez v. State, 981 So. 2d 449 (Fla. 2008); or b) felony murder, if an underlying felony is an independent forcible felony, Cook v. State, — So. 3d – (Fla. 2d DCA 2016).
However, the [use] [or] [threatened use] of deadly force is not justified if you find that (defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) .
Give the elements of the applicable forcible felony but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).

Aggressor. § 776.041(2), Fla. Stat. Give if applicable.
Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).
However, the [use] [or] [threatened use] of deadly force is not justified if you find that (defendant) used [force] [or] [the threat of force] to initially provoke the [use] [or] [threatened use] of force against [himself] [herself], unless:

1. T t he [force] [or] [threat of force] asserted toward the defendant was unnecessarily so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than [using] [or] [threatening to use] deadly force on (victim) .

[or]

2. I i n good faith, (defendant) withdrew from physical contact with (victim) and clearly indicated to (victim) that [he] [she] wanted to withdraw and stop the [use] [or] [threatened use] of deadly force, but (victim) continued or resumed the [use] [or] [threatened use] of force.

Prior threats. Give if applicable.
If you find that the defendant, who because of threats or prior difficulties with (victim) , had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim) , you may consider this fact in determining whether the actions of the defendant were those of a reasonable person.

Reputation of victim known by defendant. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

Comments

This instruction should be used for crimes committed on or after June 20, 2014. See Chapter 2014-195, Laws of Florida.

This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 954], 2006 [930 So. 2d 612], 2008 [976 So. 2d 1081], 2010 [27 So. 3d 640], ~~and~~ 2016 [– So. 3d –], and 2017.

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

Because there are many statutes applicable to self-defense, give only those parts of the instructions that are required by the evidence. However, unless the evidence establishes the force used was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State, 120 So. 3d 400 (Fla. 4th DCA 2013).

~~Read in all cases.~~
It is a defense to the crime[s] of (name[s] of relevant crime[s]) if the actions of (defendant) constituted the justifiable use of non-deadly force. “Non-deadly” force means force not likely to cause death or great bodily harm.

~~Definition.~~
~~“Non-deadly” force means force not likely to cause death or great bodily harm.~~

In defense of person. §§ 776.012(1), 776.013(3), Fla. Stat. Give if applicable.
(Defendant) was justified in [using] [or] [threatening to use] non-deadly force against (victim) and had no duty to retreat if [he] [she] reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force.

In defense of property. §§ 776.031(1), 776.013(3), Fla. Stat. Give if applicable.
(Defendant) was justified in [using] [or] [threatening to use] non-deadly force against (victim) and had no duty to retreat if:

1. (Victim) [was about to trespass] [or] [was trespassing] or [was about to
wrongfully interfere] [or] [was wrongfully interfering] with land or
personal property; and

2. The land or personal property was lawfully in (defendant’s) possession,
or in the possession of a member of [his] [her] immediate family or
household, or in the possession of some person whose property [he]
[she] was under a legal duty to protect; and

3. (Defendant) reasonably believed that [his] [her] [use] [or]
[threatened use] of force was necessary to prevent or terminate
(victim’s) wrongful behavior.

Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
(Defendant) is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when [using] [or] [threatening to use] defensive force if:

knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

Exceptions to Presumption of Fear. §§ 776.013(2)(a)-(2)(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:

a. the person against whom the defensive force is [used] [or] [threatened to be used] has the right to be in [or is a lawful resident of the [dwelling] [residence]] [vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

c. the person who [uses] [or] [threatens to use] defensive force is engaged in a criminal activity or is using the [dwelling] [residence] [occupied vehicle] to further a criminal activity; or

If requested, give definition of “law enforcement officer” from

§ 943.10(14), Fla. Stat.

§ 776.013(4), § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in [using] [or] [threatening to use] force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

Give the following instruction if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the [use] [or] [threatened use] of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

Read in all cases.
In deciding whether (defendant) was justified in the [use] [or] [threatened use] of non-deadly force, you must consider the circumstances by which [he] [she] was surrounded at the time the [force] [or] [threat of force] was used. The danger need not have been actual; however, to justify the [use] [or] [threatened use] of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that [force] [or] [threat of force], although as I have previously explained, the defendant had no duty to retreat. Based upon appearances, (defendant) must have actually believed that the danger was real.

Aggressor. § 776.041(1), Fla. Stat. Give if applicable and only in cases where the defendant is charged with either a) an independent forcible felony, Martinez v. State, 981 So. 2d 449 (Fla. 2008); or b) felony murder, if an underlying felony is an independent forcible felony, Cook v. State, — So. 3d — (Fla. 2d DCA 2016).
However, the [use] [or] [threatened use] of non-deadly force is not justified if you find that (defendant) was attempting to commit, committing, or escaping after the commission of a[n] (applicable forcible felony listed in § 776.08, Fla. Stat.) .
Give the elements of the applicable forcible felony but omit any reference to burden of proof. Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).

Aggressor. § 776.041(2), Fla. Stat. Give if applicable.

Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).

However, the [use] [or] [threatened use] of non-deadly force is not justified if you find that (defendant) used [force] [or] [the threat of force] to initially provoke the [use] [or] [threatened use] of force against [himself] [herself], unless:

1. T t he [force] [or] [threatened force] asserted toward
(defendant) was unnecessarily so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (victim) .

[or]

2. I i n good faith, (defendant) withdrew from physical
contact with (victim) and indicated clearly to (victim) that [he] [she] wanted to withdraw and stop the [use] [or] [threatened use] of non-deadly force, but (victim) continued or resumed the [use] [or] [threatened use] of force.

Reputation of victim known by defendant. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Reputation of victim not necessarily known by defendant (to show victim acted in conformity with victim’s character). Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person, you may consider this fact in determining whether [he] [she] was the initial aggressor.

Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) .

Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved.

Comments

This instruction should be used for crimes committed on or after June 20, 2014. See Chapter 2014-195, Laws of Florida.

This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1992 [603 So. 2d 1175], 2006 [930 So. 2d 612], 2007 [947 So. 2d 1159], 2008 [976 So. 2d 1081], 2010 [27 So. 3d 640], ~~and~~ 2016 [– So. 3d –], and 2017.

7.8 DRIVING UNDER THE INFLUENCE
MANSLAUGHTER
§§ 316.193(3)(a), (3)(b), and (3)(c)3., Fla. Stat.

To prove the crime of Driving under the Influence Manslaughter, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove [ or was in actual physical control of ] a
vehicle.

While driving

[

or in actual physical control of

]

the vehicle,

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

had a [blood] [breath]-alcohol level of. 08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

3. As a result of operating the vehicle, (defendant) caused or

contributed to the cause of the death of [

] [an

unborn child].

Give if §§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged.
If you find the defendant guilty of Driving under the Influence Manslaughter, you must further determine whether the State proved beyond a reasonable doubt that:

4. (Defendant) , at the time of the crash,

knew or should have known that the crash occurred

and

failed to give information as required by law

and

failed to render aid as required by law

Florida law requires that the driver of any vehicle involved in a crash resulting in injury to or death of any person, or damage to any vehicle or other property which is driven or attended by any person, must supply [his] [her] name, address, and the registration number of the vehicle [he] [she] is driving to any person injured in the crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash. Upon request and if available, the driver shall also exhibit [his] [her] license or permit to drive.

The driver shall give the same information and, upon request, exhibit his or her license or permit, to any police officer who is at the scene of the crash or who is investigating the crash.

The driver shall also render reasonable assistance to any person injured in the crash, including carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

In the event none of the persons specified above are in condition to receive the information to which they otherwise would be entitled, and no police officer is present, the driver of a vehicle involved in the crash, after trying to fulfill the requirements listed above as much as possible, shall immediately report the crash to the nearest office of a duly authorized police authority and supply the information specified above.

