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Proposed criminal jury instructions

Proposed criminal jury instructions

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing revisions to the Florida Standard Jury Instructions in Criminal Cases. The court invites all interested persons to comment on the committee’s proposals, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before August 1, with a certificate of service verifying that a copy has been served on the committee chair, Judge Dedee S. Costello, Bay County Courthouse, P.O. Box 1089, Panama City 32402-1089, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Label envelope to avoid erasure.

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2005-1), CASE NO. SC05-803

To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim) .
2. [He] [She] did so with intent to, either temporarily or permanently,
[deprive (victim) of [his] [her] right to the property or any benefit from it.]
[appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.]
Degrees; give if property is of monetary value up to extent of charge
If you find the defendant guilty of theft, you must determine by your verdict whether:
a. [The value of the property taken was $100,000 or more.]
b. [The property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]
c. [The property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.]
d. [The property taken was emergency medical equipment valued at $300 or more that was taken from a licensed facility or from an emergency medical aircraft or vehicle.]
e. [The value of the property taken was $20,000 or more but less than $100,000.]
f. [The value of the property taken was $300 or more but less than $20,000.]
g. [The value of the property taken was less than $300.]
Give if applicable
h. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a commercially farmed animal.] [an aquaculture species raised at a permitted aquaculture facility.] [a fire extinguisher.] [2,000 or more pieces of fruit.] [taken from a posted construction site.]]
Inferences; give if applicable § 812.022(1), Fla.Stat.
Proof that a person presented false identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft.
Inferences; give if applicable § 812.022(2), Fla.Stat.
Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.
Inferences; give if applicable ‘ 812.022(3), Fla. Stat.
Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.
Inferences; give if applicable ‘ 812.022(4), Fla. Stat.
Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.
Inferences; give if applicable ‘ 812.022(5), Fla. Stat.
Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offeror of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.
Definitions; give if applicable
§ 812.012(1), Fla.Stat.
“Cargo” means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility.
§ 812.014(2)(b)3, Fla.Stat.
“Emergency medical equipment” means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies.
§ 395.002(10), Fla. Stat.
“Emergency service and care” means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.
§ 395.002(17), Fla.Stat.
“Licensed facility” means a hospital, ambulatory surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration. See Chapter 395, Fla.Stat.
§ 812.014(2)(b)3, Fla.Stat.
“Emergency medical aircraft or vehicle” means any aircraft, ambulance or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law.
§ 812.012(3), Fla.Stat.
“Obtains or uses” means any manner of
(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.
(d) (1) Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, deception; or
(2) Other conduct similar in nature.
“Endeavor” means to attempt or try.
§ 812.012(4), Fla.Stat.
“Property” means anything of value, and includes:
real property, including things growing on, affixed to and found in land;
tangible or intangible personal property, including rights, privileges, interests, and claims; and services.
§ 812.012(6), Fla.Stat.
“Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes:
repairs or improvements to property;
professional services;
private, public or government communication, transportation, power, water, or sanitation services;
lodging accommodations; and admissions to places of exhibition or entertainment.
§ 812.012(10), Fla.Stat.
“Value” means:
The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible.
In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret.
If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $300.
Amounts of value of separate properties, involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be totaled in determining the grade of the offense.

This instruction was adopted in 1981 and amended in 1989, 1992, and 2003 , and 2005.

It is error to inform the jury of a prior conviction. Therefore, if the information or indictment contains an allegation of one or more prior convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is convicted of the current charge, the historical fact of a previous conviction shall be determined separately. State v. Harris, 356 So.2d 315 (Fla. 1978).

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 (prior offense) .
2. After the conviction (defendant) knowingly
Give 2a or 2b as applicable
a. [owned] [had in [his] [her] care, custody, possession, or control ]
[a firearm].
[an electric weapon or device].
[ammunition]
b. [carried a (weapon alleged) , which was concealed from the ordinary sight of another person].
Defense
If you find that the defendant’s civil rights had been restored at the time of the offense, you shall find the defendant not guilty.
Definitions
“Convicted” means that a judgment has been entered in a criminal proceeding by a competent court pronouncing the accused guilty.
A [“ f F irearm”] [“ e E lectric weapon or device”] [“ c C oncealed weapon”] [Ammunition] is legally defined as (adapt from § 790.001, Fla.Stat., as required by the allegations) .
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.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive. If a thing is in the hand of or on the person, or in a bag or container in the hand of or on the person, or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.
If a thing is in a place over which the person has control or in which the person has hidden or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.

