Amendments to the jury instructions for criminal cases
Amendments to the jury instructions for criminal cases
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following amended and new instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following instructions:
2.4 EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “WILLIAMS RULE”
2.14 PRO SE DEFENDANT
3.6(f) JUSTIFIABLE USE OF DEADLY FORCE
3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE
3.8(a) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “WILLIAMS RULE”
8.2 AGGRAVATED ASSAULT
8.12 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER, FIREFIGHTER, ETC.
8.15 AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER
8.22 WRITTEN THREAT TO [KILL] [DO BODILY INJURY]
10.1 CARRYING A CONCEALED [WEAPON]S [FIREARM]
10.5 IMPROPER EXHIBITION OF A [WEAPON] [FIREARM]
10.15 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AM MUNITION/ELECTRIC WEAPON OR DEVICE
12.1 ARSON — FIRST DEGREE
14.8 ORGANIZED FRAUD
14.9 UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD
21.9 [ATTEMPTED] RETALIATING AGAINST A [WITNESS] [VICTIM] [INFORMANT]
21.10 TAMPERING WITH A [WITNESS] [VICTIM] [INFORMANT]
21.11 HARASSING A [WITNESS] [VICTIM] [INFORMANT]
21.12 CORRUPTION BY [HARM] [THREAT OF HARM] AGAINST A PUBLIC SERVANT
21.13 DEPRIVING AN OFFICER OF MEANS OF[PROTECTION] [COMMUNICATION]
28.3 DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY
28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY
29.13(c) SEXUAL ACTIVITY WITH AN ANIMAL
The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in both hard copy and electronic format on or before May 1. 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. In addition, mail a hard copy of your comments 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.
“ WILLIAMS RULE”
§ 90.404(2)(a) Fla. Stat.
To be given at the time the evidence is admitted, if requested.
The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity][the absence of mistake or accident] on the part of the defendant and you shall consider it only as it relates to [that] [those] issue[s].
However, the defendant is not on trial for a crime, wrong, or act that is not included in the [information] [indictment].
- See section 90.404(2)(b), Fla. Stat.
This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007 [SC07-325, Corrected Opinion, August 30, 2007] , and 2012.
(Defendant) has the right to be represented by an attorney in this trial, as do all criminal defendants in this country. [He] [She] has decided instead to exercise [his] [her] constitutional right to act as [his] [her] own attorney in this case. You should not allow that decision to affect your verdict.
This instruction was adopted in 2012.
` Jim
Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Unless the evidence establishes the force used was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1 st DCA 2004).
Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.
Give a or b as applicable.
- a. It is a defense to the crime with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.
b. It is a defense to the crime of (name of crime charged that did not result in injury or death) if the actions of the defendant constituted the justifiable use of deadly force.
Definition. Fla. Stat. 776.06(1).
“Deadly force” means force likely to cause death or great bodily harm.
Give if applicable. § 782.02, Fla. Stat.
The use of deadly force is justifiable only if the defendant reasonably believe s d that the force is was necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting an attempt to commit (applicable felony) upon [him] [her] or in any dwelling in which [he][she] was present.
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].
Insert and Define applicable felony that defendant alleges victim attempted to commit , but omit any reference to burden of proof. See Montijo v. State, 61 So.3d 424 (Fla. 5 th DCA 2011) .
Give if applicable. §§ 776.012, 776.031, Fla. Stat.
A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent
- 1. imminent death or great bodily harm to [himself] [herself] or another, or
2. the imminent commission of (applicable forcible felony) [ against [himself] [herself] [ or another ] . ]
Insert and Define applicable forcible felony that defendant alleges victim was about to commit , but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5 th DCA 2011) . Forcible felonies are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041, Fla. Stat.
However, the use of deadly force is not justifiable if you find:
Give only if there is evidence that the defendant is charged with was committing an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
- 1.
(Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony) ; or
Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
- 2.
(Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant) .
b. In good faith, the defendant withdrew from physical contact with ( assailant ) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.
Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
Give if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another) , but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1 st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5 th DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.
Read in all cases.
In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [ was not engaged in an unlawful activity and ] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.
Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.
Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013, Fla. Stat.
If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.
Duty to retreat when defendant was engaged in unlawful activity. Give if applicable. See Dorsey v. State, 74 So.3d 521 (4 th DCA 2011).
If the defendant was engaged in an unlawful activity, or if [he] [she] was attacked in a place where [he] [she] did not have a right to be, then the fact that the defendant was wrongfully attacked cannot justify [his] [her] use of force likely to cause death or great bodily harm if, by retreating, [he] [she] could have avoided the need to use that force.
