Proposed criminal jury instructions

October 15, 2015 ANOTHER Regular News

Proposed criminal jury instructions

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

2.8 – RECORDED INTERVIEW
6.2 – ATTEMPTED MURDER – FIRST DEGREE (PREMEDITATED)
6.3 – ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-
ENUMERATED FELONY]
6.3(a) – ATTEMPTED FELONY MURDER – INJURY CAUSED Y ANOTHER
6.4 – ATTEMPTED SECOND DEGREE MURDER
6.6 – ATTEMPTED MANSLAUGHTER BY ACT
7.2 – FIRST DEGREE PREMEDITATED MURDER
7.3 – FIRST DEGREE FELONY MURDER
7.4 – SECOND DEGREE MURDER
7.5- SECOND DEGREE FELONY MURDER
7.6 – THIRD DEGREE FELONY MURDER
7.7 – MANSLAUGHTER
7.7(a) – AGGRAVATED MANSLAUGHTER
8.3 – BATTERY
8.25 – VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A
DOMESTIC VIOLENCE CHARGE
8.26 – VIOLATION OF [REPREAT] [SEXUAL][DATING] VIOLENCE INJUNCTION
10.1 – CARRYING A CONCEALED [WEAPON] [FIREARM]
21.16 – FALSE PERSONATING AN OFFICER
23.1 – MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR
ASSIGNATION
23.2 – SOLICITATION FOR THE PURPOSE OF PROSTITUTION OR A LEWD OR
INDECENT ACT
23.3 – RECEIVING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR
ASSIGNATION
23.4 – TRANSPORTING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS,
OR ASSIGNATION
23.5 – OFFERING TO COMMIT, COMMITTING, OR ENGAGINGING IN
PROSTITUTION, LEWDNESS, OR ASSIGNATION
23.6 – SOLICITING FOR PROSTITUTION, LEWDNESS, OR ASIIGNATION
23.7 – ENTERING FOR THE PRUPOSE OF PROSTITUTION, LEWDNESS, OR
ASSIGNATION
28.4(a) – LEAVING THE SCENE OF A CRASH
28.11 – DRIVING ON A SUSPENDED LICENSE
29.20 – ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]
29.21 – AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]
29.22 – NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT]

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 November 15, 2015. 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.

2.8 RECORDED INTERVIEW (EFFECT OF LAW ENFORCEMENT STATEMENTS ON THE DEFENDANT)

If a recorded interview can not be appropriately redacted because the recording would no longer make sense, the trial judge may consider giving a limiting instruction immediately before the recorded interview is played for the jury.
You are about to [hear] [watch] a recorded interview that contains assertions or opinions made by (name of law enforcement officer(s)) to (defendant) . These assertions or opinions are not offered so that you may consider them to be true. In fact, [except for warning those in custody of their constitutional rights,] Florida law allows the police to use deception during out-of-court interviews in order to obtain reactions and responses. Accordingly, any assertions or opinions made by (name of law enforcement officer(s)) during the interview is offered to you, and must be considered by you, only to establish the context of (defendant’s) reactions and responses.

Dubria v. Smith, 224 F. 3d 995 (9th Cir. 2000); Jackson v. State, 18 So. 3d 1016 (Fla. 2009); and McWatters v. State, 36 So. 3d 613 (Fla. 2010).

Comment

This instruction was adopted in 2016.
6.2 ATTEMPTED MURDER — FIRST DEGREE

(PREMEDITATED)
§§ 782.04(1)(a) and 777.04, Fla. Stat.

To prove the crime of Attempted First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

did some act intended to cause the death of

that went beyond just thinking or talking about it

acted

with a premeditated design to kill

The act would have resulted in the death of

except that someone prevented

from killing

or [he] [she] failed to do so.

~~Definition.~~
A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.

Give if applicable. Affirmative Defense of Complete and Voluntary Renunciation. § 777.04(5)(a), Fla._Stat. Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State, — So. 3d — (Fla. 1st DCA 2015).
It is ~~not an attempt~~ a defense to ~~commit first degree premeditated murder~~ the crime of Attempted First Degree Premeditated Murder if the defendant abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances that increased the probability of being apprehended.

If you find that the defendant proved by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit First Degree Premeditated Murder or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] not guilty of Attempted First Degree Premeditated Murder.

If the defendant failed to prove by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit First Degree Premeditated Murder or that [he] [she] otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of Attempted First Degree Premeditated Murder if all the elements of the charge have been proven beyond a reasonable doubt.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
An issue in this case is whether (defendant) did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:

there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and

c. there was not a reasonable amount of time for a reasonable person to cool off; and

d. a reasonable person would not have cooled off before committing the act that constituted the attempt to cause death; and

e. ~~the~~ (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that constituted the attempt to cause the death of (victim).

If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted First Degree Premeditated Murder.

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015).
If you find the defendant guilty of Attempted First Degree Premeditated Murder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1.__ At the time

(defendant)

committed the Attempted First Degree Premeditated Murder,

(victim)

was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer]

2. At that time, (victim) was engaged in the lawful performance of a legal duty .

3.____At that time, (defendant) knew that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer].

Definitions. § 943.10, Fla. Stat. Give as applicable.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

ATTEMPTED FIRST DEGREE (PREMEDITATED) MURDER — 782.04(1) and 777.04
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Attempted second degree (depraved mind) murder		782.04(2) and 777.04	6.4
Attempted manslaughter by act		782.07 and 777.04	6.6
	Aggravated battery	784.045	8.4
	Felony battery	784.041(1)	8.5
	Aggravated Assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comment s

Regarding the enhanced penalty under ~~Fla. Stat.~~ § 782.065 Fla. Stat., the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In ~~Thompson v. State~~ , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. In Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015), the Fifth DCA held that knowledge of a victim’s status as a law enforcement officer, etc., is an element of § 782.065, Fla. Stat.

As of December 2015, no case law addressed the issue of whether renunciation remains a defense to an attempt where some harm was done.

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2014 [137 So. 3d 995], and 2016.

6.3 ATTEMPTED FELONY MURDER
[ENUMERATED FELONY] [NON-ENUMERATED FELONY]
§ 782.051(1) and (2), Fla. Stat.

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

[committed] [attempted to commit] a

While engaged in the [commission] [attempted commission] [escape from the immediate scene] of

, the defendant [committed] [aided or abetted] an intentional act that is not an essential element of

This intentional act could have but did not cause the death of

(Crime alleged) is defined by Florida law as (define the crime) .

In order to convict the defendant of Attempted Felony Murder, it is not necessary for the State to prove that [he] [she] had a premeditated design or intent to kill.

If the underlying felony or attempted felony is charged as a separate count, read instruction 3.12(d) (Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007).

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015).
If you find the defendant guilty of Attempted Felony Murder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1.__ At the time

(defendant)

committed the Attempted Felony Murder,

(victim)

2. At that time, (victim) was engaged in the lawful performance of a legal duty .

Definitions. § 943.10, Fla. Stat. Give as applicable.

Lesser Included Offenses

6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] — § 782.051(1) and (2), Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Attempted Manslaughter By Act		782.07 & 777.04	6.6
	Aggravated Battery	784.045	8.4
	Felony Battery	784.041(1)	8.5
	Aggravated Assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comment s

~~Section~~ § 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in ~~section~~ § 782.04(3) , Fla. Stat.

~~Section~~ § 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in ~~section~~ § 782.04(3), Fla. Stat.

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014 [137 So. 3d 995], and 2016. ~~See~~ ~~Battle v. State~~ ~~, 911 So. 2d 85 (Fla. 2005).~~

6.3(a) ATTEMPTED FELONY MURDER — INJURY
CAUSED BY ANOTHER
§ 782.051(3) Fla. Stat.