This instruction was adopted in 1981 and was amended in 1989, and 1992, and 2005.

Proposal #3

(For crimes committed on or after July 1, 2003.)
To be read after substantive charge alleged.
The punishment provided by law for the crime of (felony, as identified by F.S. 794.0115(2)) is greater if certain circumstances are found to exist.
Therefore, if you find that (defendant) committed (felony, as identified by F.S. 794.0115(2)), you must also consider whether (defendant) :
Give as applicable. Consider bifurcated proceedings when (d) or (e) is alleged.
(a) caused serious personal injury to (victim) as a result of the commission of the offense.
(b) used or threatened to use a deadly weapon during the commission of the offense.
(c) victimized more than one person during the course of the criminal episode applicable to the offense.
(d) committed the offense while under the jurisdiction of a court for a felony offense under the laws of this state, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state.
(e) had previously been convicted of a violation of (felony, as identified by F.S. 794.0115(2)(e)) .
“Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.

This instruction was adopted in 2005.

To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:
(Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim) .
Definition s
“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

This instruction was approved in 1995. It was amended in 2005 to include cyberstalking.

To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed ] [or] [cyberstalked] ( victim) .
2. (Defendant) made a credible threat with the intent to place (victim) in reasonable fear of death or bodily injury.
Definitions
“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
“Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

This instruction was approved in 1995. It was amended in 2005 to incorporate cyberstalking.

To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim) .
Give 2a, 2b, or 2c as applicable
2. (Defendant) did so in violation of
a. an injunction for protection against repeat violence.
b. an injunction for protection against domestic violence.
c. any [other] court imposed prohibition of conduct toward (the victim) or (victim’s) property.
Definitions
“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
“Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

This instruction was adopted in 1995. It was amended in 2005 to incorporate cyberstalking.

To prove the crime of aggravated stalking, the state must prove the following two elements beyond a reasonable doubt:
1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim). ; and,
2. At the time of (defendant’s) actions, (victim) was under 16 years of age.
“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

This instruction is based on the text of section 784.048(5), Florida Statutes (1997), and generally patterned after the standard instructions on stalking and aggravated stalking.

This instruction was adopted in 2000. It was amended in 2005 to incorporate cyberstalking.

To prove the crime of Possession of Burglary Tools, the State must prove the following three four elements beyond a reasonable doubt:
1. (Defendant) intended to commit a burglary or trespass.
1. 2. (Defendant) had in [his] [her] possession a [tool] [machine] [implement ]. that [he] [she] intended to use, or allow to be used, in the commission of the burglary or trespass.
2. (Defendant) intended to use the tool in the commission of a burglary or trespass.
3. (Defendant) intended to commit a burglary or trespass.
4. 3. (Defendant) did some overt act toward the commission of a burglary or trespass.

No lesser included offenses have been identified for this offense.

This instruction was adopted in 1981 and amended in 1989 and 1995 , and 2005.

To prove the crime of Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary , the State must prove the following two elements beyond a reasonable doubt:
Give as applicable:
1. (Defendant)
a. damaged a [wire] [line] that transmitted [telephone service] [power] to a dwelling.]
b. impaired equipment necessary for [telephone] [power] transmission to a dwelling.
c. [impaired] [impeded] [telephone] [power] transmission to a dwelling.
2. (Defendant) did so for the purpose of facilitating or furthering the [commission] [or] [attempted commission] of a burglary of that dwelling.
Definitions
§ 810.011(2)
“Dwelling” means a building [or conveyance] of any kind, including any attached porch, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it .
§ 810.011(3), give if applicable
“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
§ 810.02, Fla. Stat; give if necessary to define “burglary”
“Burglary” is defined as: a. entering or remaining in a dwelling owned by or in the possession of another; b. without the permission or consent of the dwelling’s owner or possessor [or anyone authorized to act for him or her] to enter or remain in the dwelling at the time; and, c. at the time of entering or remaining in the dwelling having a fully-formed, conscious intent to commit an offense in that dwelling.
“Impaired” means to be diminished, damaged, or weakened.
“Impeded” means to slow something down or prevent an activity from making progress at its previous rate.
“Facilitate” means to help or assist, or to make something possible or easier.
An “attempt” to commit a crime is the formation of an intent to commit that crime and the doing of some act toward the commission of the crime other than mere preparation to commit the crime.

This instruction was adopted in 2005.