Amendments to standard jury instructions in criminal cases
Amendments to standard jury instructions in criminal cases
The Supreme Court Committee on Standard July 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:
2.7 Closing Argument
3.6(f) Justifiable Use deadly force
3.6(g) Justifiable Use non-deadly force
3.6(k) Duress
8.23 Extortion
21.1 Resisting With Violence
21.2 Resisting Without Violence
21.4 False Report
21.5 False Report (non-capital)
21.6 False Report (capital)
22.5 Conducting a Lottery
25.15(a) Retail Sale of Drug Paraphernalia
29.13 Aggravated Animal Cruelty
29.13(a) Animal Cruelty
The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either hard copy or electronic format on or before December 2, 2013.
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.
Please file your comments electronically to [email protected], in the format of a Word document or, 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.
§ 918.19, Fla. Stat.
Both the State and the defendant have now rested their case.
The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case. Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defendant defense has spoken given its closing argument .
This instruction was approved in 1981 and amended in 2007 [SC07-325, Corrected Opinion, August 30, 2007] [965 So. 2d 811] and 2014.
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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 crime[s] of (name[s] of crime[s] charged) 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 believesd that the force iswas necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting
- 1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].
Insert and define Give the elements of the applicable felony that defendant alleges victim attempted to commit ,but omit any reference to burden of proof. See Montijo v. State, 61 So.3d 424 (Fla. 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 listed in § 776.08, Fla. Stat. ) [ against [himself] [herself] [ or another ] . ]
Insert and define Give the elements of the applicable forcible felony that defendant alleges victim was about to commit , but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5 th DCA 2011) . Forcible felonies are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041 (1) , 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) ; Crimins v. State, 113 So. 3d 945 (Fla. 5 th DCA 2013) .
1. The use of deadly force is not justifiable if you find that ( D d efendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) . ; or Define Give the elements of the applicable forcible felony but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5 th DCA 2011). Define after paragraph 2 if both paragraphs 1and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041(2), Fla. Stat.
Give if applicable.
Gibbs v. State, 789 So. 2d 443 (Fla. 4 th DCA 2001).
2. The use of deadly force is not justifiable if you find that ( D d efendant) used force or the threat of force to initially provoke d the use of force against [himself] [herself], unless:
a. 1. 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 victim ) .
b. 2. In good faith, the defendant withdrew from physical contact with ( assailant victim ) and clearly indicated to ( assailant victim ) that [he] [she] wanted to withdraw and stop the use of deadly force, but ( assailant victim ) 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 [n] (applicable forcible felony listed in § 776.08, Fla. Stat.) . Define Give the elements of the applicable forcible felony from list in § 776.08, Fla. Stat. 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) .
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. § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
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 [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 9 8 5 4], 2006 [930 So. 2d 612], 2008 [976 So. 2d 1081], and 2010 [27 So. 3d 640], and 2014.
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 crime[s] of (name[s] of crime[s] charged) 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) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another
- person]
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) must have been was about to trespass or was trespassing or otherwise wrongfully interfering with land or personal property ; and .
2. The land or personal property must have was lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect ; and .
3. (Defendant) 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), § 776.013(5), Fla. Stat. Give if applicable.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
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.
Define applicable forcible felony that defendant alleges victim was about to commit.
Give in all cases . No duty to retreat.
A person does not have a duty to retreat before using non-deadly force to resist the unlawful use of force if the person [he] [she] is in a place where [he] [she] has a right to be. Note to judge: § 776.013(3), Fla. Stat. implies that the defendant has duty to retreat if he or she is engaged in unlawful activity. However, it is unclear whether § 776.013(3), Fla. Stat. applies to the use of non-deadly force. See Weiand v. State, 732 So. 2d 1044, 1049, footnote 4 (Fla.1999).
Aggressor. § 776.041 (1) , 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) ; Crimins v. State, 113 So. 3d 945 (Fla. 5 th DCA 2013) .
1. The use of non-deadly force is not justified if you find that ( D d efendant) was attempting to commit, committing, or escaping after the commission of a [n] (applicable forcible felony listed in § 776.08, Fla. Stat.) .
Define Give the elements of the applicable forcible felony but omit any reference to burden of proof..