To prove the crime of Attempted Felony Murder, the State must prove the following two elements beyond a reasonable doubt:

[committed] [attempted to commit] a

was injured during the [commission] [attempted commission] of an escape from the immediate scene of the

by an individual other than the person(s) [committing] [attempting to commit] [escaping from the immediate scene of] the

(Crime alleged) is defined by Florida law as (define the crime) .

In order to convict the defendant of a A ttempted f F elony m M urder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

1.__ At the time

(defendant)

committed the Attempted Felony Murder,

(victim)

2. At that time, (victim) was engaged in the lawful performance of a legal duty .

Definitions. § 943.10, Fla. Stat. Give as applicable.

Lesser Included Offenses

6.3(a) ATTEMPTED FELONY MURDER – INJURY CAUSED BY ANOTHER — § 782.051(3) Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA.STAT.	INS. NO.
None
	Attempted Manslaughter by Act	782.07 & 777.04	6.6

Comment s

~~Section~~ § 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in ~~section~~ § 782.04(3) , Fla. Stat.

Regarding the enhanced penalty under ~~Fla. Stat.~~ § 782.065 Fla. Stat., the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In ~~Thompson v. State~~ , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. In Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015 ), the Fifth DCA held that knowledge of a victim’s status as a law enforcement officer, etc., is an element of § 782.065, Fla. Stat.

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014 [137 So. 3d 995], and 2016.

6.4 ATTEMPTED SECOND DEGREE MURDER
§§ 782.04(2) and 777.04, Fla. Stat.

To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt:

intentionally committed an act which would have resulted in the death of

except that someone prevented

from killing

or [he] [she] failed to do so.

The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

~~Definitions~~
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

is done from ill will, hatred, spite, or an evil intent, and

is of such a nature that the act itself indicates an indifference to human life.

In order to convict the defendant of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

Give if applicable. Affirmative Defense of Complete and Voluntary Renunciation. § 777.04(5)(a), Fla._Stat. Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State, — So. 3d — (Fla. 1st DCA 2015).
It is ~~not an attempt~~ a defense to ~~commit second degree murder~~ the crime of Attempted Second Degree Murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.
Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances that increased the probability of being apprehended.

If you find that the defendant proved by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit Second Degree Murder or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] not guilty of Attempted Second Degree Murder.

If the defendant failed to prove by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit Second Degree Murder or that [he] [she] otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of Attempted Second Degree Murder if all the elements of the charge have been proven beyond a reasonable doubt.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.
An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation:

there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and

there was not a reasonable amount of time for a reasonable person to cool off; and

a reasonable person would not have cooled off before committing the act that would have resulted in death; and

~~the~~

(

was, in fact, so provoked and did not cool off before [he] [she] committed the act that would have resulted in the death of

If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Attempted Second Degree Murder.

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015).
If you find the defendant guilty of Attempted Second Degree Murder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1.__ At the time

(defendant)

committed the Attempted Second Degree Murder,

(victim)

2. At that time, (victim) was engaged in the lawful performance of a legal duty .

Definitions. § 943.10, Fla. Stat. Give as applicable.

Lesser Included Offenses

ATTEMPTED SECOND DEGREE MURDER — 782.04(2) and 777.04
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Attempted manslaughter by act		782.07 and 777.04	6.6
	Aggravated battery	784.045	8.4
	Felony battery	784.041(1)	8.5
	Aggravated Assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comment s

Regarding the enhanced penalty under ~~Fla. Stat.~~ § 782.065 Fla. Stat., the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In ~~Thompson v. State~~ , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. In Ramroop v. State , — So. 3d — (Fla. 5th DCA 2015) , the Fifth DCA held that knowledge of a victim’s status as a law enforcement officer, etc., is an element of § 782.065, Fla. Stat.

As of December 2015, no case law addressed the issue of whether renunciation remains a defense to an attempt where some harm was done.

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 1994 and amended in 1997 [697 So. 2d 84] , ~~and~~ 2014 [137 So. 3d 995], and 2016.

6.6 ATTEMPTED MANSLAUGHTER BY ACT
§§ 782.07 and 777.04, Fla. Stat.

To prove the crime of Attempted Manslaughter by Act, the State must prove the following element beyond a reasonable doubt:

(Defendant) intentionally committed an act [or procured the commission of an act], which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.

However, the defendant cannot be guilty of Attempted Manslaughter by Act by committing a merely negligent act. Each of us has a duty to act reasonably and use ordinary care toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Give only if procurement is alleged and proven.
To “procure” means to persuade, induce, prevail upon, or cause a person to do something.

In order to convict of Attempted Manslaughter by Act it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act which would have caused death and was not justifiable or excusable attempted homicide, as I have previously ~~explained those terms~~ instructed you .

Lesser Included Offenses

ATTEMPTED MANSLAUGHTER BY ACT— 782.07 and 777.04
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Aggravated bBattery	784.045	8.4
	Felony bBattery	784.041	8.5
	Battery	784.03	8.3
	Assault	784.011	8.1

Comments

In the event of any reinstruction on attempted ~~voluntary~~ manslaughter by act, the instructions on justifiable and excusable attempted homicide as previously given should be given at the same time. Hedges v. State, 172 So. 2d 824 (Fla. 1965).

There is no crime of attempted ~~involuntary manslaughter (~~ ~~i.e.~~ , manslaughter by culpable negligence. See Taylor v. State, 444 So. 2d 931 (Fla. 1983) ).

See Instruction 5.1 for the affirmative defense of renunciation.

This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2014 [132 So. 3d 1124] and 2016.

7.2 MURDER — FIRST DEGREE
§ 782.04(1)(a), Fla. Stat.

When there will be instructions on both premeditated and first degree felony murder, the following explanatory paragraph should be read to the jury.
There are two ways ~~in which~~ a person may ~~be convicted of~~ commit first degree murder. One is known as first degree premeditated murder and the other is known as first degree felony murder. Each theory of first degree murder has different requirements and I will instruct you on both. You may not find the defendant guilty of first degree murder unless all of you agree the State has proved that [he] [she] committed first degree murder. But all of you do not need to agree on the same theory.

If jury is to be instructed only on premeditated murder:
To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

is dead.

The death was caused by the criminal act of

There was a premeditated killing of

Definitions.
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

Transferred intent. Give if applicable.
If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and

c. there was not a reasonable amount of time for a reasonable person to cool off; and

d. a reasonable person would not have cooled off before committing the act that caused death; and

e. ~~the~~ (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim) .

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015).
If you find the defendant guilty of First Degree Murder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt:~~that~~ ~~(victim)~~

1. At the time

(defendant)

committed the act that caused the death of

(victim)

2. At that time,

(victim)

was

engaged in the lawful performance of a legal duty

3. At that time,

(defendant)

knew that

(victim)

Definitions

~~for enhanced penalty~~

. § 943.10, Fla. Stat.

Give as applicable.