Give if applicable. § 316.193(4), Fla. Stat. ~~(Offenses committed prior to October 1, 2008, alcohol level of. 20 or higher.)~~
If you find the defendant guilty of Driving under the Influence Manslaughter, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of. 15 or higher while driving

[

or in actual physical control of

]

the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the

riving under the

nfluence.

Definitions. Give as applicable.
§ 316.003(75), Fla. Stat.
“Vehicle” is every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

§ 316.1934(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
“Impaired” means diminished in some material respect.

Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.
“Actual physical control of a vehicle” means the defendant must be physically in [ or on ] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

§ 877.111(1), Fla. Stat.

is a chemical substance under Florida law.

Chapter 893, Fla. Stat.

is a controlled substance under Florida law.

§ 775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any stage of development, and who is carried in the womb.

Give if applicable. § 775.021(5)(b), Fla. Stat.
Driving Under the Influence Manslaughter does not require the State to prove that the defendant knew or should have known that (victim) was pregnant or that the defendant intended to cause the death of the unborn child.

~~When appropriate, give one or more of the following instructions on the presumptions of impairment established by §§ 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.~~ Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.

If you find from the evidence that while driving

[

or in actual physical control of

]

a motor vehicle, the defendant had a blood or breath-alcohol level of. 05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

If you find from the evidence that while driving

[

or in actual physical control of

]

a motor vehicle, the defendant had a blood or breath-alcohol level in excess of. 05 but less than. 08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

~~3. If you find from the evidence that while driving or in actual~~

~~physical control of a motor vehicle, the defendant had a blood or~~

~~breath-alcohol level of. 08 or more, that evidence would be~~

~~sufficient by itself to establish that the defendant was under the~~

~~influence of alcoholic beverages to the extent that [his] [her]~~

~~normal faculties were impaired. But this evidence may be~~

~~contradicted or rebutted by other evidence demonstrating that the~~

~~defendant was not under the influence of alcoholic beverages to~~

~~the extent that [his] [her] normal faculties were impaired.~~

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of. 08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence Manslaughter if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.

Lesser Included Offenses

DRIVING UNDER THE INFLUENCE MANSLAUGHTER — 316.193(3)(a), (3)(b), and (3)(c)3.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Driving under the Influence		316.193(1)	28.1
	Driving under the influence causing serious bodily injury	316.193(3)(a), (3)(b), and (3)(c)2.	28.3
	Driving under the influence causing damage to person or property	316.193(3)(a), (3)(b), and (3)(c)1.	28.1(a)

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [508 So. 2d 1221], 1992
[603 So. 2d 1175], 1995 [665 So. 2d 212], 1998 [723 So. 2d 123], 2006 [946 So. 2d 1061], 2009 [6 So. 3d 574], ~~and~~ 2016 [– So. 3d –] and 2017.

7.8(a) BOATING UNDER THE INFLUENCE MANSLAUGHTER
§§327.35(3)(a), (3)(b), and (3)(c)3., Fla. Stat.

To prove the crime of Boating under the Influence Manslaughter, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) operated a vessel.

2. While operating the vessel, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of. 08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

As a result of operating the vessel,

caused or

contributed to the cause of the death of [

] [an unborn

child].

Give if §§ 327.35(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged.

If you find the defendant guilty of Boating under the Influence Manslaughter, you must further determine whether the State proved beyond a reasonable doubt that:

, at the time of the accident,

a. knew or should have known that the accident occurred

and

b. failed to give information as required by law

and

c. failed to render aid as required by law.

Florida law requires that the operator of a vessel involved in a collision, accident, or other casualty, to render to other persons affected by the collision, accident, or other casualty such assistance as is practicable and necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, so far as [he] [she] can do so without serious danger to the operators own vessel, crew, and passengers.

Florida law also requires the operator to give [his] [her] name, address, and identification of [his] [her] vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

In cases of collision, accident, or other casualty resulting in death or medical treatment beyond immediate first aid, Florida law requires that the operator, without delay and by the quickest means available, give notice of the accident to one of the following agencies: the Division of Law Enforcement of the Fish and Wildlife Conservation Commission; the sheriff of the county within which the accident occurred; or the police chief of the municipality within which the accident occurred.

Give if applicable.

§ 327.35(4), Fla. Stat.

If you find the defendant guilty of Boating under the Influence Manslaughter, you must also determine whether the State has proven beyond a reasonable doubt whether:

the defendant had a [blood] [breath]-alcohol level of.

.15

or higher while operating the vessel.

b. the defendant was accompanied in the vessel by a person
under the age of 18 years at the time of the b B oating under
the i I nfluence.

Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessels navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.

§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

is a controlled substance under Florida law.

Ch. 893, Fla. Stat

( ) is a chemical substance under Florida law. § 8 77.111(1), Fla. Stat.

§ 775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens , at any stage of development, and who is carried in the womb.

Give if applicable. § 775.021(5)(b), Fla. Stat.
Boating Under the Influence Manslaughter does not require the State to prove that the defendant knew or should have known that (victim) was pregnant or that the defendant intended to cause the death of the unborn child.

~~When appropriate, give one or more of the following instructions on the presumptions of impairment established by §§ 327.354(2)(a), (2)(b), and (2)(c), Fla. Stat.~~ Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.

If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]- alcohol level of. 05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath]- alcohol level in excess of. 05 but less than. 08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

If you find from the evidence that while operating or in actual physical control of the vessel, the defendant had a [blood] [breath] – alcohol level of. 08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with a blood or breath-alcohol level of. 08 or over. In those cases, if the jury finds that the defendant operated a vessel with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence Manslaughter if the vessel was inoperable at the time of the alleged offense, unless the defendant was controlling or steering the vessel while it was being towed by another vessel upon the waters of the state. However, it is not a
defense if the defendant was boating under the influence before the vessel became inoperable.

Lesser Included Offenses

BOATING UNDER THE INFLUENCE MANSLAUGHTER — 327.35(3)(a), (3)(b), and (3)(c)3.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Boating under the influence		327.35	28.14
	Boating under the influence causing serious bodily injury	327.35(3)(a), (3)(b), and (3)(c)2.	28.17
	Boating under the influence causing damage to person or property	327.35(3)(a), (3)(b), and (3)(c)1.	28.15

Comment

This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2016 [– So. 3d –] and 2017.

9.1 KIDNAPPING
§ 787.01, Fla. Stat.

To prove the crime of Kidnapping, the State must prove the following three elements beyond a reasonable doubt:

[forcibly] [secretly] [by threat]

[confined]

[abducted]

[imprisoned]

(victim) against [his] [her] will.

2. (Defendant) had no lawful authority to do so.

3. (Defendant) acted with intent to:

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

If 3b is given, define applicable felony.

a. hold

for ransom or reward or as a shield or hostage.

b. commit or facilitate the commission of (applicable felony).

c. inflict bodily harm upon or to terrorize (victim) or another person.

d. interfere with the performance of any governmental or political function.

Give when 3b is alleged. See Faison v. State, 426 So. 2d 963 (Fla. 1983).
In order to be kidnapping, the [confinement] [abduction] [imprisonment]

a. must not be slight, inconsequential, or merely incidental to the

;

b. must not be of the kind inherent in the nature of the (applicable felony); and

c. must have some significance independent of the (applicable felony) in that it makes the (applicable felony) substantially easier of commission or substantially lessens the risk of detection.

Definition. Give if applicable. Bishop v. State, 46 So. 3d 75 (Fla. 5th DCA 2010).
“Secretly” means the defendant intended to isolate or insulate (victim) from meaningful contact or meaningful communication with the public.