- Aggressor. § 776.041(2), Fla. Stat.
Give if applicable.
Gibbs v. State, 789 So. 2d 443 (Fla. 4 th DCA 2001).
2. The use of non-deadly force is not justified if you find that ( D d efendant) used force or the threat of force to initially provoke d the use of force against [himself] [herself], unless:
- a. 1. 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 victim ) .
- b. 2. In good faith, the defendant withdrew from physical
contact with ( assailant victim ) and indicated clearly to
( assailant victim ) that [he] [she] wanted to withdraw and
stop the use of non-deadly force, but ( assailant victim )
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], 2008 [976 So. 2d 1081], and 2010 [27 So. 3d 640], and 2014.
An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses) .
It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:
- 1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].
- 2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].
Give 2b if escape charged.
- b. The [danger] [emergency] threatened death or serious bodily injury.
- 3. The threatened harm must have been real, imminent, and impending.
Give 4a if escape is not charged.
- 4. a. The defendant had no reasonable means to avoid the
[danger] [emergency] except by committing the (crime
charged) (lesser included offenses) .
If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla. 1 st DCA 1981), and if so, give 4b.
- b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road] because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
- 5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].
- 6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses) .
Definitions.
“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.
The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.
In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses) , you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.
The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses) , the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses) . Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.
If you have a reasonable doubt as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.
However, if you are convinced beyond a reasonable doubt that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.
Duress is not a defense to premeditated murder or attempted premeditated murder. See Wright v. State, 402 So. 2d 1 4 93 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So. 2d 796 (Fla. 1 st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin’s opinion in Chestnut v. State, 505 So. 2d 1352 (Fla. 1 st DCA 1987), and the language in Gahley v. State, 567 So. 2d 456 (Fla. 1 st DCA 1990), Corujo v. State, 424 So. 2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So. 2d 609 (Fla. 5 th DCA 2000).
For the defense of necessity for the charge of Felon in Possession of a Firearm, see State v. Chambers , 890 So. 2d 456 (Fla. 2d DCA 2004) and Marrero v. State , 516 So. 2d 1052 (Fla. 3d DCA1987).
This instruction was adopted in July 1998 and amended in 2012 [95 So. 3d 868] and 2014.
§836.05, Fla. Stat.
To prove the crime of Extortion, the State must prove the following [four][five] elements beyond a reasonable doubt:
- 1. (Defendant) made a [written] [printed] [verbal] communication to
(name of person) .
- 2. In that communication, (defendant) threatened to
- Give as applicable.
a. accuse another person of any [crime][offense].
b. injure another person.
c. injure the [property] [reputation] of another person.
d. expose another person to disgrace.
- e. expose any secret affecting another person.
f. impute any deformity or lack of chastity to another person.
- 3. (Defendant’s) threat was made maliciously.
- 4. (Defendant’s) threat was made with the intent to
- Give as applicable.
a. extort money [or any pecuniary advantage whatsoever] from [ (name of person) ][any person].
b. compel [(name of person)] [any person] to do any act or refrain from doing any act against [his] [or] [her] will.
If the person in element #1 is not the same person in element #4, then the defendant’s threat was indirect. In those cases, trial judge must also instruct on element #5. See Calamia v. State, 38 Fla. L. Weekly D1433, Fla. 5 th DCA June 28, 2013).
- 5. At the time (defendant) made the threat, [he] [she] intended that the threat be communicated to (insert name of person in element #4 who was extorted or compelled) .
Definition of “maliciously.” The appellate courts are in conflict as to whether the extortion statute requires actual malice or legal malice. In the absence of clarification from the legislature or the Florida Supreme Court, trial judges must choose one of the following:
Dudley v. State, 634 So. 2d 1093 (Fla. 2 nd DCA 1994); Alonso v. Stare, 447 So. 2d 1029 (Fla. 4 th DCA 1984).
“Maliciously” means intentionally and without any lawful justification.
Calamia v. State, 38 Fla. L. Weekly D1433, Fla. 5th DCA June 28, 2013).
“Maliciously” means with ill will, hatred, spite, or an evil intent.
Lesser Included Offenses
No lesser-included offenses have been identified for this crime. Attempted extortion is not a crime. Achin v. State , 436 So. 2d 30 (1982).