Lesser Included Offenses

FIRST DEGREE (PREMEDITATED) MURDER — 782.04(1)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Second degree (depraved mind) murder		782.04(2)	7.4
Manslaughter		782.07	7.7
	Aggravated Manslaughter (Child)	782.07(3)	7.7(a)
	Second degree (felony) murder	782.04(3)	7.5
	Attempted felony murder	782.051(1)	6.3
	Attempted premeditated murder	782.04(1)	6.2
	Aggravated Manslaughter (Elderly Person/Disabled Adult)	782.07(2)	7.7(a)
	Aggravated Manslaughter (Officer/Firefighter/ EMT/Paramedic)	782.07(4)	7.7(a)
	Attempted second degree murder	782.04(2) & 777.04	6.4
	Attempted felony murder	782.051(2)	6.3
	Third degree (felony) murder	782.04(4)	7.6
	Vehicular homicide	782.071	7.9
	Attempted felony murder	782.051(3)	6.3(a)
	Aggravated battery	784.045	8.4
	Attempted Manslaughter by Act	782.07 & 777.04	6.6
	Felony Battery	784.041(1)	8.5
	Aggravated Assault	784.021	8.2
	Battery	784.03	8.3
	Culpable negligence	784.05(2)	8.9
	Culpable negligence	784.05(1)	8.9
	Assault	784.011	8.1

Comment

Regarding the enhanced penalty under ~~Fla. Stat.~~ § 782.065 Fla. Stat., the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In ~~Thompson v. State~~ , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. In Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015 ), the Fifth DCA held that knowledge of a victim’s status as a law enforcement officer, etc., is an element of § 782.065, Fla. Stat.

This instruction was adopted in 1981 and was amended in October 1981, 2008 [994 So. 2d 1038], ~~and~~ 2014 [137 So. 3d 995], and 2016.

7.3 FELONY MURDER — FIRST DEGREE
§ 782.04(1)(a), Fla. Stat.

To prove the crime of First Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

is dead.

Give 2a, 2b,

and/

or 2c as applicable.

2. a. While engaged in the commission of a[n] (felony alleged) ,
[ (defendant) ] [ (defendant’s) accomplice] caused the death of
(victim) .

b. While engaged in the attempt to commit a[n]

[

] [

accomplice] caused the

death of

c. While escaping from the immediate scene after

[committing] [attempting to commit] a[n]

[

]

[

accomplice] caused the death of

Give 3a if defendant was the person who actually killed the deceased.
3. a. [ (Defendant) was the person who actually killed (victim) . ]

Give 3b if defendant was not the person who actually killed the deceased.

[

was killed by a person other than

;

but

both

and the person who killed

were

principals in the commission of

]

In order to convict the defendant of First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

Define the crime alleged. If Burglary, also define crime that was the object of burglary.

If 2b above is given, also define “attempt” (see 5.1).

3. If 3b is given, immediately give principal instruction (3.5(a)).

4. Since the statute does not require its proof, it is not necessary to define “premeditation.”

5. If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007).

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015). Note: It is unclear whether an accomplice’s knowledge of the status of the victim can be imputed to the defendant.
If you find the defendant guilty of f F irst d D egree f F elony m M urder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1. At the time [

(defendant)

] [

(defendant’s accomplice)

]

committed the act that caused the death of

(victim)

2. At that time,

(victim)

was

engaged in the lawful performance of a legal duty

3. At that time, [

(defendant)

] [

(defendant’s accomplice)

]

knew that

(victim)

Definitions

~~for enhanced penalty~~

. § 943.10, Fla. Stat.

Give as applicable.

Lesser Included Offenses

FIRST DEGREE (FELONY) MURDER — 782.04(1)(a)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
	Second degree (depraved mind) murder	782.04(2)	7.4
Manslaughter		782.07	7.7
	Aggravated Manslaughter (Child)	782.07(3)	7.7(a)
	Second degree (felony) murder	782.04(3)	7.5
	Aggravated Manslaughter (Elderly Person/Disabled Adult)	782.07(2)	7.7(a)
	Aggravated Manslaughter (Officer/Firefighter/ EMT/Paramedic)	782.07(4)	7.7(a)
	Third degree (felony) murder	782.04(4)	7.6
	Aggravated battery	784.045	8.4
	Felony battery	784.041(1)	8.5
	Aggravated assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comment s

This instruction was adopted in 1981 and was amended in 1985, 1992 [603 So. 2d 1175], 2011 [53 So. 3d 1017], ~~and~~ 2014 [146 So. 3d 1110], and 2016.

7.4 MURDER — SECOND DEGREE
§ 782.04(2), Fla. Stat.

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

is dead.

2. The death was caused by the criminal act of (defendant) .

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions.
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and

a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and

there was not a reasonable amount of time for a reasonable person to cool off; and

a reasonable person would not have cooled off before committing the act that caused death; and

~~the~~

(

was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015).
If you find the defendant guilty of Second Degree Murder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1. At the time

(defendant)

committed the act that caused the death of

(victim)

2. At that time,

(victim)

was

engaged in the lawful performance of a legal duty

3. At that time,

(defendant)

knew that

(victim)

Definitions

~~for enhanced penalty~~

. § 943.10, Fla. Stat.

Give as applicable.

Lesser Included Offenses

SECOND DEGREE (DEPRAVED MIND) MURDER — 782.04(2)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Manslaughter		782.07	7.7
	Aggravated Manslaughter (Child)	782.07(3)	7.7(a)
	Aggravated Manslaughter (Elderly Person/Disabled Adult)	782.07(2)	7.7(a)
	Aggravated Manslaughter (Officer/Firefighter/ EMT/Paramedic)	782.07(4)	7.7(a)
	Third degree (felony) murder	782.04(4)	7.6
	Vehicular homicide	782.071	7.9
	(Nonhomicide lessers) Attempted Second Degree Murder	777.04(1)	6.4
	Aggravated Battery	784.045	8.4
	Attempted Manslaughter by Act	782.07 and 777.04	6.6
	Felony battery	784.041(1)	8.5
	Aggravated Assault	784.021	8.2
	Battery	784.03	8.3
	Culpable negligence	784.05(2)	8.9
	Culpable negligence	784.05(1)	8.9
	Assault	784.011	8.1

Comment

Regarding the enhanced penalty under ~~Fla. Stat.~~ § 782.065 Fla. Stat., the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In ~~Thompson v. State~~ , 695 So. 2d 691 (Fla. 1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. In Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015 ), the Fifth DCA held that knowledge of a victim’s status as a law enforcement officer, etc., is an element of § 782.065, Fla. Stat.

This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84], 2008 [994 So. 2d 1038], ~~and~~ 2014 [137 So. 3d 995], and 2016.

7.5 FELONY MURDER — SECOND DEGREE
§ 782.04(3), Fla. Stat.

To prove the crime of Second Degree Felony Murder, the State must prove the following four elements beyond a reasonable doubt:

is dead

2. (Defendant) was not the person who actually killed (victim), but (defendant) did commit or did knowingly aid, abet, counsel, hire, or otherwise procure the commission of a[n] (felony alleged) .

Give 3a, 3b, and/ or 3c as applicable.

death was caused during and was a consequence

of the commission of the

b. (Victim’s) death was caused during and was a consequence
of the attempted commission of the (felony alleged).

death was caused during and was a consequence

of the escape from the immediate scene of the [

] [attempt to commit the

4. The person who actually killed

was not involved in the commission or the attempt to commit the

1. Define the crime alleged. If Burglary, also define crime that was object of burglary.

2. If 3b above is given, also define “attempt” (see 5.1).

3. If the underlying felony is charged as a separate count, read instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So. 2d 218 (Fla. 2007).

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015). Note: It is unclear whether an accomplice’s knowledge of the status of the victim can be imputed to the defendant.
If you find the defendant guilty of s S econd d D egree f F elony m M urder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1. At the time [

(defendant)

] [

(defendant’s accomplice)

]

committed the act that caused the death of

(victim)

2. At that time,

(victim)

was

engaged in the lawful performance of a legal duty

3. At that time, [

(defendant)

] [

(defendant’s accomplice)

]

knew that

(victim)

Definitions

~~for enhanced penalty~~

. § 943.10, Fla. Stat.

Give as applicable.