However, if the defendant was wrongfully attacked or was wrongfully placed in a position of imminent danger of death or great bodily harm, and it would have increased [his] [her] own danger to retreat, then the defendant did not have a duty to retreat and [his] [her] use of force likely to cause death or great bodily harm was justifiable if [he] [she] reasonably believed that such force was necessary to prevent imminent death or great bodily harm to [himself] [herself] [or another].
Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
The defendant is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when using defensive force that was intended or likely to cause death or great bodily harm to another if:
- a. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
- b. The defendant knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:
- a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
- b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
- c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or
- d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat. ,
§ 776.013(4), Fla. Stat. Give if as applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
As used with regard to self defense:
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property .
Prior threats. Give if applicable.
If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.
Reputation of victim known by defendant . Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.
Reputation of victim not necessarily known by defendant (to show victim acted in conformity with victim’s character). Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person, you may consider this fact in determining whether the (victim) [he] [she] was the initial aggressor.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and ( victim ).
Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 984], 2006 [930 So. 2d 612], and 2010 [27 So. 3d 640], and 2012.
Jim
Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Unless the evidence establishes that the force used was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1 st DCA 2004).
Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force.
Give a or b as applicable.
- a. It is a defense to the
b. It is a defense to the crime of (name of crime charged that did not result in injury or death) if the actions of the defendant constituted the justifiable use of non-deadly force.
Definition.
“Non-deadly” force means force not likely to cause death or great bodily harm.
In defense of person. § 776.012, Fla. Stat. Give if applicable.
(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved :
- 1. (Defendant)
2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.
In defense of property. § 776.031, Fla. Stat. Give if applicable.
(Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved :
- 1. (Victim)
- 2. The land or personal property
3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior.
No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable.
If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.
Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla. Stat.
The defendant is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when using defensive force if:
- a. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
- b. The defendant knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:
- a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
- b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
- c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or
d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from §943.10(14), Fla. Stat.
§ 776.013(4), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
As used with regard to self defense,
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable. See Novak v. State 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [ was not engaged in an unlawful activity and ] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.
Definitions.
As used with regard to self defense,
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Give in all cases. § 776.013(3), Fla. Stat.
A person does not have a duty to retreat if the person is not engaged in an unlawful activity and is in a place where [he] [she] has a right to be.
Duty to retreat when defendant was engaged in unlawful activity. Give if applicable. See Dorsey v. State, 74 So.3d 521 (Fla. 4 th DCA 2011).
If the defendant was engaged in an unlawful activity, or if [he] [she] was attacked in a place where [he] [she] did not have a right to be, then the fact that the defendant was wrongfully attacked cannot justify [his] [her] use of force if, by retreating, [he] [she] could have avoided the need to use that force.
However, if the defendant was wrongfully attacked or was wrongfully placed in a position of imminent danger of another’s use of unlawful force, and it would have increased [his] [her] own danger to retreat, then the defendant did not have a duty to retreat and [his] [her] use of non-deadly force was justifiable if [he] [she] reasonably believed that such force was necessary to prevent the use of unlawful force against [himself] [herself] or another.
Aggressor. § 776.041, Fla. Stat.
The use of non-deadly force is not justified if you find:
Give only if there is evidence that the defendant is charged with was committing an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
- 1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony).
Define applicable forcible felony.
2. (Defendant) initially provoked the use of force against [himself] [herself], unless:
- a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (assailant) .
- b. In good faith, the defendant withdrew from physical contact with ( assailant ) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force, but (assailant) continued or resumed the use of force.
Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat.
A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
Give the following instruction if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.
Read in all cases.
In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
Reputation of victim known by defendant . Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.
Reputation of victim not necessarily known by defendant (to show victim acted in conformity with victim’s character). Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person, you may consider this fact in determining whether [he] [she] was the initial aggressor.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) .
Read in all cases.
If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved.
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1992 [603 So. 2d 1175], 2006 [930 So. 2d 612], and 2010 [27 So. 3d 640], and 2012.
3.8(a) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “ WILLIAMS RULE”
To be given at the close of evidence, if applicable.
The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to proof of [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant.
The defendant cannot be convicted for a crime, wrong, or act that is not included in the [information] [indictment].
See section 90.404(2)(b), Fla. Stat. , effective July 1, 2001, in child molestation cases and section 90.404(2)(c) Fla. Stat. for cases involving sexual offenses. A special instruction may be given if evidence is introduced under either of those provisions.
This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007 [SC07-325, Corrected Opinion, August 30, 2007] , 2012 [– So. 3d. –] and 2012.
To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.
- 1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim) .