It is not necessary for the State to prove the actual intent to do harm nor the ability to carry out the threat. Threats to cause mental or psychological damage are prohibited under this statute. Duan v. State, 970 So. 2d 903 (Fla. 1 st DCA 2007).
This instruction was adopted in 2014.
§ 843.01, Fla. Stat.
To prove the crime of Resisting Officer with Violence, the State must prove the following four elements beyond a reasonable doubt:
Note to Judge: An issue arises when the State charges that the defendant resisted more than one officer in one count. Under the current law, a defendant can commit only one count of Resisting With Violence even if several officers are involved in the same event. See Wallace v. State, 724 So. 2d 1176 (Fla. 1998). One possible remedy for this problem would be to instruct:
To prove the crime of Resisting Officer withViolence, the State must prove all of the following four elements beyond a reasonable doubt as to at least one of the alleged victims named below:
1. (Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do [him] [her] violence] [doing violence to [him] [her]].
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer]][a person legally authorized to execute process].
4. At the time, (Defendant) knew (victim) was [an officer]
- [a person legally authorized to execute process].
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991). See §843.01 Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.
Note to Judge:
A special instruction incorporating §776.051(1) Fla. Stat. should be given when the defendant was resisting an arrest by a law enforcement officer and the defense claims the officer was acting unlawfully.
A special instruction incorporating instructions 3.6(f); 3.6(g); and/or 3.6(h) should be given when the defense claims the police used excessive force.
Definition. Give if applicable.
“Offering” to do violence means threatening to do violence.
Walker v. State, 965 So. 2d 1281 (Fla. 2nd DCA 2007).
|
RESISTING OFFICER WITH VIOLENCE — 843.01
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Resisting officer without violence | 843.02 | 21.2 | |
This instruction was adopted in 1981 and amended in 1995 [657 So. 2d 1152], and 2008 [996 So. 2d 851], and 2014.
§ 843.02, Fla. Stat.
To prove the crime of Resisting Officer without Violence, the State must prove the following four elements beyond a reasonable doubt:
Note to Judge: An issue arises when the State charges that the defendant resisted Officer X or Officer Y. Under the current law, a defendant can commit only one count of Resisting Without Violence even if several officers are involved in the same event. See Wallace v. State, 724 So. 2d 1176 (Fla. 1998). One possible remedy for this problem would be to instruct:
To prove the crime of Resisting Officer without Violence, the State must prove all of the following four elements beyond a reasonable doubt as to at least one of the alleged victims named below:
1. (Defendant) [resisted] [obstructed] [opposed] (victim) .
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer] [a person legally
- authorized to execute process].
4. At the time, ( defendant) knew ( victim) was [an officer][a person legally authorized to execute process].
In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991). See § 843.02 Fla. Stat. for the type of officer covered by this statute.
The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.
|
RESISTING OFFICER WITHOUT VIOLENCE — 843.02
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 | |
This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1989 [543 So. 2d 1205], 1995 [657 So.2d 1152] , and 2008 [996 So. 2d 851], and 2014.
§ 817.49, Fla._Stat.
To prove the crime of False Reports of a Crime, the State must prove the following four elements beyond a reasonable doubt:
- 1. (Defendant) willfully [gave or
- 2.
- 3.
4. [He] [She] (Defendant) knew or should have known (_____________) (name of law enforcement officer) was a law enforcement officer.
The Court now instructs you that (insert name of crime) is a crime.
Definitions .
Patterson v. State, 512 So. 2d 1109 (Fla. 1 st DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 775.08, Fla._Stat.
“Crime” means a felony or misdemeanor.
Optional Definitions. § 775.08(1), Fla._Stat.
“Felony” means any criminal offense punishable by death or imprisonment in a state penitentiary.
§ 775.08(2), Fla.Stat.
“Misdemeanor” means any criminal offense punishable by imprisonment in a county correctional facility not in excess of one year.
No lesser included offenses have been identified for this offense.
The definition of law enforcement officer is contained in §§ 843.01, 843.02, Fla.Stat.
This instruction was adopted in 1981 and amended in 2014.
§ 837.05(2), Fla. Stat.