Read only if confinement is alleged and victim is under 13 years of age.
Confinement of a child under the age of 13 is against the child’s will if such confinement is without the consent of the child’s parent or legal guardian.

If a violation of § 787.01(3), Fla. Stat., is charged, instruct as follows:
If you find the defendant guilty of Kidnapping, you must also determine whether the State has proved the following aggravating circumstances beyond a reasonable doubt:

1. At the time of the Kidnapping,

was under 13 years of age;

and

2. In the course of committing the Kidnapping, (defendant) committed [an Aggravated Child Abuse] [a Sexual Battery against (victim) ] [a Lewd or Lascivious Battery] [a Lewd or Lascivious Molestation] [a Lewd or Lascivious Conduct] [a Lewd or Lascivious Exhibition] [a Procuring a Child for Prostitution upon (victim) ] [a Forcing, Compelling, or Coercing Another to Become a Prostitute upon (victim) ] [an Exploitation of a Child upon (victim) ] [Human Trafficking for Commercial Sexual Activity in which [a Child under the Age of 18] [a Mentally Defective Person] [or] [a Mentally Incapacitated Person] was Involved]. Define applicable felony unless included in other instructions.

If the State has charged and is seeking the adult-on-minor sex offense multiplier in § 921.0024(1)(b), Fla. Stat., instruct as follows. Alleyne v. United States, 133 S. Ct. 2151 (2013).
If you find the defendant guilty of Kidnapping, you must also determine whether the State has proved the following four elements beyond a reasonable doubt:

1. At the time of the Kidnapping,

(defendant)

was 18 years of age or older.

2. At the time of the Kidnapping, (victim) was younger than 18 years of age.

3. The Kidnapping was committed on or after October 1, 2014.

4. In the course of committing the Kidnapping, (defendant) committed [Sexual Battery] [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Conduct] [Lewd or Lascivious Exhibition] [Lewd or Lascivious Exhibition Over a Computer Service] against (same victim as in element #2).

Define applicable felony unless included in other instructions.

Lesser Included Offenses

KIDNAPPING * — 787.01
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
False imprisonment		787.02	9.2
	Attempt	777.04(1)	5.1
	Aggravated assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comments

The Kidnapping statute does not exempt a parent from criminal liability for kidnapping his or his own child. See Davila v. State, 75 So. 3d 192 (Fla. 2011).

*If the State alleged the life felony of Kidnapping with aggravating circumstances in § 787.01(3), Fla. Stat., then those aggravating circumstances would be lesser-included crimes.

*If the State charged the defendant in a way to score the adult-on-minor sex offense multiplier in § 921.0024(1)(b), Fla. Stat., then those sex crimes would be lesser-included crimes.

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 2014 [152 So. 3d 475], ~~and~~ 2015 [167 So. 3d 443], and 2017.

9.2 FALSE IMPRISONMENT
§ 787.02, Fla. Stat.

To prove the crime of False Imprisonment, the State must prove the following two elements beyond a reasonable doubt:

[forcibly] [secretly] [by threat]

[confined]

[abducted]

[imprisoned]

[restrained]

(victim) against [his] [her] will.

2. (Defendant) had no lawful authority to do so.

If a violation of § 787.02(3), Fla. Stat., is charged, instruct as follows:
If you find the defendant guilty of False Imprisonment, you must also determine whether the State has proved the following aggravating circumstances beyond a reasonable doubt:

1. At the time of the False Imprisonment,

was under 13 years of age;

and

2. In the course of committing the False Imprisonment, (defendant) committed [an Aggravated Child Abuse] [a Sexual Battery against (victim)] [a Lewd or Lascivious Battery] [a Lewd or Lascivious Molestation] [a Lewd or Lascivious Conduct] [a Lewd or Lascivious Exhibition] [a Procuring a Child for Prostitution upon (victim)] [a Forcing, Compelling, or Coercing Another to Become a Prostitute upon (victim)] [an Exploitation of a Child upon (victim)] [Human Trafficking for Commercial Sexual Activity in which [a Child under the Age of 18] [a Mentally Defective Person] [or] [a Mentally Incapacitated Person] was Involved]. Define applicable felony unless included in other instructions.

If the State has charged and is seeking the adult-on-minor sex offense multiplier in § 921.0024(1)(b), Fla. Stat., instruct as follows. Alleyne v. United States, 133 S. Ct. 2151 (2013).
If you find the defendant guilty of False Imprisonment, you must also determine whether the State has proved the following four elements beyond a reasonable doubt:

1. At the time of the False Imprisonment,

(defendant)

was 18 years of age or older.

2. At the time of the False Imprisonment, (victim) was younger than 18 years of age.

3. The False Imprisonment was committed on or after October 1, 2014.

4. In the course of committing the False Imprisonment, (defendant) committed [Sexual Battery] [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Conduct] [Lewd or Lascivious Exhibition] [Lewd or Lascivious Exhibition Over a Computer Service] against (same victim as in element #2).

Define applicable felony unless included in other instructions.

Lesser Included Offenses

FALSE IMPRISONMENT * — 787.02
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1
	Battery	784.03	8.3
	Assault	784.011	8.1

Comments

The Faison test for determining whether a particular confinement or movement during the commission of another crime constitutes kidnapping, does not apply to false imprisonment. Sanders v. State, 905 So. 2d 271 (Fla. 2d DCA 2005).

*If the State alleged the first degree felony punishable by life of False Imprisonment with aggravating circumstances in § 787.02(3), Fla. Stat., then those aggravating circumstances would be lesser-included crimes.

*If the State charged the defendant in a way to score the adult-on-minor sex offense multiplier in § 921.0024(1)(b), Fla. Stat., then those sex crimes would be lesser-included crimes.

This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1998 [723 So. 2d 123], 2014 [152 So. 3d 475], ~~and~~ 2015 [167 So. 3d 443], and 2017.

11.14(h) SEXUAL OFFENDER DEFINITIONS
§ 943.0435(1), Fla. Stat.

Definitions.
“Sexual offender” means a person who (Insert the appropriate criteria specified by § 943.0435(1)), Fla. Stat.

“Convicted” means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. ( Note to Judge: For juvenile, military, federal and out of state convictions see § 943.0435(1), Fla. Stat.)

~~“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.~~

~~“Change in enrollment or employment status” means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.~~

“Change in status at an institution of higher education” means the commencement or termination of enrollment, including, but not limited to, traditional classroom setting or online courses, or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education.

“Electronic mail address” means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.

“Internet identifier” includes, but is not limited to, all website uniform resource locators (URLs) and application software, whether mobile or nonmobile, used for Internet communication, including anonymous communication, through electronic mail, chat, instant messages, social networking, social gaming or other similar programs and all corresponding usernames, logins, screen names, and screen identifiers associated with each URL or application software. Internet identifier does not include a date of birth, Social Security number, personal identification number (PIN), URL, or application software used for utility, banking, retail, or medical purposes. Voluntary disclosure by a sexual offender of his or her date of birth, Social Security number or PIN as an internet identifier waives the disclosure exemption in this paragraph for such personal information.

“Physical residential address” does not include a post office box, but may be a location that has no specific street address.

“Permanent residence” means a place where the person abides, lodges, or resides for 5 or more consecutive days.

“Professional license” means the document of authorization or certification issued by an agency of this state for a regulatory purpose, or by any similar agency in another jurisdiction for a regulatory purpose, to a person to engage in an occupation or to carry out a trade or business.

“Temporary residence” means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

“Transient residence” means a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

~~“Electronic mail address” means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.~~

“Internet identifier” means all electronic mail, chat, instant messenger, social networking, application software, or similar names used for Internet communication, but does not include a date of birth, social security number, or personal identification number (PIN).