- 2. At the time, (defendant) appeared to have the ability to carry out the threat.
- 3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
- Give 4a or 4b as applicable.
- 4. a. [The assault was made with a deadly weapon.]
- b. [The assault was made with a fully-formed, conscious intent to commit (crime charged) upon (victim) .]
If 4b is alleged, define the crime charged.
Definition. Give if 4a alleged.
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 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
|
AGGRAVATED ASSAULT — 784.021
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
Improper exhibition of a dangerous weapon or firearm, if 784.021(1)(a) is charged |
790.10 |
10.5 |
|
| Assault | 784.011 | 8.1 | |
| Attempt | 777.04(1) | 5.1 | |
| Discharging firearms in public | 790.15 | 10.6 |
This instruction was approved in 1981 and amended in 2012.
8.12 AGGRAVATED ASSAULT ON LAW ENFORCEMENT
§ 784.07(2)(c), Fla. Stat.
To prove the crime of Aggravated Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Federal Law Enforcement Officer], the State must prove the following seven elements beyond a reasonable doubt. The first three elements define assault.
- 1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim) .
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
Give 4a or 4b as applicable.
- 4. a. The assault was made with a deadly weapon.
- b. The assault was made with a fully-formed, conscious intent to commit (crime charged) upon (victim) .
If 4b is alleged, define the crime charged.
- 5. ( Victim ) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
6. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
7. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.
The court now instructs you that (name of official position of victim designated in charge ) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].
In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).
Definition. Give if 4a alleged.
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 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
|
AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER, ETC. – 784.07(2)(c)
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT | INS. NO. |
| Aggravated assault | 784.021 | 8.2 | |
| Assault on law on enforcement officer | 784.07(2)(a) | 8.10 | |
| Improper exhibition of a dangerous weapon or firearm, if 784.021(1)(a) is charged | 790.10 | 10.5 | |
| Assault | 784.011 | 8.1 | |
| Attempt | 777.04(1) | 5.1 | |
| |
|
||
| Discharging firearms in public | 790.15 | 10.6 |
This instruction was approved in 1992 [603 So.2d 1175], and amended in 1995 [657 So.2d 1152], and 2007 [962 So. 2d 310], and 2008 [994 So. 2d 1038], and 2012.
8.15 AGGRAVATED ASSAULT ON PERSON
§ 784.08(2)(b), Fla. Stat.
To prove the crime of Aggravated Assault on a Person 65 Years of Age or Older, the State must prove the following five elements beyond a reasonable doubt. The first three elements define assault.
- 1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim) .
- 2. At the time, (defendant) appeared to have the ability to carry out the threat.
- 3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
Give 4a or 4b.
- 4. a. [The assault was made with a deadly weapon.]
- b. [The assault was made with a fully-formed conscious intent to commit (crime charged) upon (victim) .]
If 4b is alleged, define the crime charged.
- 5. (Victim) was at the time 65 years of age or older.
Definition. Give if 4a alleged.
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 4a alleged.
It is not necessary for the State to prove that the defendant had an intent to kill.
Lesser Included Offenses
|
AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(b)
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| Aggravated assault | 784.021 | 8.2 | |
| Assault on person 65 years of age or older | 784.08(2)(d) | 8.17 | |
| Improper exhibition of a dangerous weapon or firearm, if 784.021(1)(a) is charged | 790.10 | 10.5 | |
| Assault | 784.011 | 8.1 | |
| Attempt | 777.04(1) | 5.1 | |
| Discharging firearms in public | 790.15 | 10.6 |
This instruction was adopted in 1997 and amended in 2012.
8.22 WRITTEN THREAT TO [KILL] [DO BODILY INJURY]
To prove the crime of Written Threat to [Kill] [Do Bodily Injury], the State must prove the following three elements beyond a reasonable doubt:
- 1. ( Defendant ) [wrote] [composed] a[n] [letter] [electronic communication] [inscribed communication]. 2. The [letter] [electronic communication] [inscribed communication] contained a threat to [kill] [do bodily injury to] [ ( victim )] [any member of ( victim’s ) family]. 3. (Defendant) [sent] [procured the sending of] that [letter] [electronic communication] [inscribed communication] to ( victim ).
Give if applicable.
It is not necessary for the State to prove that the [letter] [electronic communication] [inscribed communication] had been signed.
Definitions. Give if applicable. There is no statutory definition defining the term “electronic communication.” In the absence of case law, trial judges will have to fashion their own definition, perhaps by looking at Fla. Stat. 934.02(12) and Fla. Stat. 668.602(7). The definition for inscribed communication comes from the dictionary definition of the word inscribed. The definition of procure comes from the manslaughter standard instruction.