To prove the crime of Giving False Information Concerning the Commission of a Capital Felony, the State must prove the following six elements beyond a reasonable doubt:
- 1. (Defendant) knowingly gave information about the alleged commission of a crime.
2. (Defendant) knew the information was false.
3. The crime alleged was a capital felony.
4. (Defendant) gave the false information to (name of the law enforcement officer) .
5. (Name of law enforcement officer) was a law enforcement officer.
6. (Defendant) knew that (name of law enforcement) was a law enforcement officer.
The court now instructs you that (crime alleged) is a capital felony , and that a ( do not name the officer, instead insert his or her official position of law enforcement officer , such as deputy sheriff or police officer) is a law enforcement officer.
|
GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CAPITAL FELONY — 837.05(2)
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| Giving False Information Concerning A Crime | 837.05(1) | 21.5 | |
| False Report of Commission of Crime | 817.49 | 21.4 | |
See Wright v. State , 586 So.2d 1024, 1030 (Fla. 1991) on how to instruct the jury on who qualifies as a law enforcement officer. See Florida Statute § 843.01 for a list of law enforcement officers. Attempt is not a lesser included offense. See Silvestri v. State, 332 So.2d 351, 354 (Fla. 4th DCA 1976).
This instruction was adopted in 2007 [ 965 So. 2d 811] SC07-325, Corrected Opinion, August 30, 2007] and amended in 2014.
§ 849.09(1)(a), Fla._Stat.
To prove the crime of [Setting Up] [Promoting] , [Conducting a Lottery], the State must prove the following element beyond a reasonable doubt: that (defendant) participated in [setting up] [promoting] [conducting] a lottery by (read from charge) .
(Defendant) [set up] [promoted] [conducted] a lottery for [money] [anything of value].
When the charge goes into detail as to the modus operandi, it would be proper to add its language to the foregoing.
Definition s.
Little River Theatre Corporation v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller sums of money or things of smaller value are risked for the chance of getting money or property of greater value upon the happening of an uncertain event. The three elements of a lottery are: (1) consideration — that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.
A “bet” is when money or other property is risked, pledged, wagered, or staked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is risked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result, which includes but is not limited to the time, inconvenience, and effort required to attend or participate, at the expense of foregone alternatives and other opportunities.
A “prize by lot or chance” is when the award or winning prize is determined by a chance or uncertain or contingent event, the outcome of which is not influenced or controlled by a participant’s skill, such as by drawing numbers, entries, cards, or by rolling dice.
It is not necessary for the State to prove that the defendant had exclusive control or management of the lottery, but [he] [she] must be shown to have exercised some of the elements of management of the lottery either as owner or part owner, or as an agent or employee of an owner or part owner.
It is not sufficient to show that the defendant merely had possession of or sold lottery tickets or had possession of records of sale of lottery tickets, but these circumstances, if established, may be considered with other evidence in determining whether guilt of actual participation in [setting up] [promoting] [conducting] a lottery has been proved.
If there is evidence of an exception referred to at the end of § 849.09(1), Fla._Stat., in § 849.092 Fla._Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161 Fla. Stat. , an appropriate instruction should be given. When the charge goes into detail as to the modus operandi, it would be proper to add its language.
|
LOTTERY — 849.09(1)(a)
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Lottery | 849.09(1)(f) | ||
| Lottery | 849.09(1)(g) | 22.9 | |
| Lottery | 849.09(1)(h) | 22.10 | |
| Lottery | 849.09(1)(i) | ||
| Lottery | 849.09(1)(j) | ||
| Lottery | 849.09(1)(k) | 22.11 | |
| Playing at game of chance by lot | 849.11 | ||
| Gambling devices, etc. | 849.231 | ||
| Attempt | 777.04 | 5.1 | |
See Blackburn v. Ippolito , 156 So. 2d 550 (Fla. 2d DCA 1963)(“[T]hings other than money can constitute a sufficient consideration, moving from the participants in such scheme to the operators without any cash outlay being made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres , 184 So. 886 (Fla. 1938) (“The consideration required to support a simple contract need not be money or anything having a monetary value, but may consist of either a benefit to the promisor or a detriment to the promisee.” ) and Little River Theatre Corporation v. State , 185 So. 855 (Fla. 1939)(holding that increased attendance and receipts at a theater offering a “bank night” drawing satisfied the element of consideration, even though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2014.