“Vehicles owned” means any motor vehicle which is registered, coregistered, leased, titled, or rented by a sexual predator or sexual offender; a rented vehicle that a sexual predator or sexual offender is authorized to drive; or a vehicle for which a sexual predator or sexual offender is insured as a driver. The term also includes any motor vehicle which is registered, coregistered, leased, titled, or rented by a person or persons residing at a sexual predator’s or sexual offender’s permanent residence for 5 or more consecutive days.

“Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power [but the term does not include traction engines, road rollers, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds].

[“Motor vehicle” includes a recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.]

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012 [85 So. 3d 1090], 2013 [113 So. 3d 754], ~~and~~ 2016 [– So. 3d –] and 2017.

11.15( l ) SEXUAL PREDATOR DEFINITIONS
§ 775.21(2) and (4), Fla. Stat.

Definitions.
“Sexual predator” means a person who:

has been designated a sexual predator, in a written order of a Florida court, on or after October 1, 1993; and

has not received a pardon for the offense(s) necessary for the designation as a sexual predator; and

the written order designating the defendant a sexual predator has not been set aside in any judicial proceeding.

~~“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.~~

~~“Change in enrollment or employment status” means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.~~

“Community” means any county where the sexual predator lives or otherwise establishes or maintains a permanent, temporary, or transient residence.

“Convicted” means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. ( Note to Judge: For military, federal and out of state convictions, see § 775.21(2)(e), Fla. Stat.)

“Institution of higher education” means a career center, community college, college, state university, or independent postsecondary institution.

“Physical residential address” does not include a post office box, but may be a location that has no specific street address.

“Permanent residence” means a place where the person abides, lodges, or resides for 5 or more consecutive days.

“Temporary residence” means a place where the person abides, lodges, or resides including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012 [85 So. 3d 1090], 2013 [113 So. 3d 754], ~~and~~ 2016 [– So. 3d –], and 2017.

~~18.3 FALSE INFORMATION TO LAW ENFORCEMENT~~

~~§ 837.055 Fla. Stat.~~

~~To prove the crime of False Information to Law Enforcement, the State must prove the following five elements beyond a reasonable doubt:~~

~~(Name of law enforcement officer)~~

~~was conducting a [missing person investigation] [felony criminal investigation].~~

2. ~~(Name of law enforcement officer~~ ~~) was a law enforcement officer.~~

3. ~~(Defendant)~~ ~~knew that~~ ~~(name of law enforcement officer)~~ ~~was a law enforcement officer.~~

4. ~~(Defendant)~~ ~~knowingly and willfully gave false information to~~ ~~(name of law enforcement officer)~~ .

5. ~~(Defendant~~ ~~) intended to~~ ~~mislead~~ ~~(name of law enforcement officer)~~ ~~or impede the investigation.~~

~~Definition.~~
~~“Willfully” means intentionally, knowingly and purposely.~~

~~Lesser Included Offenses~~

~~No lesser included offenses have been identified for this offense.~~

~~Comment~~

~~This instruction was adopted in 2008.~~

20.18(a) Unlawful possession of the personal identification information of another person
§ 817.5685, Fla. Stat.

To prove the crime of Unlawful Possession of the Personal Identification Information of Another Person, the State must prove the following two elements beyond a reasonable doubt:

[intentionally] [or] [knowingly] possessed the personal identification information of

2. (Defendant) did not have authorization to do so.

Possession.
To “possess” personal identification information means to be aware of the information and to exercise control over it.
~~There are two types of possession: actual possession and constructive possession.~~
A person has actual possession of an item when he or she is aware of the presence of the item and [either] has physical control over the item [or the item is so close as to be within ready reach and is under the control of the person].
~~A person has constructive possession of an item when he or she is not in actual possession of the item but is aware of the presence of the item, the item is in a place over which he or she~~ ~~has control, and he or she has the ability to control the item.~~

~~Give if applicable.~~
~~Mere proximity to an item is not sufficient to establish the power and intention to control that item when the item is in a place that the person does not control.~~

~~Joint possession.~~

Possession of an item may be sole or joint, that is, two or more persons may be aware of the presence of an item and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the item.

~~Inferences.~~
~~Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).~~
~~If you find that~~ ~~(defendant)~~ :

~~a. had direct physical custody of the item, [or]~~

~~b. was within ready reach of the item and the item was under [his] [her] control, [or]~~

~~c. had exclusive control of the place where the item was located,~~

~~you may infer that [he] [she] was aware of the presence of the item and had the power and intention to control it.~~

If ~~(defendant)~~ did not have exclusive control over the place where an item was located, you may not infer [he] [she] had knowledge of the presence of the item or the power and intention to control it, in the absence of other incriminating evidence.

~~Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).~~
~~However, you may infer that~~ ~~(defendant)~~ knew of the presence of the substance and had the power and intention to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Enhancement. Give if applicable. § 817.5685(3)(b)2, Fla. Stat.
If you find (defendant) guilty of Unlawful Possession of the Personal Identification Information of Another Person, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] [intentionally] [or] [knowingly], and without authorization, possessed the personal identification information of five or more persons.

Definitions.
§ 817.5685(1), Fla. Stat.
“Personal identification information” means a person’s social security number, official state-issued or United States-issued driver license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, and medical records.

Give if applicable. § 817.5685(2), Fla. Stat.
The personal identification information can be in any form, including, but not limited to, mail, physical documents, identification cards, or information stored in digital form.

Give if applicable. Personal identification of five or more individuals. § 817.5685(3)(b)1, Fla. Stat.
Proof that (defendant) used or was in possession of the personal identification information of five or more individuals, unless satisfactorily explained, gives rise to an inference that (defendant) used or was in possession of the personal identification information knowingly and intentionally without authorization.

Affirmative defenses. Give as applicable. § 817.5685(4) and § 817.5685(5), Fla. Stats.
§ 817.5685, Fla. Stat., and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defenses and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
It is a defense to the crime of Unlawful Possession of the Personal Identification Information of Another Person if, at the time of the possession, (defendant) :

a. was under the reasonable belief that such possession was authorized by law or by the consent of

b. obtained

personal identification information from a forum or resource that was open or available to the general public or from a public record.

c. was the parent or legal guardian of

and

was a child.

d. was appointed by a court to act as the guardian of

and was authorized to possess

personal identification information

and make decisions regarding access to that personal identification information.

e. was an employee of a governmental agency and possessed

personal identification information in the ordinary course of business.

f. was a person engaged in a lawful business and possessed

personal identification information in the ordinary course of business.

g. was a person who found a card or document issued by a governmental agency that contained

personal identification information and [he] [she] took reasonably prompt action to return that card or document to its owner, to the governmental agency that issued the card or document, or to a law enforcement agency.

Lesser Included Offense

Unlawful possession of the personal identification information of another person — 817.5685
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

If a party requests a more complete instruction on the concept of possession, the trial judge can insert language from Instruction 25.7 (Possession of a Controlled Substance).

This instruction was adopted in 2016 [– So. 3d –] and 2017.

21.15 FALSE INFORMATION TO LAW ENFORCEMENT

§ 837.055(1), Fla. Stat.

To prove the crime of False Information to Law Enforcement, the State must prove the following five elements beyond a reasonable doubt:

was conducting a [missing person investigation] [felony criminal investigation].

) was a law enforcement officer.

knew that

was a law enforcement officer.

knowingly and willfully gave false information to

) intended to

mislead

or impede the investigation.

Definition.
Patterson v. State, 512 So. 2d 1109 (Fla. 1 ~~^st~~ st DCA 1987).
“Willfully” means intentionally, knowingly and purposely.

Felony criminal investigation.
The court instructs you that (name of crime) is a felony.

Lesser Included Offenses

FALSE INFORMATION TO LAW ENFORCEMENT — 837.055(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comments

There is no case law regarding the definition of “law enforcement officer.”