An “inscribed communication” is a communication that is written or printed.
To “procure” means to persuade, induce, prevail upon, or cause a person to do something.
Lesser Included Offenses
|
WRITTEN THREAT TO KILL OR DO BODILY INJURY – 836.10
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 | |
| Assault | 784.011 | 8.1 |
It is not necessary for the State to prove the defendant had the actual intent to do harm or the ability to carry out the threat. Saidi v. State, 845 So. 2d 1022 (Fla. 5 th DCA 2003).
The name of ( victim ) in elements 2 and 3 must be the same person.
This instruction was adopted in 2012.
To prove the crime of (crime charged) Carrying a Concealed [Weapon] [Firearm] , the State must prove the following two elements beyond a reasonable doubt:
- 1. (Defendant) knowingly carried on or about [his] [her] person
- 2. The
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] [electric weapon or device] [firearm]” is legally defined as (adapt from § 790.001, Fla.Stat., as required by allegations) .
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 DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1 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 Offenses
|
CARRYING A CONCEALED WEAPON
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 |
|
|
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 DCA 2012) for the law on carrying a concealed weapon within one’s own home.
This instruction was adopted in 1981 and was amended in 1989 and 2012.
Bart
To prove the crime of Improper Exhibition of a [ Weapon ] [Firearm] , the State must prove the following three elements beyond a reasonable doubt:
- 1. (Defendant) had or carried
- 2. (Defendant) exhibited
- 3. [He] [She] did so in the presence of one or more persons.
Defense
If you find that the defendant committed (crime charged) exhibited the [weapon] [firearm] in necessary self-defense, you must find [him] [her] not guilty. Read appropriate self-defense instruction.
Give as applicable.
Definitions.
§ 790.001(13), Fla. Stat.
A “weapon” is any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
R.R. v. State, 826 So. 2d 465 (Fla. 5 th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1 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. ] .
|
IMPROPER EXHIBITION OF A WEAPON OR FIREARM — 790.10
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 | |
| Assault | 784.011 | 8.1 |
This instruction was adopted in 1981 and amended in 2012.
§ 790.23, Fla. Stat.
To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:
- 1. (Defendant) had been convicted of
Give 2a or 2b as applicable.
- 2. After the conviction, (defendant) knowingly
- a. [owned] [had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition].
b. [carried a concealed weapon.]
Definitions.
“Convicted” means that a judgment has been entered in a criminal proceeding by a court pronouncing the accused guilty.
Give as appropriate. See § 790.001, Fla. Stat.
[A “firearm”] [“Ammunition”] [An “electric weapon or device”] [A “concealed weapon”] is legally defined as (insert the definition in § 790.001, Fla. Stat.) .
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.].
An “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.
“Ammunition” means an object consisting of all of the following:
- a. A fixed metallic or nonmetallic hull or casing containing a primer,
b. One or more projectiles, one or more bullets, or shot.
- c. Gunpowder.
Give if defendant is charged with Convicted Felon Carrying a Concealed Weapon. See Fla. Stat. 790.001(3)(a).
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.
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 weapon need not be completely hidden for you to find that it was concealed. However, a weapon is not concealed if, although not fully exposed, its status as a weapon is detectable by ordinary observation.
Give if appropriate.
R.R. v. State, 826 So. 2d 465 (Fla. 5 th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1 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.
A “deadly weapon” is legally defined as one likely to produce death or great bodily injury.
Give if 2a alleged.
“Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.
Possession.
To “ possess” means to have personal charge of or exercise the right of ownership, management, or control over an object.
Possession may be actual or constructive.
Actual possession means
- a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when it is not in a place over which the person has control.
Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.
If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant’s) presence, and (2) has control over the object.
Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.
Inference of knowledge of presence. A special instruction may be necessary if the object is in a common area, in plain view, and in the presence of the defendant, who is a joint owner or joint occupant of the place in which the object was located. Duncan v. State, 986 So. 2d 653 (Fla. 4 th DCA 2008).
If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.
|
FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE – 790.23
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| 790.01(1) | 10.1 | ||
| Attempt |
777.04(1) | 5.1 | |
| Carrying concealed firearm | 790.01(2) | 10.1 | |
To prove the crime of Arson, the State must prove the following [three] [four] elements beyond a reasonable doubt:
- 1. (Defendant) [damaged] [caused to be damaged] (structure or contents alleged) by [fire] [explosion].
- Give 2a or 2b.
- 2. a. The damage was done willfully and unlawfully.
- b. The damage was caused while defendant was engaged in the commission of (felony alleged) .