Lesser Included Offenses

SECOND DEGREE (FELONY) MURDER — 782.04(3)
CATEGORY ONE	CATEGORY TWO	FLA.STAT.	INS. NO.
Manslaughter*		782.07	7.7
	Aggravated Manslaughter (Child)	782.07(3)	7.7(a)
	Aggravated Manslaughter (Elderly Person/Disabled Adult)	782.07(2)	7.7(a)
	Aggravated Manslaughter (Officer/Firefighter/ EMT/Paramedic)	782.07(4)	7.7(a)
	Third degree (felony) murder	782.04(4)	7.6

Comments

*Avila v. State, 745 So. 2d 983 (Fla. 4 ~~^th~~ th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], ~~and~~ 2014 [146 So. 3d 1110], and 2016.

7.6 FELONY MURDER — THIRD DEGREE
§ 782.04(4), Fla. Stat.

To prove the crime of Third Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

is dead.

Give 2a, 2b,

and/

or 2c as applicable.

2. a. While engaged in the commission of a[n]

[

] [

accomplice

] caused the death of

b. While engaged in the attempt to commit a[n] (felony alleged) ,
[ (defendant) ] [ (defendant’s accomplice ) ] caused the death of
(victim) .

c. While escaping from the immediate scene after [committing]
[attempting to commit] a[n] (felony alleged) , [ (defendant) ]
[ (defendant’s) accomplice] caused the death of (victim) .

Give 3a if defendant was the person who actually killed the deceased.

3. a.

[

was the person who actually killed

]

Give 3b if defendant was not the person who actually killed the deceased.

[

was killed by a person other than

; but both

and the person who killed

were principals in

the commission of

]

It is not necessary for the State to prove the killing was perpetrated with a design to effect death.

1. Define the crime alleged.

2. If 2b above is given, also define “attempt” (see 5.1).

3. If 3b is given, immediately give principal instruction (3.5(a)).

4. If the underlying felony is charged as a separate count, read

instruction 3.12(d)(Legally Interlocking Counts). Failure to do so

may result in an impermissible inconsistent verdict. See, e.g., Brown

v. State, 959 So. 2d 218 (Fla. 2007).

§ 782.065(2), Fla. Stat. ~~Enhanced penalty.~~ Give if applicable. Ramroop v. State, — So. 3d — (Fla. 5th DCA 2015). Note: It is unclear whether an accomplice’s knowledge of the status of the victim can be imputed to the defendant.
If you find the defendant guilty of t T hird d D egree f F elony m M urder, you must then determine whether the State has further proven the following three elements beyond a reasonable doubt : ~~that~~ ~~(victim)~~

1. At the time [

(defendant)

] [

(defendant’s accomplice)

]

committed the act that caused the death of

(victim)

2. At that time,

(victim)

was

engaged in the lawful performance of a legal duty

3. At that time, [

(defendant)

] [

(defendant’s accomplice)

]

knew that

(victim)

Definitions

~~for enhanced penalty~~

. § 943.10, Fla. Stat.

Give as applicable.

Lesser Included Offenses

THIRD DEGREE (FELONY) MURDER — 782.04(4)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Manslaughter		782.07	7.7
	Felony Battery	784.041(1)	8.5
	Aggravated assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1

Comment s

This instruction was adopted in 1981 and amended in 1992 [603 So. 2d 1775], 1994 [639 So. 2d 602], ~~and~~ 2014 [146 So. 3d 1110], and 2016.

7.7 MANSLAUGHTER
§ 782.07, Fla. Stat.

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

1. (Victim) is dead.

Give 2a, 2b, or 2c depending upon allegations and proof.

2. a.

intentionally committed an

act or acts that

caused the death of

b. (Defendant) intentionally procured an act that caused
the death of (victim).

c. The death of (victim) was caused by the culpable negligence of (defendant).

The defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide , as I have previously instructed you. :

~~Negligence:~~
Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

~~Justifiable Homicide:~~
The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. ~~§ 782.02, Fla. Stat~~ .

~~Excusable Homicide:~~
~~The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:~~

~~When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or~~

~~When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or~~

~~When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.~~

~~§ 782.03, Fla. Stat.~~

Give only if 2a alleged and proved.
In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.

Give only if 2b alleged and proved.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Give only if 2c alleged and proved.

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

~~§ 782.07(2)-(4), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable.~~
~~If you find the defendant guilty of manslaughter, you must then determine whether the State has further proved beyond a reasonable doubt that:~~

~~(Victim)~~

~~was at the time [an elderly person] [a disabled adult] whose death was caused by the neglect of~~

~~(defendant),~~

~~a caregiver.~~

~~(Victim)~~

~~was a child whose death was caused by the neglect of~~

~~(defendant)~~

~~, a caregiver.~~

~~(Victim)~~

was at the time [an officer] [a firefighter] [an emergency medical technician] [a paramedic] who was at the time performing duties that were within the course of [his] [her] employment. The court now instructs you that

~~(official title of victim)~~

~~[an officer] [a firefighter] [an emergency medical technician] [a paramedic].~~

~~Definitions. Give if applicable.~~
~~“Child” means any person under the age of 18 years.~~

~~§782.03, Fla. Stat.~~
~~“Dangerous weapon” is any weapon that, taking into account the manner in which it was used, is likely to produce death or great bodily harm.~~

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age, organic brain damage, or physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the persons own care or protection is impaired.

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the persons ability to perform the normal activities of daily living.

“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

~~As applied to an Elderly Person or a Disabled Adult.~~
“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or a disabled adult. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.

~~As applied to a Child.~~
~~“Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.~~

~~§ 825.102(3)(a) or § 827.03(3)(a), Fla. Stat. Give 1 or 2 as applicable.~~
~~“Neglect of [a child”] [an elderly person”] [a disabled adult”] means:~~

A caregiver’s failure or omission to provide [a child] [an elderly person] [a disabled adult] with the care, supervision, and services necessary to maintain [a child’s] [an elderly person’s] [a disabled adult’s] physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [child] [elderly person] [disabled adult];

~~2. A caregiver’s failure to make reasonable effort to protect [a child]~~
~~[an elderly person] [a disabled adult] from abuse, neglect or exploitation by another person.~~

Repeated conduct or a single incident or omission by a caregiver that results in, or could reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a disabled adult] may be considered in determining neglect .

~~Definitions. As applied to Designated Personnel.~~
~~§ 112.191 and § 633.35, Fla. Stat.~~
“Firefighter” means any full-time duly employed uniformed firefighter employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property there from, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertaining to the prevention and control of fires, who is certified by the Division of State Fire Marshal of the Department of Financial Services, who is a member of a duly constituted fire department of such employer or who is a volunteer firefighter.

~~§ 943.10(14), Fla. Stat.~~
~~“Officer” means any person employed or appointed as a full-time, part-time or auxiliary law enforcement officer, correctional officer, or correctional probation officer.~~

~~§ 401.23, Fla. Stat~~ .
~~“Emergency Medical Technician” means a person who is certified by the Department of Health to perform basic life support.~~

~~§ 401.23, Fla. Stat.~~
~~“Paramedic” means a person who is certified by the Department of Health to perform basic and advanced life support.~~

Lesser Included Offenses

MANSLAUGHTER – 782.07
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Vehicular homicide	782.071	7.9
	Vessel homicide	782.072	7.9
	(Nonhomicide lessers) Attempt	777.04(1)	5.1
	Aggravated assault	784.021	8.2
	Battery	784.03	8.3
	Assault	784.011	8.1
	Culpable negligence	784.05	8.9

Comment s

In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable homicide as previously given should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla. 1965).

In appropriate cases, an instruction on transferred intent should be given.

~~Trial judges should carefully study~~ See Eversley v. State, 748 So.2d 963 (Fla. 1999), in any ~~manslaughter~~ case in which causation is an issue to determine if a special jury instruction on causation is needed.