This instruction was adopted in 2008 [995 So. 2d 489] and amended in 2013 [131 So. 3d 755] and 2017.

25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE
§ 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 three elements beyond a reasonable doubt:

[sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

2. The substance was (specific substance alleged) .

3. (Defendant) had knowledge of the presence of the substance.

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight. Give if applicable.
If you find that (defendant) is guilty of Delivery of Cannabis, you must then determine if the State proved beyond a reasonable doubt that the cannabis weighed more than 20 grams.

Definitions. Give as applicable.
Cannabis. §§§ 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.
See Comment section for medical marijuana.
Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

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(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver. § 893.02(6), 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.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Constructive possession.
Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Give if applicable.
Mere proximity to a substance is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control.

Give if applicable.
In order to establish (defendant’s) constructive possession of a substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) exercised control or ownership over the substance itself.

Joint possession.
Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was

located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [she] had knowledge of the presence of the substance or the power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the substance and had the power and intention to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you are convinced beyond a reasonable doubt 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 [him] [her] guilty of (crime charged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).

Lesser Included Offenses

SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION WITH INTENT— 893.13(1)(a) and (2)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Possession of a Controlled Substance, if Possession With Intent is charged		893.13(6)	25.7
Delivery of 20 Grams or Less of Cannabis if Delivery of More than 20 Grams of Cannabis is charged		893.13(3)	25.2
	Attempt, except when delivery is charged	777.04(1)	5.1

Comments

If the State alleges the defendant possessed cannabis, in an amount more than 20 grams, with intent to sell, purchase, deliver, or manufacture the cannabis, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor lesser-included offense of simple possession. See 893.13(6)(b), Fla. Stat.

If the State alleges the defendant possessed a controlled substance listed in § 893.03(1)(c)46.–50., 114.–142., 151.–159, or 166.–173., in an amount more than 3 grams, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor necessary lesser-included offense of simple possession. See § 893.13(6)(b), Fla. Stat.

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat. includes the attempt to transfer from one person to another.

In Starting in 2014, the legislature passed laws pertaining to ~~medical marijuana, also known as~~ “medical cannabis” or “low-THC cannabis,” which is excluded from the definition of “cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(1)~~(b)~~, Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.3 SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS OF A CONTROLLED SUBSTANCE
§ 893.13(1)(b), (2)(b), and (6)(c), Fla. Stat.

This instruction will have to be altered if a combination of substances is alleged.

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 three elements beyond a reasonable doubt:

[sold] [purchased] [delivered] [possessed] a certain substance that weighed more than 10 grams.

2. The substance was (specific substance alleged) .

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.

Possession.
There are two types of possession: actual possession and constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

had direct physical custody of the substance, [or]

was within ready reach of the substance and the substance was under [his] [her] control, [or]

had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).

Lesser Included Offenses

SALE, PURCHASE, DELIVERY,OR POSSESSION IN EXCESS OF 10 GRAMS — 893.13(1)(b), (2)(b), and (6)(c)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Sale, purchase, or delivery of controlled substance if sale, purchase, or delivery is charged		893.13(1)(a) and (2)(a)	25.2
Possession of a controlled substance, if possession is charged		893.13(6)	25.7
	Attempt, except when delivery is charged	777.04(1)	5.1

Comments

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat., includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [– So. 3d –], and 2017.

25.4 DELIVERY OF A CONTROLLED SUBSTANCE TO
OR USE OF MINOR
§ 893.13(4), 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 [four elements beyond a reasonable doubt:

Give 1a, 1b, and/or 1c as applicable.

1. a.

delivered a certain substance to a person under the age of 18 years.

used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance.

c. (Defendant) used a person under the age of 18 years to assist in avoiding detection or apprehension for (violation of chapter 893, Fla. Stat., alleged).

2. The substance was (specific substance alleged) .

3. (Defendant) was 18 years of age or older at the time.

4. (Defendant) had knowledge of the presence of the substance.

Definition.
Deliver. § 893.02(6), 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.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).

Lesser Included Offenses

DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF A MINOR — 893.13(4)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Delivery of a Controlled Substance		893.13(1)(a)	25.2

Comments

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat., includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [– So. 3d –], and 2017.

25.4 DELIVERY OF A CONTROLLED SUBSTANCE TO
OR USE OF MINOR
§ 893.13(4), 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 [four elements beyond a reasonable doubt:
Give 1a, 1b, and/or 1c as applicable.
1. a. (Defendant) delivered a certain substance to a person under the age of 18 years.
b. (Defendant) used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance.
c. (Defendant) used a person under the age of 18 years to assist in avoiding detection or apprehension for (violation of chapter 893, Fla. Stat., alleged).
2. The substance was (specific substance alleged).
3. (Defendant) was 18 years of age or older at the time.
4. (Defendant) had knowledge of the presence of the substance.

You are permitted to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance.
If you are convinced beyond a reasonable doubt 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 [him] [her] guilty of (crime charged).
If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).
Lesser Included Offenses

DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF A MINOR — 893.13(4)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Delivery of a Controlled Substance		893.13(1)(a)	25.2

Comments

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat., includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [– So. 3d –], and 2017.

25.6 SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS
§ 893.13(1)(c)–(f) and (h), 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 four elements beyond a reasonable doubt:

[sold] [manufactured] [delivered] [possessed with intent to [sell] [manufacture] [deliver]] a certain substance.

Give as applicable. § 893.13(1)(c)–(f) and (h), Fla. Stat.

2. The [sale] [manufacture] [delivery] [possession with intent to [sell] [manufacture] [deliver]] took place in, on, or within 1,000 feet of:

[the real property comprising a child care facility];

[the real property comprising a public or private [elementary] [middle] [secondary] school between the hours of 6:00 a.m. and 12:00 midnight];

[the real property comprising [a state, county, or municipal park] [a community center] [a publicly-owned recreational facility];

[the real property comprising a public or private college, university, or other postsecondary educational institution];

[a physical place for worship at which a church or religious organization regularly conducts religious services];

[a convenience business];

[the real property comprising a public housing facility];

[the real property comprising an assisted living facility].

3. The substance was (specific substance alleged) .

4. (Defendant) had knowledge of the presence of the substance.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Child care facility. § 402.302, Fla. Stat.
“Child care facility” means any child care center or arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care. It does not matter if the child care facility is operated for profit or as a nonprofit operation.

Convenience business. § 812.171, Fla. Stat.
A “convenience business” means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m. The term does not include any of the following: a business that is primarily a restaurant, or one that always has at least five employees on the premises after 11 p.m. and before 5 a.m., or one that has at least 10,000 square feet of retail floor space. The term “convenience business” also does not include any business in which the owner or members of [his] [her] family work between the hours of 11 p.m. and 5 a.m.

Real property comprising a public housing facility. § 421.03(12), Fla. Stat.
The term “real property comprising a public housing facility” is defined as the real property of a public corporation created as a housing authority by statute.

Community Center. § 893.13(1)(c), Fla. Stat.
The term “community center” means a facility operated by a nonprofit community-based organization for the provision of recreational, social, or educational services to the public.

Assisted living facility. § 429.02(5), Fla. Stat.
“Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).

Lesser Included Offenses

SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS — 893.13(1)(c)–(f) and (h)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Sale, Manufacture, or Delivery of a controlled substance, if Sale, Manufacture, or Delivery is charged		893.13(1)(a)	25.2
Possession of a Controlled Substance, if Possession with Intent to Sell, Manufacture, or Deliver is charged		893.13(6)	25.7

Comments

In Starting in 2014, the legislature passed laws pertaining to ~~medical marijuana, also known as~~ “medical cannabis” or “low-THC cannabis,” which is excluded from the definition of “cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(1) ~~(b)~~, Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2000 [765 So. 2d 692], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.7 POSSESSION OF A CONTROLLED SUBSTANCE
§ 893.13(6), 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 Possession of a Controlled Substance, the State must prove the following [three] [four] elements beyond a reasonable doubt:

knew of the presence of a substance.