- 3. The (structure alleged) was
Give 3a if charged under § 806.01(1)(a), Fla._Stat.
- a. [a dwelling].
Give 3b if charged under § 806.01(1)(b), Fla._Stat.
- b. [an institution in which the damage occurred during normal hours of occupancy].
[an institution where persons normally are present].
Give 3c if charged under § 806.01(1)(c), Fla._Stat.
- c. [a structure].
Give only if charged under § 806.01(1)(c), Fla._Stat.
- 4. The defendant knew or had reasonable grounds to believe the (structure alleged) was occupied by a human being.
Definition. Give if applicable. § 806.01(3), Fla. Stat.
“Structure” means:
- Any building of any kind.
Any enclosed area with a roof over it.
Any real property and its appurtenances.
Any tent or other portable building.
Any vehicle.
Any vessel.
Any watercraft.
Any aircraft.
Give only if 2b is alleged.
Define the crime alleged. If burglary, also define the crime that was the object of the burglary.
|
ARSON — 806.01(1)
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| Arson – second degree | 806.01(2) | 12.2 | |
| Attempt | 777.04(1) | 5.1 | |
| Criminal mischief | 806.13 | 12.4 |
This instruction was adopted in 1981 and was amended in 1992 and 2012.
To prove the crime of Organized Fraud, the State must prove the following two elements beyond a reasonable doubt :
- 1. (Defendant) engaged in a scheme to defraud.
2. (Defendant) thereby obtained [property] [ (specify property if alleged in the information)].
Degrees. Give as applicable.
If you find the defendant guilty of Organized Fraud, you must also determine if the State has proved beyond a reasonable doubt whether:
- a. The aggregate value of the property obtained was $50,000 or more;
- b. The aggregate value of the property obtained was $20,000 or more but less than $50,000;
- c. The aggregate value of the property obtained was less than 20,000.
Definitions. Give if applicable.
“Scheme to Defraud” means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.
“Obtain” means to temporarily or permanently deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.
“Property” means anything of value, and includes:
- 1. Real property, including things growing on, affixed to, or found in land;
- 2. Tangible or intangible personal property, including rights, privileges, interests, and claims; and
- 3. Services.
“Value” means value determined according to any of the following: The market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
If the exact value cannot be determined, you should attempt to determine a minimum value. If the minimum value of the property cannot be determined, you must find the value is less than $20,000.
Note to Judge. If the property obtained is a written instrument or trade secret that does not have a readily ascertainable market value, give the definition of “value” in s. 817.034(3)(e)1.b or1.c.
“Willful” means intentional, purposeful, and with knowledge.
|
ORGANIZED FRAUD
817.034(4)(a)1,2,3 Fla. Stat. |
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| Grand theft –second degree | 812.014(2)(b)1 | 14.1 | |
| Grand theft – third degree | 812.014(2)(c)1, 2, 3 | 14.1 | |
| Petit theft – first degree | 812.014(2)(e) | 14.1 | |
| Petit theft – second degree | 812.014(3)(a) | 14.1 | |
| Attempt | 777.04(1) | 5.1 |
This instruction was adopted in 2012.
14.9 UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD
To prove the crime of Unlawful Possession of a Stolen [Credit] [Debit] Card, the State must prove the following three elements beyond a reasonable doubt:
- 1. (Defendant) knowingly [possessed] [received] [retained] a [credit] [debit] card.
2. The (defendant) knew the [credit] [debit] card had been taken from the [possession] [custody] [control] of another without the cardholder’s consent.
3. At the time (defendant) [possessed] [received] [retained] the [credit] [debit] card, [he] [she] had the intent to impede the recovery of the [credit] [debit] card by the cardholder.
Definitions.
§ 817.58(4), Fla. Stat.
“Credit card” means any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, electronic benefits transfer (EBT) card, or debit card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit or for use in an automated banking device to obtain any of the services offered through the device.
Possession.
To “ possess” means to have personal charge of or exercise the right of ownership, management, or control over an object.
Possession may be actual or constructive.
Actual possession means
- a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when it is not in a place over which the person has control.
Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.
If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant’s) presence, and (2) has control over the object.
Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.
Inference of knowledge of presence. A special instruction may be necessary if the object is in a common area, in plain view, and in the presence of the defendant, who is a joint owner or joint occupant of the place in which the object was located. Duncan v. State, 986 So. 2d 653 (Fla. 4 th DCA 2008).
If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.
|
UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD — 817.60(8)
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04 | 5.1 |
- Pursuant to § 817.60(8) Fla. Stat., it is not a crime for a retailer or retail employee, in the ordinary course of business, to possess, receive, or return a credit card or debit card that the retailer or retail employee does not know was stolen or to possess, receive, or retain a credit card or debit card that the retailer or retail employee knows is stolen for the purpose of an investigation into the circumstances regarding the theft of the card or its possible unlawful use.