To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included offenses require proof of knowing that the commission of the offense was on an officer who was engaged in the lawful performance of a legal duty.

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 1994 [636 So.2d 502], 2005 [911 So.2d 1220], 2006 [946 So.2d 1061], 2008 [997 So. 2d 403], 2010 [41 So.3d 853], ~~and~~ 2011 [75 So. 3d 210], and 2016.

7.7(a) AGGRAVATED MANSLAUGHTER
§ 782.07(2), § 782.07(3), and § 782.07(4), Fla. Stat.

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

1. (Victim) is dead.

2. The death of

(victim)

was caused by the culpable negligence of

(defendant).

Give 3a or 3b as applicable.

3. a. (Victim) was at the time [an elderly person] [a disabled
adult] [a child] and (victim’s) death was caused by the
neglect of (defendant) , a caregiver for (victim) .

(Victim)

was [an officer] [a firefighter] [an

emergency medical technician] [a paramedic] who was at

the time performing duties that were within the course of

[his] [her] employment.

Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. The defendant cannot be guilty of manslaughter by causing a death because of a merely negligent act. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

The defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously instructed you.

Definitions. Give as applicable.
§ 825.101(4), Fla. Stat.
“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age, organic brain damage, or physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the persons own care or protection is impaired.

§ 825.101(3), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the persons ability to perform the normal activities of daily living.

§ 827.01(2), Fla. Stat.
“Child” means any person under the age of 18 years.

As applied to an Elderly Person or a Disabled Adult. § 825.101(2), Fla. Stat.
“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or a disabled adult. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.

§ 825.101(6), Fla. Stat.
“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

As applied to a Child. § 827.01(1), Fla. Stat.
“Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

§ 825.102(3)(a) or § 827.03(3)(e), Fla. Stat.
“Neglect of [a child”] [an elderly person”] [a disabled adult”] means:

2. A caregiver’s failure to make reasonable effort to protect [a child]
[an elderly person] [a disabled adult] from abuse, neglect or exploitation by another person.

Neglect may be based on repeated conduct or on a single incident or omission by a caregiver that results in, or could reasonably be expected to result in, serious physical or [psychological] [mental] injury, or a substantial risk of death to [a child] [an elderly person] [a disabled adult].

Definitions. As applied to Designated Personnel.
§ 943.10(14), Fla. Stat. See § 943.10, Fla. Stat., for further definitions.
“Officer” means any person employed or appointed as a full-time, part-time or auxiliary law enforcement officer, correctional officer, or correctional probation officer.

§ 112.191 and § 633.35, Fla. Stat.
“Firefighter” means any full-time duly employed uniformed firefighter employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property there from, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertaining to the prevention and control of fires, who is certified by the Division of State Fire Marshal of the Department of Financial Services, who is a member of a duly constituted fire department of such employer or who is a volunteer firefighter.

§ 401.23, Fla. Stat .
“Emergency Medical Technician” means a person who is certified by the Department of Health to perform basic life support.

§ 401.23, Fla. Stat.
“Paramedic” means a person who is certified by the Department of Health to perform basic and advanced life support.

Lesser Included Offenses

AGGRAVATED MANSLAUGHTER — 782.07(2), 782.07(3), AND 782.07(4)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Manslaughter		782.07	7.7
*Neglect by Culpable Negligence of a[n] [Elderly Person] [Disabled Adult] [Child] Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement		825.102(3)(b)or 827.03(2)(b)	29.22 or 16.5
*Neglect by Culpable Negligence of a[n] [Elderly Person] [Disabled Adult] [Child] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement		825.102(3)(c)or 827.03(2)(d)	29.22 or 16.6
*Culpable Negligence Inflicting Injury		784.05(2)	8.9
*Culpable Negligence Exposing Another to Injury		784.05(1)	8.9

Comments

*Non-homicide lesser-included offenses do not have to be given if the parties agree causation is not in dispute and that the victim is dead.

There is no statutory requirement that the defendant have knowledge of victim’s status and as of December 2015, there was no case law addressing that issue.
This instruction was adopted in 2016.

8.3 BATTERY
§ 784.03, Fla. Stat.

To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

Give 1 and/ or 2 as applicable.

[

intentionally touched or struck

against [his] [her] will.

]

2. [ (Defendant) intentionally caused bodily harm to (victim) . ]

Give if the defendant is charged with having a prior conviction for battery, felony battery, or aggravated battery and after the jury found the defendant guilty. § 784.03(2), Fla. Stat. State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
Now that you have found (defendant) guilty of Battery, you must determine whether the State proved beyond a reasonable doubt that [he] [she] has a prior conviction for battery [or aggravated battery] [or felony battery].

“Conviction” means a determination of guilt that resulted from a plea or trial, regardless of whether [he] [she] was adjudicated guilty or whether adjudication was withheld.

Lesser Included Offenses

BATTERY — 784.03
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was approved in 1981 and amended in 2016.

8.25 VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A
DOMESTIC VIOLENCE CHARGE
§ 741.29(6), Fla. Stat.

To prove the crime of Violation of a Condition of Pretrial Release from a Domestic Violence Charge, the State must prove the following four elements beyond a reasonable doubt:

was arrested for an act of domestic violence.

Before [his] [her] trial,

release on the domestic violence charge was set with a condition of

3. (Defendant) knew that a condition of [his] [her] pretrial release was (insert condition) .

4. (Defendant) willfully violated that condition of pretrial release by (insert the manner in which the defendant is alleged to have violated pretrial release) .

Definitions.
§ 741.28, Fla. Stat.
“Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

“Family or household members” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Patterson v. State, 512 So. 2d 1109 (Fla. 1

~~^st~~

DCA 1987).

“ Willfully” means knowingly, intentionally and purposely.

Give if the defendant is charged with violating a no contact order. § 903.047, Fla. Stat.
An order of “no contact” is effective immediately and is valid for the duration of the pretrial release or until it is modified by a judge. Unless otherwise stated by the judge, “no contact” means it is prohibited for (defendant) to have communicated orally or in any written form, either in person, telephonically, electronically, or in any other manner, either directly or indirectly through a third person, with (victim) or any other person named in the order.
It is also a violation of a “no contact” order if (defendant) had physical or violent contact with (victim) or other named person or his or her property.

Lesser Included Offense s

VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A DOMESTIC VIOLENCE CHARGE — 741.29(6)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2014 [141 So. 3d 1201] and amended in 2016.

8.26 VIOLATION OF INJUNCTION FOR PROTECTION
AGAINST [REPEAT] [SEXUAL] [DATING] VIOLENCE
§ 784.047, Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against [Repeat] [Sexual] [Dating] Violence, the State must prove the following two elements beyond a reasonable doubt:

An injunction for protection against [repeat] [sexual] [dating] violence was issued by a court against

(defendant)

for the benefit of

(victim).

2. (Defendant) willfully violated the injunction by:

Give as alleged.

refusing to vacate the dwelling that the parties share.

b. going to, or being within 500 feet of (victim’s) residence, school, place of employment, or a specified place frequented regularly by (victim) and any named family or household member.

c. committing an act of [repeat] [sexual] [dating] violence against (victim) .

d. committing any violation of the injunction through an intentional unlawful threat, word, or act to do violence to (victim) .

e. telephoning, contacting, or otherwise communicating with (victim) directly or indirectly, unless the injunction specifically allows indirect contact through a third party.

f. knowingly and intentionally coming within 100 feet of (victim’s) motor vehicle, whether or not that vehicle is occupied.

g. defacing or destroying (victim’s) personal property, including [his] [her] motor vehicle.

h. refusing to surrender firearms or ammunition if ordered to do so by the court.