2. (Defendant) exercised control or ownership over that substance.

3. The substance was (specific substance alleged).

§ 893.13(6)(b), Fla. Stat. Give if applicable.

The jury must make a finding as to weight if the defendant is charged with possessing more than 20 grams of cannabis ~~or more than 3 grams of a substance listed in § 893.03(1)(c)46–50, 114–142, 151–159, or 166–173 Fla. Stat~~ .

4. The

[

cannabis weighed more than 20 grams

~~] [~~

~~(insert name of substance listed in 893.03(1)(c)46–50, 114–142, 151–159, or 166–173)~~

~~weighed more than three grams]~~

§ 893.13(6)(c), Fla. Stat. Give if applicable.

The jury must make a finding as to weight if the defendant is charged with violating § 893.13(6)(c), Fla. Stat.

4. The [

] [combination of

] [mixture containing

] weighed more than 10 grams.

Definitions.
Give if applicable. Cannabis. § § 893.02(3), 893.13(6)(b), Fla. Stat.
See Comment section for medical marijuana.
Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant].

Give if applicable. Mixture. § 893.02(16), Fla. Stat.
“Mixture” means any physical combination of two or more substances,
including, but not limited to, a blend, an aggregation, a suspension,
an emulsion, a solution, or a dosage unit, whether or not such combination
can be separated into its components by physical means, whether mechanical
or thermal.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Joint possession.
Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of a substance and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

You are permitted to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Possession of a Controlled Substance.

Lesser Included Offenses

POSSESSION OF A CONTROLLED SUBSTANCE — 893.13(6)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Possession of Less than 20 Grams of Cannabis ~~or Possession of Less than 3 Grams of a Substance listed in 893.03(1)(c)46–50, 114–142, 151–159, or 166–173,~~ if the felony level of ~~these substances~~ cannabis is charged		893.13(6)(b)	25.7
	Attempt	777.04(1)	5.1

POSSESSION OF MORE THAN TEN GRAMS OF A CONTROLLED SUBSTANCE LISTED IN 893.13(1)(a) OR (1)(b) — 893.13(6)(c)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Possession of a controlled substance (listed in 893.13(1)(a) or (1)(b))		893.13(6)(a)	25.7
	Attempt	777.04(1)	5.1

Comments

§ 893.21, Fla. Stat.

A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be prosecuted for Possession of a Controlled Substance if the evidence of the possession was obtained as a result of the person’s seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or superficial possession. See cases such as Hamilton v. State, 732 So. 2d 493 (Fla. 2d DCA 1999) and Sanders v. State, 563 So. 2d 781 (Fla. 1st DCA 1990).

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.8 OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.
§ 893.13(7)(a)9., 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 Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], the State must prove the following three elements beyond a reasonable doubt:

[acquired or obtained] [attempted to acquire or obtain] possession of a certain substance.

2. The substance was (specific substance alleged).

3. (Defendant) [acquired or obtained] [attempted to acquire or obtain] the substance by [misrepresentation] [fraud] [forgery] [deception] [subterfuge].

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge]. ~~(Defendant)~~ ~~has raised this defense.~~

You are permitted to infer 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. Read explanation of actual and/or constructive possession, as applicable.

If you are convinced beyond a reasonable doubt 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 [him] [her] guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

In Starting in 2014, the legislature passed laws pertaining to ~~medical marijuana, also known as~~ “medical cannabis” or “low-THC cannabis,” which is excluded from the definition of “cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(1) ~~(b)~~, Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.9 TRAFFICKING IN CANNABIS
§ 893.135(1)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Cannabis is a controlled substance.

To prove the crime of Trafficking in Cannabis, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was cannabis.

3. The cannabis [weighed more than 25 pounds] [constituted 300 or more cannabis plants].

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cannabis, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cannabis.

Definitions. Give as applicable.
Cannabis. § 893.02(3), Fla. Stat.
See Comment section for medical marijuana.
“Cannabis” means all parts of any plant of the genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

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.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Cannabis. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Cannabis, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(a)1.–3., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The cannabis weighed more than 25 pounds but less than 2,000 pounds.] [constituted 300 or more cannabis plants but not more than 2,000 cannabis plants.]]

b. [The cannabis [weighed 2,000 pounds or more but less than 10,000 pounds.] [constituted 2,000 or more cannabis plants but not more than 10,000 cannabis plants.]]

c. [The cannabis [weighed 10,000 pounds or more.] [constituted 10,000 or more cannabis plants.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.

Comments

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat., includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112 So. 3d 1211], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.10 TRAFFICKING IN COCAINE

§ 893.135(1)(b), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Cocaine [or any mixture containing cocaine] is a controlled substance.

To prove the crime of Trafficking in Cocaine, the State must prove the following three elements beyond a reasonable doubt:

(Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [cocaine] [a mixture containing cocaine].

3. The [cocaine] [mixture containing cocaine] weighed 28 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla. Stat.).

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cocaine or a mixture containing cocaine.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Mixture. § 893.02(16), Fla. Stat.
“Mixture” means any physical combination of two or more substances,
including, but not limited to, a blend, an aggregation, a suspension,
an emulsion, a solution, or a dosage unit, whether or not such combination
can be separated into its components by physical means, whether mechanical
or thermal.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Cocaine. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Trafficking in Cocaine.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Cocaine, you must further determine by your verdict whether the State has further proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(b)1.–2., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [cocaine][mixture containing cocaine] weighed 28 grams or more but less than 200 grams.]

b. [The [cocaine][mixture containing cocaine] weighed 200 grams or more but less than 400 grams.]

c. [The [cocaine][mixture containing cocaine] weighed 400 grams or more but less than 150 kilograms.]

d. [The [cocaine][mixture containing cocaine] weighed 150 kilograms or more.]

Lesser Included Offenses

Comments

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112 So. 3d 1211], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.11 TRAFFICKING IN [MORPHINE] [OPIUM] [HYDROMORPHONE] [HEROIN] [(SPECIFIC SUBSTANCE ALLEGED)]
§ 893.135(1)(c)1. and § 893.135(1)(c)4., Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) or any mixture containing (specific substance alleged) is a controlled substance.

To prove the crime of Trafficking in [(specific substance alleged)], the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] [a mixture containing [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ].

3. The [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] [mixture containing [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] weighed 4 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold hydromorphone, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] (specific substance alleged) or a mixture containing (specific substance alleged) .

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under

[his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in (Substance Alleged). ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in (Specific Substance alleged), you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(c), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. The [morphine] [opium] [hydromorphone] [heroin] [

] [mixture containing [morphine] [opium] [hydromorphone] [heroin]

[

] weighed 4 grams or more but less than 14 grams.

b. The [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] [mixture containing [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] weighed 14 grams or more but less than 28 grams.

c. The [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] [mixture containing [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] weighed 28 grams or more but less than 30 kilograms.

d. The [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] [mixture containing [morphine] [opium] [hydromorphone] [heroin] [ (specific substance alleged) ] weighed 30 kilograms or more.

Lesser Included Offenses

Comments

25.11(a) TRAFFICKING IN HYDROCODONE
§ 893.135(1)(c)2. and § 893.135(1)(c)4., Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Hydrocodone [or any mixture containing hydrocodone] is a controlled substance.

To prove the crime of Trafficking in Hydrocodone, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [hydrocodone] [a mixture containing [hydrocodone].