This instruction was adopted in 2012.
21.9 [ATTEMPTED] RETALIATING AGAINST
§ 914.23 Fla. Stat.
To prove the crime of [Attempted] Retaliating Against a [Witness] [Victim] [Informant], the State must prove the following two elements beyond a reasonable doubt:
Give as applicable.
- 1. (Defendant) knowingly
- a. [attempted] [threatened] to [cause bodily injury to ( victim )] [ damage the tangible property of ( victim )] .
b. caused [bodily injury to ( victim )] [ damage to the tangible property of ( victim )] .
Give as applicable.
2. (Defendant) did so, with intent to retaliate against [any person]
[ (name of person)] for
a. the attendance of a [witness] [party] at an official proceeding.
b. any [testimony given] [record, document, or object produced] by a witness in an official proceeding.
c. information given by [a person] [ ( name of person ) ] to a law enforcement officer relating to the commission or possible commission of [an offense] [[a violation of a condition of [probation] [parole] [release pending a judicial proceeding]]. Define “attempt” using instruction 5.1, if appropriate. Definitions.
§ 914.21(1) Fla. Stat.
§ 914.21(4) Fla. Stat.
|
[ATTEMPTED] RETALIATING AGAINST A [WITNESS] [VICTIM] [INFORMANT] – 914.23
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT | INS. NO. |
| None | |||
| Aggravated Battery | 784.045 | 8.4/8.4(a) | |
| Felony Battery | 784.041 | 8.5 | |
| Battery | 784.03 | 8.3 | |
| Aggravated Assault | 784.021 | 8.2 | |
| Assault | 784.011 | 8.1 | |
| Criminal Mischief | 806.13 | 12.4 |
- It is not necessary for the State to prove that the defendant had the intent to communicate his or her threat(s) to the witness nor that the defendant had the intent to carry out his or her threat(s). State v. Jones , 642 So. 2d 804 (Fla. 5 th DCA 1994).
Pursuant to § 914.23 Fla. Stat., the defendant is guilty of a second degree felony only if the victim suffered bodily injury as a result of the defendant’s conduct. Otherwise, the defendant is guilty of a third degree felony. Therefore, a specific finding of bodily injury caused by the defendant is necessary when appropriate.
This instruction was adopted in 2012.
To prove the crime of Tampering with a [Witness] [Victim] [Informant], the State must prove the following three elements beyond a reasonable doubt:
Give as applicable.
- 1. (Defendant) knowingly
- a. used or attempted to use intimidation or physical force against ( name of person ) .
b. threatened or attempted to threaten ( name of person ) .
c. engaged in misleading conduct toward ( name of person ) .
d. offered pecuniary benefit or gain to ( name of person ) .
2. (Defendant) did so, with intent to cause or induce [any person] [ ( name of person) ] to
- a. withhold testimony or withhold a record, document, or other object, from an official investigation or official proceeding.
- b. alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official investigation or official proceeding.
- c. evade legal process summoning [him][her] to appear as a witness, or to produce a record, document, or other object, in an official investigation or official proceeding.
- d. be absent from an official proceeding to which [he][she]has been summoned by legal process.
- e. hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding.
- f. testify untruthfully in an official investigation or an official proceeding.
- 3. The [official investigation] [official proceeding] [offense]
[violation of a condition of [probation][parole][release]]
[affected] [attempted to be affected], involved the
investigation or proceeding of a[n]
[non-criminal offense]
[misdemeanor]
[third degree felony]
[second degree felony]
[first degree felony [punishable by a term of years not
exceeding life]]
[life felony]
[capital felony]
[offense of indeterminable degree].
Give if requested and if applicable.
§ 914.22(5)(a), Fla. Stat.
The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense.
§ 914.22(5)(b), Fla. Stat.
The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege].
§ 914.22(6)(a), Fla. Stat.
The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency.
§ 914.22(6)(b), Fla. Stat.
The State does not have to prove that the defendant knew or should have known that the judge is a judge of the state or that the law enforcement officer is an officer of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant.
Definitions. § 914.21, Fla. Stat., Give as applicable.
“Misleading conduct” means:
- a. Knowingly making a false statement;
- b. Intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact and thereby creating a false impression by such statement;
- c. With intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
- d. With intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
- e. Knowingly using a trick, scheme, or device with intent to mislead.
“Official investigation” means any investigation instituted by a law enforcement agency or prosecuting officer of the state or a political subdivision of the state or the Commission on Ethics.