If element #2c is given, insert the appropriate definitions of “violence,” “repeat violence,” “sexual violence,” and/or “dating violence” from § 784.046(1), Fla. Stat. and the elements of any appropriate crime(s) supported by the evidence.

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

Lesser Included Offense

VIOLATION OF INJUNCTION FOR PROTECTION AGAINST [REPEAT] [SEXUAL] [DATING] VIOLENCE —784.047
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2016.

10.1 CARRYING A CONCEALED [WEAPON] [FIREARM]

§ 790.01, Fla. Stat.

To prove the crime of Carrying a Concealed [Weapon] [Firearm], the State must prove the following two * elements beyond a reasonable doubt:

knowingly carried on or about [his] [her] person [a firearm] [a weapon] [an electric weapon or device].

2. The [firearm] [weapon] [electric weapon or device] was concealed from the ordinary sight of another person.

Ensor v. State, 403 So. 2d 349 (Fla. 1981); Dorelus v. State, 747 So. 2d 368 (Fla. 1999).
The term “on or about [his] [her] person” means physically on the person or readily accessible to [him] [her].

The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. A [firearm] [weapon] need not be completely hidden for you to find that it was concealed. However, a [firearm] [weapon] is not concealed if, although not fully exposed, its status as a [firearm] [weapon] is detectable by ordinary observation.

Definition. Give as applicable. § 790.001, Fla. Stat.
A “concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person.

R.R. v. State, 826 So. 2d 465 (Fla. 5~~^th~~th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1~~^st~~st DCA 2005).
A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm.An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

“Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [**The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is (insert definition in 790.001(1), Fla. Stat.] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.].

Lesser Included Offense s

CARRYING A CONCEALED WEAPON OR FIREARM— 790.01(1) and (2)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comments

*In Mackey v. State, 124 So. 3d 176 (Fla. 2013), the Florida Supreme Court held the absence of a license was not an element of the offense because licensure was an affirmative defense. However, in 2015, the legislature changed the wording of § 790.01, Fla. Stat., that could alter the interpretation of the statute. For crimes committed on or after May 21, 2015, trial judges may need to amend this instruction after deciding whether the absence of a license is a third element for the State to prove beyond a reasonable doubt or whether licensure is still an affirmative defense. If an affirmative defense, trial judges also need to determine which party has the burden of persuasion and by what standard (e.g, preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt).

See § 790.25(5), Fla. Stat., for the defense for adults who carry weapons for self-defense or another lawful purpose within the interior of a private conveyance if securely encased or otherwise not readily accessible for immediate use. See Santiago v. State, 77 So. 3d 874 (Fla. 4~~^th~~th DCA 2012) for the law on carrying a concealed weapon within one’s own home. See § 790.01(3), Fla. Stat., for other exceptions to the crime of Carrying a Concealed Weapon or Firearm. A special instruction will be required if any of these provisions are applicable.

**It is unclear whether a defendant who carries a concealed antique firearm is guilty of § 790.01, Fla. Stat. Contrast the language in Bostic v. State, 902 So. 2d 225 (Fla. 5th DCA 2005) with the language in Williams v. State, 492 So. 2d 1051 (Fla. 1986), receded from on other grounds by Brown v. State, 719 So. 2d 882 (Fla. 1998).

**A claim that a firearm is an antique firearm is an affirmative defense. State v. Thompson, 390 So. 2d 715 (Fla. 1980). In the absence of case law, trial judges will need to determine which party has the burden of persuasion and by what standard (e.g, preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt).

This instruction was adopted in 1981 and was amended in 1989 ~~and~~ [543 So. 2d 1205], 2013 [131 So. 3d 720], and 2016.

21.16 FALSELY PERSONATING AN OFFICER
§ 843.08, Fla. Stat.

To prove the crime of Falsely Personating An Officer, the State must prove the following [two] [three] elements beyond a reasonable doubt:

(

falsely assumed or pretended to be a[n] [police officer] [deputy sheriff] [sheriff]

[firefighter]

[officer of the Fish and Wildlife Conservation Commission]

~~[officer of the Department of Transportation]~~

[fire or arson investigator of the Department of Financial Services]

[officer of the Department of Corrections] [correctional probation officer] [state attorney] [assistant state attorney] [statewide prosecutor] [assistant statewide prosecutor] [state attorney investigator] [coroner] [lottery special agent] [lottery investigator] [beverage enforcement agent] [watchman] [member of the

~~Parole~~

Florida

Commission

on Offender Review

] [administrative aide to the

~~Parole~~

Florida

Commission

on Offender Review

] [supervisor employed by the

~~Parole~~

Florida

Commission

on Offender Review

] [representative or personnel of the Department of Law Enforcement] [federal law enforcement officer].

While doing so,

) [took it upon [himself] [herself] to act as such an officer] [required [someone] [

] to aid or assist [him] [her] in a matter pertaining to the duty of such an officer].

Give if applicable.

The impersonation occurred during the commission of

a felony.

The court instructs you that (name of felony) is a felony. A[n] (name of felony) is defined as (insert elements of felony) .

Definition s . Give if applicable.
§ 901.1505, Fla. Stat.

A federal law enforcement officer is a person who is employed by the Federal Government as a full-time law enforcement officer, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to training for Florida law enforcement officers.

§ 843.08, Fla. Stat.
A “watchman” means a security officer licensed under Chapter 493 of the Florida Statutes.

See other statutes for definitions of other officers, if needed.

Give if applicable.
If you find the defendant guilty of Falsely Personating an Officer and that the impersonation occurred during the commission of a felony, you must then determine whether the State has proven beyond a reasonable doubt that the commission of the felony resulted in [death] [or] [personal injury] to another human being.

Lesser Included Offenses

FALSELY PERSONATING AN OFFICER — 843.08
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013 [122 So. 3d 302] and amended in 2016.

23.1 MAINTAINING A PLACE OF PROSTITUTION,
LEWDNESS, OR ASSIGNATION
§ 796.07(2)(a), Fla. Stat.

To prove the crime of Maintaining a Place of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [established] [owned] [maintained] [operated] any [place] [structure] [building] [conveyance] for the purpose of [lewdness] [assignation] [prostitution].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Maintaining a Place of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(b), Fla. Stat.
“Lewdness” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

§ 796.07(1)(c), Fla. Stat.
“Assignation” means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

§ 810.011(1), Fla. Stat.
A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

§ 810.011(3), Fla. Stat.
A “conveyance” means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car.

§ 796.07(1)(d), Fla. Stat.
“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

Lesser Included Offense s

MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION — 796.07(2)(a), Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment s

The crime in § 790.07(2)(a), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.2 SOLICITING FOR THE PURPOSE OF PROSTITUTION
OR A LEWD OR INDECENT ACT
§ 796.07(2)(b), Fla. Stat.

To prove the crime of Soliciting for the Purpose of [Prostitution] [Any Lewd or Indecent Act], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered] [offered to secure] [agreed to secure] another person for the purpose of [prostitution] [any lewd or indecent act].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Soliciting for the Purpose of [Prostitution] [Any Lewd or Indecent Act], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(b), Fla. Stat.
A “lewd act” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

The crime in § 790.07(2)(b), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.3 RECEIVING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS OR ASSIGNATION
§ 796.07(2)(c), Fla. Stat.

To prove the crime of Receiving for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

Give element 1 or element 2 as applicable.
1. (Defendant) [received] [offered to receive] [agreed to receive] a person into a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

2. (Defendant) permitted a person to remain in a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Receiving for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(c), Fla. Stat.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

§ 810.011(3), Fla. Stat.
A “conveyance” means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

The crime in § 790.07(2)(c), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.4 TRANSPORTING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS OR ASSIGNATION
§ 796.07(2)(d), Fla. Stat.