3. The [hydrocodone] [mixture containing hydrocodone] weighed 14 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold hydrocodone, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] hydrocodone or a mixture containing hydrocodone.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Hydrocodone. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Hydrocodone, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(c), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [hydrocodone] [mixture containing hydrocodone] weighed 14 grams or more but less than 28 grams.

b. the [hydrocodone] [mixture containing hydrocodone] weighed 28 grams or more but less than 50 grams.

c. the [hydrocodone] [mixture containing hydrocodone] weighed 50 grams or more but less than 200 grams.

d. the [hydrocodone] [mixture containing hydrocodone] weighed 200 grams or more but less than 30 kilograms.

e. the [hydrocodone] [mixture containing hydrocodone] weighed 30 kilograms or more.

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of

drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and 2017.

25.11(b) TRAFFICKING IN OXYCODONE
§ 893.135(1)(c)3. and § 893.135(1)(c)4., Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Oxycodone [or any mixture containing oxycodone] is a controlled substance.

To prove the crime of Trafficking in Oxycodone, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [oxycodone] [a mixture containing [oxycodone].

3. The [oxycodone] [mixture containing oxycodone] weighed 7 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold oxycodone, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] oxycodone or a mixture containing oxycodone.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or
c. The 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 substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Oxycodone. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Trafficking in Oxycodone.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Oxycodone, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(c), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [oxycodone] [mixture containing oxycodone] weighed 7 grams or more but less than 14 grams.

b. the [oxycodone] [mixture containing oxycodone] weighed 14 grams or more but less than 25 grams.

c. the [oxycodone] [mixture containing oxycodone] weighed 25 grams or more but less than 100 grams.

d. the [oxycodone] [mixture containing oxycodone] weighed 100 grams or more but less than 30 kilograms.

e. the [oxycodone] [mixture containing oxycodone] weighed 30 kilograms or more.

Lesser Included Offenses

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and 2017.

25.12 TRAFFICKING IN PHENCYCLIDINE
§ 893.135(1)(d), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Phencyclidine or any mixture containing phencyclidine is a controlled substance.

To prove the crime of Trafficking in Phencyclidine, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [phencyclidine] [a mixture containing phencyclidine].

3. The [phencyclidine] [mixture containing phencyclidine] weighed 28 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] phencyclidine or a mixture containing phencyclidine.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Phencyclidine. ~~(Defendant)~~ ~~has raised this defense~~.

You are permitted to presume infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Phencyclidine, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(d)1.a.–c., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [phencyclidine] [mixture containing phencyclidine] weighed 28 grams or more but less than 200 grams.]

b. [The [phencyclidine] [mixture containing phencyclidine] weighed 200 grams or more but less than 400 grams.]

c. [The [phencyclidine] [mixture containing phencyclidine] weighed 400 grams or more.]

Lesser Included Offenses

Comments

25.13 TRAFFICKING IN METHAQUALONE
§ 893.135(1)(e), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Methaqualone or any mixture containing methaqualone is a controlled substance.

To prove the crime of Trafficking in Methaqualone, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered ] [brought into Florida] a certain substance.

2. The substance was [methaqualone] [a mixture containing methaqualone].

3. The [methaqualone] [a mixture containing methaqualone] weighed 200 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methaqualone or a mixture containing methaqualone.

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.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Methaqualone. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her]_not guilty of Trafficking in Methaqualone.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Methaqualone, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(e)1.a.–c., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. The [methaqualone][mixture containing methaqualone] weighed 200 grams or more but less than 5 kilograms.

b. The [methaqualone][mixture containing methaqualone] weighed 5 kilograms or more but less than 25 kilograms.

c. The [methaqualone][mixture containing methaqualone] weighed 25 kilograms or more.

Lesser Included Offenses

Comments

25.13(a) TRAFFICKING IN [AMPHETAMINE] [METHAMPHETAMINE]
§ 893.135(1)(f), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” [Amphetamine] [Methamphetamine] [or a mixture containing [Amphetamine] [Methamphetamine] [Phenylacetone, Phenylacetic Acid, Pseudoephedrine, or Ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of Amphetamine or Methamphetamine]] is a controlled substance.

To prove the crime of Trafficking in [Amphetamine] [Methamphetamine], the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [amphetamine] [methamphetamine] [a mixture containing [amphetamine] [methamphetamine] [

in conjunction with other chemicals and equipment utilized in the manufacture of Amphetamine or Methamphetamine]].

3. The [amphetamine] [methamphetamine] [a mixture containing (specified substance) ] weighed 14 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methamphetamine, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methamphetamine or a mixture containing methamphetamine.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in [Amphetamine] [Methamphetamine]. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in [Amphetamine] [Methamphetamine], you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(f), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [amphetamine] [methamphetamine] [a mixture containing

] weighed 14 grams or more but less than 28 grams.

b. the [amphetamine] [methamphetamine] [a mixture containing (specified substance) ] weighed 28 grams or more but less than 200 grams.

c. the [amphetamine] [methamphetamine] [a mixture containing (specified substance) ] weighed 200 grams or more.

Lesser Included Offenses

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and 2017.

25.13(b) TRAFFICKING IN FLUNITRAZEPAM
§ 893.135(1)(g), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Flunitrazepam or a mixture containing flunitrazepam is a controlled substance.

To prove the crime of Trafficking in Flunitrazepam, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [flunitrazepam] [a mixture containing flunitrazepam].

3. The [flunitrazepam] [a mixture containing flunitrazepam]

weighed 4 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold flunitrazepam, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] flunitrazepam or a mixture containing flunitrazepam.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or
c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~ . § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Flunitrazepam. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Flunitrazepam, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(g)1., Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [flunitrazepam] [mixture containing flunitrazepam] weighed 4 grams or more but less than 14 grams.

b. the [flunitrazepam] [mixture containing flunitrazepam] weighed 14 grams or more but less than 28 grams.

c. the [flunitrazepam] [mixture containing flunitrazepam] weighed 28 grams or more but less than 30 kilograms.

d. the [flunitrazepam] [mixture containing flunitrazepam] weighed 30 kilograms or more.

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of

drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and 2017.

25.13(c) TRAFFICKING IN [GHB] [GBL] [1,4-BUTANEDIOL]
§ 893.135(1)(h), (1)(i), and (1)(j), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” [Gamma-hydroxybutyric acid (GHB)] [Gamma-butyrolactone (GBL)] [1,4-Butanediol] [or any mixture containing [GHB] [GBL] [1,4-Butanediol]] is a controlled substance.

To prove the crime of Trafficking in [GHB] [GBL] [1,4-Butanediol], the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [GHB] [GBL] [1,4-Butanediol] [or a mixture containing [GHB] [GBL] [1,4-Butanediol]].

3. The [GHB] [GBL] [1,4-Butanediol] [mixture containing [GHB] [GBL] [1,4-Butanediol]] weighed 1 kilogram or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold GHB, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] GHB or a mixture containing GHB.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or
c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature.~~ § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in [GHB] [GBL] [1,4-Butanediol]. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in [GHB] [GBL] [1,4-Butanediol], you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(h), (1)(i), and (1)(j), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [GHB] [GBL] [1,4-Butanediol] [mixture containing [GHB] [GBL] [1,4-Butanediol]] weighed 1 kilogram or more but less than 5 kilograms.

b. the [GHB] [GBL] [1,4-Butanediol] [mixture containing [GHB] [GBL] [1,4-Butanediol]] weighed 5 kilograms or more but less than 10 kilograms.

c. the [GHB] [GBL] [1,4-Butanediol] [mixture containing [GHB] [GBL] [1,4-Butanediol]] weighed 10 kilograms or more.

Lesser Included Offenses

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and amended in 2107.

25.13(d) TRAFFICKING IN PHENETHYLAMINES (INCLUDES MDMA)
§ 893.135(1)(k), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” [ (Specified substance) ] [Analogs, Isomers, or any mixture containing (specified substance(s)) ] is a controlled substance.