“Official proceeding” means:
- a. A proceeding before a judge or court or a grand jury;
- b. A proceeding before the Legislature;
- c. A proceeding before a federal agency that is authorized by law; or
- d. A proceeding before the Commission on Ethics.
“Physical force” means physical action against another and includes confinement.
The degree of this crime depends on the severity of the underlying offense that is the subject of the tampering. See § 914.22(2), Fla. Stat.
Comment
This instruction was adopted in 2012.
§ 914.22(3), Fla. Stat.
To prove the crime of Harassing a [Witness] [Victim] [Informant], [Person], the State must prove the following three elements beyond a reasonable doubt:
Give as applicable.
- 1. (Defendant) intentionally [harassed] [attempted to harass] ( name of person ) .
2. (Defendant) thereby [hindered] [attempted to hinder] [delayed] [attempted to delay] [prevented] [attempted to prevent] [dissuaded] [attempted to dissuade] [a person] [ ( name of person ] from
- a. attending or testifying in an official proceeding or cooperating in an official investigation.
b. reporting to a law enforcement officer or judge the commission or possible commission of an offense or a violation of a condition of [probation] parole] [release] pending a judicial proceeding.
c. arresting or seeking the arrest of another person in connection with an offense.
d. causing a [criminal prosecution] [parole] [probation] revocation proceeding] to be sought or instituted or from assisting in such [prosecution] [proceeding].
3. The [official investigation] [official proceeding] [offense]
[violation of a condition of [probation][parole][release]]
[affected] [attempted to be affected], involved the
investigation or proceeding of a[n]
[non-criminal offense]
[misdemeanor]
[third degree felony]
[second degree felony]
[first degree felony [punishable by a term of years not
exceeding life]]
[life felony]
[capital felony]
[offense of indeterminable degree].
Give if requested and if applicable.
§ 914.22(5)(a), Fla. Stat.
The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense.
§ 914.22(5)(b), Fla. Stat.
The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege].
§ 914.22(6)(a), Fla. Stat.
The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency.
§ 914.22(6)(b), Fla. Stat.
The State does not have to prove that the defendant knew or should have known that the judge is a judge of the state or that the law enforcement officer is an officer of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant.
Definitions. § 914.21, Fla. Stat., Give as applicable.
“Official investigation” means any investigation instituted by a law enforcement agency or prosecuting officer of the state or a political subdivision of the state or the Commission on Ethics.
“Official proceeding” means:
- a. A proceeding before a judge or court or a grand jury;
- b. A proceeding before the Legislature;
- c. A proceeding before a federal agency that is authorized by law; or
d. A proceeding before the Commission on Ethics.
The degree of this crime depends on the severity of the underlying offense that is the subject of the harassment. See § 914.22(4), Fla. Stat.
This instruction was adopted in 2012.
- To prove the crime of Corruption by [Harm] [Threat of Harm] Against a Public Servant, the State must prove the following three elements beyond a reasonable doubt:
- 1. (Defendant) unlawfully [harmed] [threatened unlawful harm] to [ ( victim )] [ ( victim’s ) immediate family member] [a person with whose welfare ( victim ) was interested in].
2. At the time, ( victim ) was a public servant.
Give as applicable.
3. ( Defendant) did so, with the intent or purpose to:
- a. influence the performance of any act or omission which the defendant believed to be [or (victim) represented as being,] within the official discretion of (victim), in violation of a public duty, or in performance of a public duty.
b. cause or induce ( victim ) to [use] [exert] [procure the use or exertion of] any influence [upon] [with] any other public servant regarding any act or omission which the defendant believed to be [or ( victim ) represented as being,] within the official discretion of ( victim ) , in violation of a public duty, or in performance of a public duty.
Give if requested and if applicable. § 838.021(2), Fla. Stat. The State does not have to prove that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that the public servant had assumed office, that the matter was properly pending before [him] [her] or might by law properly be brought before [him] [her], that the public servant possessed jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the defendant’s purpose. Definitions. § 838.014, Fla. Stat. “Harm” means pecuniary or other loss, disadvantage, or injury to the person affected.
“Public servant” means:
- a. Any officer or employee of a state, county, municipal, or special district agency or entity;
b. Any legislative or judicial officer or employee;
c. Any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function;
d. A candidate for election or appointment to any of the positions listed above or an individual who has been elected to, but has yet to officially assume the responsibilities of public office.
No lesser included offenses have been identified for these offenses.
- Unlawfully harming a public servant is a second degree felony. Threatening unlawful harm is a third degree felony. See § 838.021(3)(a) and (b), Fla. Stat.