§ 893.147(6), Fla. Stat.
To prove the crime of Retail Sale of Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt:
- 1. (Defendant) knowingly and willfully [sold] [offered for sale] at retail one or more objects defined as drug paraphernalia.
- 2. The object[s] [was][were]:
Give as applicable. § 893.145(12)(a)-(c), (g)-(m)
- (a) [a] metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipe[s].
(b) [a] water pipe[s].
(c) [a] carburetion tube[s] and device[s].
(d) [a] chamber pipe[s].
(e) [a] carburetor pipe[s].
(f) [an] electric pipe[s].
(g) [an] air-driven pipe[s].
(h) [a] chillum[s].
(i) [a] bong[s].
(j) [an] ice pipe[s] or [a] chiller[s].
Definitions.
The term “drug paraphernalia” means an object used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, hashish oil, or nitrous oxide into the human body.
“Knowingly” means with actual knowledge and understanding of the facts or the truth.
“Willfully” means intentionally, knowingly, and purposely.
No lesser included offenses have been identified for this offense.
It is unclear whether the exception for pipes primarily made of briar, meerschaum, clay, or corn cob is an element or an affirmative defense. In the absence of case law, trial judges will have to make that determination if the issue arises.
It is error to inform the jury of a prior violation of Retail Sale of Drug Paraphernalia. Therefore, if the information or indictment contains an allegation of one or more prior violations, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of a Retail Sale of Drug Paraphernalia, the historical fact of a previous violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh , 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2014.
§ 828.12(2), Fla. Stat.
To prove the crime of Aggravated Animal Cruelty, the State must prove the following two element s beyond a reasonable doubt:
- 1. (Defendant) [ intentionally committed an act to an animal ] [or]
[owned or had custody or control of an animal and failed to act]
- 2. (Defendant’s) [act] [or] [failure to act] resulted in [excessive or repeated infliction of unnecessary pain or suffering to the animal] [or] [the animal’s cruel death].
Give if applicable. Enhancement. § 828.12(2)(a), Fla. Stat.
If you find (defendant) guilty of Aggravated Animal Cruelty, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] knowingly and intentionally tortured or tormented an animal, and in so doing, [injured] [mutilated] [killed] the animal.
Definition of “cruelty” , if cruel death charged. § 828.02, Fla. Stat. Only read definition for terms “Torture” or “Torment” when State seeks sentencing enhancements pursuant to § 828.12(2)(a), Fla. Stat.
“Cruelty” [“Torture”] [“Torment”] includes any act, omission, or negligence whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when done in the interest of medical science.
Only read definition for terms “Torture” or “Torment” when State seeks sentencing enhancements pursuant to § 828.12(2)(a), Fla. Stat.
No lesser included offenses have been identified for this offense.
|
AGGRAVATED ANIMAL CRUELTY — 828.12(2)
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 | |
§ 828.12(3) Fla. Stat.
A person who commits multiple acts of Aggravated Animal Cruelty against an animal may be convicted of multiple counts of Aggravated Animal Cruelty. Also, a person who commits Aggravated Animal Cruelty against more than one animal may be convicted of multiple counts of Aggravated Animal Cruelty.
This instruction was adopted in 2008 [976 So. 2d 1081] and amended in 2014.
§ 828.12(1), Fla. Stat.
To prove the crime of Animal Cruelty, the State must prove the following element beyond a reasonable doubt:
Give a, b, or c as applicable.
(Defendant)
- a. unnecessarily [overloaded] [overdrove] [tormented] [mutilated] [killed] an animal.
b. deprived an animal of necessary [sustenance] [shelter].
c. carried an animal in or upon a vehicle [or otherwise] in a cruel or inhumane manner.
Definition. Give if applicable.
[“Torment”] [A “cruel” manner] includes every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when in the interest of medical science.
No lesser included offenses have been identified for this offense.
|
ANIMAL CRUELTY — 828.12(1)
|
|||
| CATEGORY ONE | CATEGORY TWO | FLA. STAT. | INS. NO. |
| None | |||
| Attempt | 777.04(1) | 5.1 | |
This instruction was adopted in 2008 [994 So. 2d 1038] and amended in 2014.