To prove the crime of Trafficking in Phenethylamines, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [

] [an analog, isomer, or mixture containing

3. The [ (specified substance) ] [analog, isomer, or mixture containing (specified substance(s)) ] weighed 10 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold MDMA, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] MDMA or a mixture containing MDMA.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Analog. § 893.02(2), Fla. Stat.
“Analog” means a structural derivative of a parent compound that is a controlled substance.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or

c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant) :

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~ . § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Phenethylamines. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Phenethylamines, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(k), Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the [

] [analog, isomer, or mixture containing

] weighed 10 grams or more but less than 200 grams.

b. the [ (specified substance) ] [analog, isomer, or mixture containing (specified substance(s)) ] weighed 200 grams or more but less than 400 grams.

c. the [ (specified substance) ] [analog, isomer, or mixture containing (specified substance(s)) ] weighed 400 grams or more.

Lesser Included Offenses

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and amended in 2017

25.13(e) TRAFFICKING IN LSD
§ 893.135(1)( l ), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Lysergic Acid Diethylamide (LSD) or any mixture containing LSD is a controlled substance.

To prove the crime of Trafficking in LSD, the State must prove the following three elements beyond a reasonable doubt:

knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was [LSD] [a mixture containing LSD].

3. The [LSD] [mixture containing LSD] weighed 1 gram or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold LSD, instructions on elements 1 and 2 below would be given.

intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] LSD or a mixture containing LSD.

Give if applicable.
The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or

b. The substance is in a container in the hand of or on the person, or
c. The substance is so close as to be within ready reach and is under the control of the person.

Give if applicable. § 893.02(19), Fla. Stat.
“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant) :

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. ~~there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature~~ . § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in LSD. ~~(Defendant)~~ ~~has raised this defense.~~

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Trafficking in LSD.

See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in LSD, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(l)1., Fla. Stat., to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. the LSD weighed 1 gram or more but less than 5 grams.

b. the LSD weighed 5 grams or more but less than 7 grams.

c. the LSD weighed 7 grams or more.

Lesser Included Offenses

Comments

This instruction was adopted in 2016 [xx So. 3d xx] and amended in 2017.

25.14 USE OR POSSESSION WITH INTENT TO USE DRUG PARAPHERNALIA
§ 893.147(1), Fla. Stat.

To prove the crime of Use or Possession With Intent to Use Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt:

knew of the presence of drug paraphernalia.

2. (Defendant) [used the drug paraphernalia] [or] [possessed the drug paraphernalia with intent to use it] to:

[plant] [propagate] [cultivate] [grow] [harvest] [manufacture] [compound] [convert] [produce] [process] [prepare] [test] [analyze] [pack]

[

repack] [store]

[

contain] [conceal] a controlled substance;

[inject] [ingest] [inhale] [or] [introduce] a controlled substance into the human body.

The Court instructs you that (name of substance) is a controlled substance.

Definitions.
Possession.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession of drug paraphernalia means the person is aware of the presence of the drug paraphernalia and:

The drug paraphernalia is in the hand of or on the person, or

The drug paraphernalia is in a container in the hand of or on the person, or

c. The drug paraphernalia is so close as to be within ready reach and is under the control of the person.

Constructive possession.
Constructive possession of drug paraphernalia means the person is aware of the presence of the drug paraphernalia, the drug paraphernalia is in a place over which the person has control, and the person has the ability to control the drug paraphernalia.

Give if applicable.
Mere proximity to drug paraphernalia is not sufficient to establish the power and intention to control that drug paraphernalia when the drug paraphernalia is in a place that the person does not control.

Give if applicable.
In order to establish (defendant’s) constructive possession of drug paraphernalia that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the drug paraphernalia was within [his] [her] presence and (2) exercised control or ownership over the drug paraphernalia itself.

Joint possession.
Possession of drug paraphernalia may be sole or joint, that is, two or more persons may be aware of the presence of the drug paraphernalia and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the drug paraphernalia.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of the drug paraphernalia, [or]

b. was within ready reach of the drug paraphernalia and the drug paraphernalia was under [his] [her] control, [or]

c. had exclusive control of the place where the drug paraphernalia was located,

you may infer that [he] [she] was aware of the presence of the drug paraphernalia and had the power and intention to control it.

If (defendant) did not have exclusive control over the place where drug paraphernalia was located, you may not infer [he] [she] had knowledge of the presence of the drug paraphernalia or the power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the drug paraphernalia and had the power and intention to control it if [he] [she] had joint control over the place where the drug paraphernalia was located, and the drug paraphernalia was located in a common area in plain view and in the presence of the defendant.

Drug Paraphernalia. § 893.145, Fla. Stat.
The term “drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance ~~in violation of this chapter[~~or a substance listed in § 877.111, Florida Statutes]. The Court instructs you that (name of substance) is a substance listed in § 877.111, Florida Statutes.

It includes, but is not limited to:

Give specific definition as applicable.

1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.

4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.

5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.

6. Diluents and adulterants, such as quinine hydrochloride, caffeine, dimethyl sulfone, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in ~~cutting~~diluting controlled substances or substances such as damiana leaf, marshmallow leaf, and mullein leaf, used, intended for use, or designed for use as carrier mediums of controlled substances.

7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances.

9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing ~~cannabis, cocaine, hashish, or hashish oil~~controlled substances or a substance listed in § 877.111, Florida Statutes, into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

b. Water pipes.

c. Carburetion tubes and devices.

d. Smoking and carburetion masks.

e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

f. Miniature cocaine spoons, and cocaine vials.

g. Chamber pipes.

h. Carburetor pipes.

i. Electric pipes.

j. Air-driven pipes.

k. Chillums.

l. Bongs.

m. Ice pipes or chillers.

Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of the drug laws.

3. The proximity of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

Lesser Included Offenses

POSSESSION OF DRUG PARAPHERNALIA — 893.147(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], ~~and~~ 2016 [xx So. 3d xx], and 2017.

25.15 DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA
§ 893.147(2), Fla. Stat.

To prove the crime of (crime charged) , the State must prove the following three elements beyond a reasonable doubt:

[delivered] [possessed with intent to deliver] [manufactured with intent to deliver] drug paraphernalia.

2. (Defendant) had knowledge of the presence of the drug paraphernalia.

3. (Defendant) knew or reasonably should have known that the drug paraphernalia would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.

The Court instructs you that (name of substance) is a controlled substance.

Definitions.
Possession. Give if possession with intent to deliver is charged.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession of drug paraphernalia means the person is aware of the presence of the paraphernalia and:

The drug paraphernalia is in the hand of or on the person, or

The drug paraphernalia is in a container in the hand of or on the person, or

The drug paraphernalia is so close as to be within ready reach and is under the control of the person.

Constructive possession.
Constructive possession of drug paraphernalia means the person is aware of the presence of the drug paraphernalia, the drug paraphernalia is in a place over which the person has control, and the person has the ability to control the drug paraphernalia.

Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):

a. had direct physical custody of drug paraphernalia, [or]

b. was within ready reach of drug paraphernalia and the drug paraphernalia was under [his] [her] control, [or]

c. had exclusive control of the place where drug paraphernalia was located,

you may infer that [he] [she] was aware of the presence of the drug paraphernalia and had the power and intention to control it.

If (defendant) did not have exclusive control over the place where the drug paraphernalia was located, you may not infer [he] [she] had knowledge of the presence of the drug paraphernalia or the power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the drug paraphernalia and had the power and intention to control it if [he] [she] had joint control over the place where the drug paraphernalia was located, and the drug paraphernalia was located in a common area in plain view and in the presence of the defendant.