This instruction was adopted in 2012.
To prove the crime of Depriving an Officer of Means of [Protection] [Communication], the State must prove the following two elements beyond a reasonable doubt:
- 1. (Defendant) deprived ( victim ) of [his] [her] [weapon] [radio]
[means to defend [himself] [herself]] [means to summon
assistance].
- 2. At the time, ( victim ) was a [law enforcement officer]
[correctional officer] [correctional probation officer].
- Definitions . Give as applicable.
§ 943.10(1), Fla. Stat.
“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.]
- § 943.10(2), Fla. Stat.
“Correctional officer” means any person who is 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.
§943.10(3), Fla. Stat.
“Correctional probation officer” means any 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 controlees 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 administrative level.
See § 943.10 Fla. Stat. for definitions for “employing agency,” “part-time law enforcement officer,” “part-time correctional officer,” “auxiliary law enforcement officer,” “auxiliary correctional officer,” “support personnel,” “officer,” “auxiliary correctional probation officer,” and “part-time correctional probation officer.”
|
DEPRIVING AN OFFICER OF MEANS OF [PROTECTION] [COMMUNICATION] – 843.025
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 |
This instruction was adopted in 2012.
28.3 DRIVING UNDER THE INFLUENCE CAUSING
§ 316.193(3)(a)(b)(c)2, Fla. Stat.
To prove the crime of Driving under the Influence Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:
- 1 (Defendant) drove or was in actual physical control of a vehicle.
- b. While driving or in actual physical control of the vehicle, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of. 08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
- c. As a result of operating the vehicle, (defendant) caused or contributed to causing serious bodily injury to (victim) .
Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of. 20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing Serious Bodily Injury, you must also determine whether the State has proven beyond a reasonable doubt whether:
- a. the defendant had a [blood] [breath]-alcohol level of. 15 or higher while driving or in actual physical control of the vehicle.
b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving under the influence.
- Definitions. Give as applicable.
Vehicle is every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.
- ( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.
- ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.
§ 316.1933, Fla. Stat.
Serious bodily injury means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
- 1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of. 05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
- 2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of. 05 but less than. 08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
- 3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of. 08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence Causing Serious Bodily Injury if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.
|
DRIVING UNDER THE INFLUENCE CAUSING SERIOUS BODILY INJURY — 316.193(3)(a)(b)(c)2
|
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| 316.193(3)(a)(b)(c)1 | 28.1 28.1(a) | ||
| Driving under the influence | 316.193(1) | 28.1 | |
| Driving under the influence causing property damage | 316.193(3)(a)(b)(c)1 | 28.1(a) | |
| Attempt | 777.04(1) | 5.1 |
This instruction was adopted in 1992 and amended in 1998 , and 2009 [6 So. 3d 574], and 2012.
-
L evine
§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:
- 1. (Defendant) was the driver of a vehicle involved in a crash.
- 2. The crash 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 as close to the crash 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 who is investigating the crash].
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).
“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.
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 |
This instruction was adopted in 2012. 29.13(c) SEXUAL ACTIVITY WITH AN ANIMAL
To prove the crime of Sexual Activity with an Animal, the State must prove the following element beyond a reasonable doubt:
Give as applicable.
(Defendant) knowingly
- a. [engaged in sexual conduct or sexual contact with an animal].
- b. [caused or aided or abetted another person to engage in sexual conduct or sexual contact with an animal].
- c. [permitted sexual conduct or sexual contact with an animal to be conducted on any premises under [his] [her] charge or control].
- d. [organized] [promoted] [conducted] [advertised] [aided] [abetted] [participated in as an observer] [performed any service in the furtherance of] an act involving sexual conduct or sexual contact with an animal for a commercial or recreational purpose].
Definitions.
“Sexual conduct” means any touching or fondling by a person, either
directly or through clothing, of the sex organs or anus of an animal or any
transfer or transmission of semen by the person upon any part of the animal
for the purpose of sexual gratification or arousal of the person.
“Sexual contact” means any contact, however slight, between the
mouth, sex organ, or anus of a person and the sex organ or anus of an animal,
or any penetration, however slight, of any part of the body of the person into
the sex organ or anus of an animal, or any penetration of the sex organ or
anus of the person into the mouth of the animal, for the purpose of sexual
gratification or sexual arousal of the person.
|
SEXUAL ACTIVITY WITH AN ANIMAL — 828.126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
This crime does not apply to accepted animal husbandry practices, conformation judging practices, or accepted veterinary medical practices.
This instruction was adopted in 2012.
- his instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1992 [603 So.2d 1175] ,