To prove the crime of Transporting for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following two elements beyond a reasonable doubt:

[directed] [took] [transported] [offered or agreed to [direct] [take] [transport]] a person to [a place] [a structure] [a building] [another person].

At the time,

knew or had reasonable cause to believe that such [directing] [taking] [transporting] was for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Transporting for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(c), Fla. Stat.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

The crime in § 790.07(2)(d), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.5 OFFERING TO COMMIT, COMMITTING, OR ENGAGING IN
PROSTITUTION, LEWDNESS, OR ASSIGNATION
§ 796.07(2)(e), Fla. Stat.

To prove the crime of Offering to Commit, Committing, or Engaging in [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered to commit] [committed] [engaged in] [prostitution] [lewdness] [assignation].

Give if applicable. ~~Fla. Stat.~~ § 796.036 Fla. Stat .
If you find the defendant guilty of Offering to Commit, Committing, or Engaging in [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

b. The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(c), Fla. Stat.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

The crime in § 790.07(2)(e), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.6 SOLICITING FOR PROSTITUTION, LEWDNESS, OR ASSIGNATION
§ 796.07(2)(f), Fla. Stat.

To prove the crime of Soliciting for [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [solicited] [induced] [enticed] [procured] another to commit [prostitution] [lewdness] [assignation].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Soliciting for [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(c), Fla. Stat.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

~~To “solicit” means to ask earnestly or to try to induce the person solicited to do the thing solicited.~~
§ 777.04(2), Fla. Stat.
To “solicit” means to command, encourage, hire, or request another person to engage in specific conduct.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

The crime in § 790.07(2)(f), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ], ~~and~~ 2013 [122 So. 3d 302], and 2016.

23.7 ENTERING FOR THE PURPOSE OF PROSTITUTION,
LEWDNESS, OR ASSIGNATION
§ 796.07(2)(g), Fla. Stat.

To prove the crime of Entering for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

( Defendant) [resided in] [entered] [remained in] a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Give if applicable. ~~Fla. Stat.~~ § 796.036 , Fla. Stat .
If you find the defendant guilty of Entering for the Purpose of [Prostitution] [Lewdness] [Assignation], you must then determine whether the State has proven beyond a reasonable doubt that:

A minor was engaged in the [prostitution] [lewdness] [assignation] [sexual conduct] [

]; and,

The minor was not the person charged in this case.

Definitions.
§ 796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

§ 796.07(1)(c), Fla. Stat.
“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

§ 810.011(3), Fla. Stat.
A “conveyance” means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car.

Lesser Included Offense s

ENTERING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION — 796.07(2)(g), Fla. Stat.
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment s

The crime in § 790.07(2)(g), Fla. Stat., is enhanced based on the number of prior violations. Florida courts have treated the existence of a prior violation that enhances the severity of the offense as a fact that must be found by the jury. If the information or indictment contains an allegation of one or more prior violations, do not read the allegation of prior violations to the jury or send the charging document into the jury room. If the defendant is found guilty of the current charge, the historical fact of a prior violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 1981 and amended in 2008 [995 So. 2d 476], 2010 [48 So. 3d 41], ~~and~~ 2013 [122 So. 3d 302], and 2016.

28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY
§ 316.061(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property, the State must prove the following four elements beyond a reasonable doubt:

was the driver of a vehicle involved in a crash

or accident

2. The crash or accident resulted only in damage to a vehicle or other property.

3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].

4. (Defendant) failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given “identifying information” to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or accident or who is investigating the crash or accident].

If the State proves that the defendant failed to give any part of the “identifying information,” the State satisfies this element of the offense.

~~Fla. Stat.~~ 316.062(1) , Fla. Stat .
“Identifying information” means the name, address, vehicle registration number, and if available and requested, the exhibition of the defendant’s license or permit to drive.

~~Fla. Stat.~~ 316.003(75) , Fla. Stat.
“Vehicle” means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY—316.061(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1

Comment s

As of December 2015, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage to violate this statute. Compare State v. Dorsett , 158 So. 3d 557 (Fla. 2015) and Mancuso v. State , 652 So. 2d 370 (Fla. 1995) dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2016.

28.11 DRIVING WHILE LICENSE SUSPENDED, REVOKED OR
CANCELED WITH KNOWLEDGE
§ 322.34(2), Fla. Stat.

To prove the crime of Driving While [License] [Driving Privilege] is was [Suspended] [Revoked] [Canceled], the State must prove the following three elements beyond a reasonable doubt:

drove a motor vehicle upon a highway in this state.

At the time, [[his] [her]] [[license] [driving privilege]] was [suspended] [revoked] [canceled].

At the time

drove a motor vehicle upon a highway in this state,

knew that [[his] [her]] [[license] [driving privilege]] was [suspended] [revoked] [canceled].

Whether (defendant) knew of the [suspension] [revocation] [cancellation] is a question to be determined by you from the evidence.

Give as applicable. See § 322.251(1), (2), and § 322.34(2), (3),(4), Fla. Stat.
Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was given by personal delivery is proof that such notice was given.

Proof that there exists an entry in the records of the Department of Highway Safety and Motor Vehicles showing that notice of the [suspension] [revocation] [cancellation] was deposited in United States mail, first class, postage prepaid, addressed to the licensee at [his][her] last known mailing address furnished to the department, is proof that such notice was sent.

If you find that (defendant) had been previously cited for driving while license [suspended] [revoked] [canceled] and [his] license had not been reinstated, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that (defendant) admitted to knowing of the [suspension] [revocation] [cancellation], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].
If you find that (defendant) had received a traffic citation that contained a provision notifying (defendant) that [his] [her] license had been suspended, revoked, or canceled, you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

Do not give if the suspension was for failure to pay a traffic fine or for a financial responsibility violation. See § 322.34(2) and § 322.251(1), (2), Fla. Stat.
If you find that (defendant) had received a [judgment] [order] rendered by [a court] [an adjudicatory body] which contained a provision notifying (defendant) that [his] [her] license had been [suspended] [revoked] [canceled], you may conclude that (defendant) knew of the [suspension] [revocation] [cancellation].

If you find that the records of the Department of Highway Safety and Motor Vehicles include a [judgment] [order] rendered by [a court] [an adjudicatory body] which contains a provision notifying (defendant) that [his] [her] license had been [suspended], [revoked] [canceled], you are permitted to assume that (defendant) knew [his] [her] license was [suspended] [revoked] [canceled]. This presumption, however, is rebuttable, and you may accept or reject the presumption depending upon the circumstances of the crime and the facts presented at trial.

Definitions. Give if applicable.
§ 322.01(15), Fla. Stat.
“Drive” means to operate [ or be in actual physical control of ] a motor vehicle in any place open to the general public for purposes of vehicular traffic.

§ 322.01(27), Fla. Stat.
“Motor vehicle” means any vehicle which is self-propelled, including a “moped,” but not any vehicle moved solely by human power, motorized wheelchair or motorized bicycle.

§ 322.01 ( 39), Fla. Stat.
“Street or Highway” means the entire width between the boundary lines of every way or place if any part thereof is open to the use of the public for purposes of vehicular traffic.

§ 322.251, Fla. Stat.
“Notice” means personal delivery or deposit in the United States mail, first class, postage prepaid, addressed to the defendant at [his] [her] last known address furnished to the Department of Highway Safety and Motor Vehicles. Mailing by the department shall constitute notification.

~~Optional Definitions.~~
§ 322.01(40), Fla. Stat.
“Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn.

§ 322.01(36), Fla. Stat .
“Revoked” means the privilege to drive a motor vehicle has been terminated.

§ 322.01(5), Fla. Stat.
“Canceled” means that a license has been declared void and terminated.

The option of “on a vehicle” pertains to vehicles such as motorcycles.
“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] is actually operating the vehicle at the time.

~~§ 322.251(1), Fla. Stat.~~
~~Failure by the defendant to receive the mailed order shall not affect or stay the effective date or term of the [cancellation], [suspension], [revocation] of the defendant’s driving privilege.~~

Give if the defendant is charged with having prior(s) and after the jury finds the defendant guilty of Driving with License Canceled, Suspended, or Revoked. See §322.34(2), Fla. Stat. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000) and Raulerson v. State, 763 So. 2d 285 (Fla. 2000).
Now that you have found the defendant guilty of Driving While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled], you must determine whether the State proved beyond a reasonable doubt that [he] [she] was previously convicted [two times] of Driving While [License] [Driving Privilege] was [Suspended] [Revoked] [Canceled].

“Conviction” means a determination of guilt that resulted from a plea or trial, regardless of whether [he] [she] was adjudicated guilty or whether adjudication was withheld.

Lesser Included Offenses

DRIVING WHILE LICENSE SUSPENDED, REVOKED OR CANCELED, WITH KNOWLEDGE — § 322.34
CATEGORY ONE	CATEGORY TWO	FLA. STAT	INS. NO.
No Valid Driver’s License		322.03	28.9
	Attempt	777.04(1)	5.1

Comment s

Pursuant to § 322.251(1), Fla. Stat., failure to receive the mailed order shall not affect or stay the effective date or term of the cancellation, suspension, or revocation of the defendant’s driving privilege.

This instruction was adopted in 1981, and amended in 2007 [958 So. 2d 361] , ~~and~~ 2013 [131 So. 3d 692], and 2016.

29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]
§ 825.102(1), Fla. Stat.

To prove the crime of Abuse of [An Elderly Person] [A Disabled Adult], the State must prove the following two elements beyond a reasonable doubt:

knowingly or willfully

abused

(victim)

by:

Give as applicable.

intentionally inflict

ing

physical or psychological injury upon

committ

ing

an intentional act that could reasonably be expected to result in physical or psychological injury to

actively encourag

ing

another person to commit an act that resulted in or could reasonably have been expected to result in physical or psychological injury to

At the time,

was [an elderly person] [a disabled adult].

Definitions. Give as applicable.
§ 825.101( 4 3 ), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

§ 825.101( 5 4 ), Fla. Stat.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

~~Patterson v. State, 512 So. 2d 1109 (Fla. 1~~

~~^st~~

~~DCA 1987).~~

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

Lesser Included Offenses

ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(1)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Battery	784.03	8.3
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013 [131 So. 3d 692] and 2016.

29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON]
[A DISABLED ADULT]
§ 825.102(2), Fla. Stat.

To prove the crime of Aggravated Abuse of [An Elderly Person] [Disabled Adult], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable.

committed aggravated battery upon

willfully tortured

maliciously punished

willfully and unlawfully caged

knowingly or willfully abused

and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.

At the time,

was [an elderly person] [a disabled adult].

§ 825.101( 5 4 ), Fla. Stat.

Give if element 1a is charged.
§ 784.045, Fla. Stat.
In order to prove that an aggravated battery was committed, the State must prove the following:

intentionally touched or struck

against the will of

caused bodily harm to

In so doing,

intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or

[

used a deadly weapon

]

Give if applicable.
A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Give if element 1b, 1d, or 1e is charged.

~~Patterson v. State, 512 So. 2d 1109 (Fla. 1~~

~~^st~~

~~DCA 1987).~~

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

Give if element 1c is charged.

“Maliciously” means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable person would not have engaged in the damaging acts toward ~~the victim~~ (victim) for any valid reason and that the primary purpose of the acts was to cause ~~the victim~~ (victim) unjustifiable pain or injury.

Give if element 1e is charged.
“Abused” means the [intentional infliction of physical or psychological injury upon [an elderly person] [a disabled adult]] [commission of an intentional act that could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]].

Lesser Included Offenses

AGGRAVATED ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.102(2)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Aggravated Battery if ~~Fla. Stat.~~ 825.102(2)(a), Fla. Stat., is charged		784.045	8.4
Abuse of An Elderly Person or Disabled Adult		825.102(1)	29.20
Felony Battery if ~~Fla. Stat.~~ 825.102(2)(a), Fla. Stat., is charged		784.041(1)	8.5
Battery if ~~Fla. Stat.~~ 825.102(2)(a), Fla. Stat., is charged		784.03	8.3
	Attempt	777.04(1)	5.1

Comment

This instruction was adopted in 2013 [131 So. 3d 692] and 2016.

29.22 NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT]
§ 825.102(3), Fla. Stat.

To prove the crime of Neglect of [An Elderly Person] [A Disabled Adult], the State must prove the following three elements beyond a reasonable doubt:

was a caregiver for

2. (Victim) was [an elderly person] [a disabled adult].

3. (Defendant)

Give as applicable.

[willfully]

[or]

failed or omitted to provide

with the care, supervision, and services necessary to maintain

physical or mental health.

failed to make a reasonable effort to protect

from

[

abuse

]

[

neglect

]

[

] [

exploitation

]

by another person.

Give if the § 825.102(3)(b), Fla. Stat. , is charged.
If you find the defendant guilty of Neglect of [An Elderly Person] [A Disabled Adult], you must then determine whether the State proved beyond a reasonable doubt that the defendant’s failure or omission caused [great bodily harm] [permanent disability] [or] [permanent disfigurement] to (victim).

Definitions.
Give if applicable. § 825.101( 4 3 ), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

Give if applicable. § 825.101( 5 4 ), Fla. Stat.
“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional
dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Give in all cases. § 825.101(2), Fla. Stat.
“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of [an elderly person] [a disabled adult]. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities. [“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.]

Give if “willfully” is charged within element 3a.

Patterson v. State, 512 So. 2d 1109 (Fla. 1

~~^st~~

DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

Give if “culpable negligence” is charged within element 3a.
I will now define what is meant by the term “culpable negligence”: Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Give if element 3a is charged. § 825.102(3)(a), Fla. Stat.
“Care, supervision, and services necessary to maintain the [elderly person’s] [disabled adult’s] physical and mental health” include, but are not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [elderly person] [disabled adult].

Give if “abuse” is charged within element 3b. § 825.102(1), Fla. Stat.
“Abuse” means the [intentional infliction of physical or psychological injury upon [an elderly person] [a disabled adult]] [commission of an intentional act that could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to [an elderly person] [a disabled adult]].

~~Give if “neglect” is charged within element 3b.~~ § 825.102(3), Fla. Stat.
Neglect of [an elderly person] [a disabled adult] may be based on repeated conduct or on a single incident or omission that resulted in, or reasonably could have been expected to result in, serious physical or psychological injury, or a substantial risk of death, to [an elderly person] [a disabled adult].

If “exploitation” is charged within element 3b, insert the elements from Instruction 14.9. See § 825.103, Fla. Stat.

Lesser Included Offenses

NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] — 825.102(3)(b)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Neglect of [An Elderly Person] [A Disabled Adult] Without Causing Great Bodily Harm, Permanent Disability, or Permanent Disfigurement		825.102(3)(c)	29.22
Culpable Negligence Inflicting Actual Personal Injury, if culpable negligence is charged		784.05(2)	8.9
Culpable Negligence Exposing Another Person to Personal Injury, if culpable negligence is charged		784.05(1)	8.9

Comment

This instruction was adopted in 2013 [131 So. 3d 692] and 2016.

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