The Florida Bar

Florida Bar News

Amendments to criminal jury instructions

Notices

Amendments to criminal jury instructions

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

3.6(m) – AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED
SUBSTANCE FOR LEGAL DISPOSAL

3.6(n) – AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE WAS LAWFULLY
OBTAINED FROM A PRACTITIONER OR PURSUANT TO A VALID
PRESCRIPTION

7.4 – SECOND DEGREE MURDER

10.20 – [CARE] [CUSTODY] [POSSESSION [CONTROL] OF [A FIREAM]
[AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC
VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

11.14(h) – SEXUAL OFFENDER DEFINITIONS

11.15(l) – SEXUAL PREDATOR DEFINTIONS

14.8 – UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD

16.11 – [POSSESION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL
INCLUDING SEXUAL CONDUCT BY A CHILD

20.18(a) – UNLAWFUL POSSESSION OF THE PERSONAL IDENTIFICATION
INFORMATION OF ANOTHER PERSON

22.10 – POSSESSING A LOTTERY TICKEY

22.11 – POSSESSING RUNDOWN SHEETS, ETC.

22.15 – [MANUFACTURING] [OWNING] [STORING] [KEEPING] [POSSESSION
OF] [PERMITTING THE OPERATION OF] [SELLING] [LEASING]
[TRANSPORTING] A SLOT MACHINE

25.2 – SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH
INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A
CONTROLLED SUBSTANCE

25.3 – SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN
GRAMS OF A CONTROLLED SUBSTANCE

25.4 – DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF MINOR

25.5 – BRINGING A CONTROLLED SUBSTANCE INTO THE STATE

25.6 – SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO
SELL, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE IN
SPECIFIED LOCATIONS

25.7(a) – TRAFFICKING IN (NAME OF CONTROLLED SUBSTANCE)

25.8 – OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.

25.13(g) – POSSESSION OF A PLACE FOR [[TRAFFICKING IN] [SALE OF] A
CONTROLLED SUBSTANCE] [MANUFACTURING A CONTROLLED
SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION]

25.13(h) – POSSESSION OF A PLACE USED TO MANUFACTURE A CONTROLLED
SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION (MINOR
PRESENTOR IN RESIDENCE)

25.14 – USE OR POSSESSION WITH INTENT TO USE DRUG PARAPHERNALIA

25.15 – DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR
MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA

25.15(b) – TRANSPORTATION OF DRUG PARAPHERNALIA

25.17 – CONTRABAND IN COUNTY DETENTION FACILITY

25.18 – CONTRABAND IN JUVENILE [DETENTION FACILITY] [COMMITMENT
PROGRAM]

25.19 – UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY, UTTERING
OR POSSESSION OF COUNTERFETI-RESISTANT PRESCRIPTION BALNKS
FOR CONTROLLED SUBSTANCES

25.20 – POSSESSION OF CONTRABAND [IN] [UPON THE GROUNDS OF] A
STATE CORRECTIONAL INSTITUTION

25.21 – [INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A
STATE CORRECTIONAL INSTITUTION

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before September 14, 2018. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to [email protected], in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL

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

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

      1. (Defendant) possessed the controlled substance.

      2. (Defendant) acquired the controlled substance without unlawful intent.

      3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.

      4. The temporary possession was solely for the purpose of legal disposal.

Definitions.
“Legal disposal” means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

To “possess a substance” means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

This defense does not apply if (defendant) disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

There is no statute for the defense of “legal disposal” and, as of May 2018, the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:
If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:
If you find that the State proved (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] not guilty.

Comment s

See See Ramsubhag v. State, 937 So. 2d 1192 (Fla. 4 th th DCA 2006) and Stanton v. State, 746 So. 2d 1229 (Fla. 3d DCA 1999) for discussion on this topic.

This instruction was adopted in 2012 2013 [141 So. 3d 132] and amended in 2018.

3.6(n) AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE
WAS LAWFULLY OBTAINED FROM A PRACTITIONER OR PURSUANT TO A VALID PRESCRIPTION
§§ 499.03(1), 893.13(6)(a) Fla. Stats.

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

It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he] [she] lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.

Like all affirmative defenses and pursuant to § 893.10(1), Fla. Stat., the burden of going forward with evidence of the defense is upon the defendant. Fla. Stats. 893.10(1), 893.13(6)(a), and 499.03(1) are silent, however, as to the burden of persuasion for the affirmative defense. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

For example, if the burden to prove the affirmative defense is on the defendant under the preponderance of the evidence standard.
If you find the defendant proved by a preponderance of the evidence that [he] [she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] not guilty of [possession of a controlled substance] [trafficking via possession]. If the defendant did not prove by a preponderance of the evidence that [he] [she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable doubt standard.
If you find that the State proved beyond a reasonable doubt that the defendant did not lawfully obtain the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt as to whether the defendant lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] not guilty of [possession of a controlled substance] [trafficking via possession].

Definitions.
To “possess a substance” means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

§ 893.02(2123), Fla. Stat.
“Practitioner” means a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, an advanced registered nurse practitioner certified under chapter 464, a naturopath licensed pursuant to chapter 462, a certified optometrist licensed under chapter 463, a psychiatric nurse who has an advanced registered nurse practitioner certified under § 464.012, Fla. Stat., and who has a master’s or doctoral degree in psychiatric nursing, holds a national advanced practice certification as a psychiatric mental health advanced practice nurse, and has 2 years of post-master’s clinical experience under the supervision of a physician, or a podiatric physician licensed pursuant to chapter 461, or a physician assistant licensed under chapter 458 or chapter 459, provided such practitioner holds a valid federal controlled substance registry number.

§ 893.02(2224), Fla. Stat.
“Prescription” means and includes an order for drugs or medicinal supplies written, signed, or transmitted by word of mouth, telephone, telegram, or other means of communication by a duly licensed practitioner licensed by the laws of the state to prescribe such drugs or medicinal supplies, issued in good faith and in the course of professional practice, intended to be filled, compounded, or dispensed by another person licensed by the laws of the state to do so. The term also includes an order for drugs or medicinal supplies so transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida if the pharmacist called upon to fill the order determines, in the exercise of his or her professional judgment, that the order was issued pursuant to a valid patient-physician relationship, that it is authentic, and that the drugs or medicinal supplies ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness.“Prescription” includes any order for drugs or medicinal supplies which is written or transmitted by any means of communication by a licensed practitioner authorized by the laws of this state to prescribe such drugs or medicinal supplies, is issued in good faith and in the course of professional practice, is intended to be dispensed by a person authorized by the laws of this state to do so, and meets the requirements of § 893.04, Fla. Stat. (If there is a dispute about whether the requirements were met, the judge should insert those requirements or the requirement(s) in dispute.)

[The term also includes an order for drugs or medicinal supplies transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida, but only if the pharmacist called upon to fill such an order determines, in the exercise of his or her professional judgment, that the order was issued pursuant to a valid patient-physician relationship, that it is authentic, and that the drugs or medicinal supplies ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness.]

Comment s


A special instruction is necessary where there is evidence that the defendant acted as an agent for the person who had a prescription. See See McCoy v. State, 56 So. 3d 37 (Fla. 1 st st DCA 2010).

It is undecided whether a defendant may rely on the prescription defense when he or she is charged with Possession With Intent. See See Celeste v. State, 79 So. 3d 898 (Fla. 5 th th DCA 2012); Ayotte v. State, 67 So. 3d 330 (Fla. 1 st st DCA 2011); and Wagner v. State, 88 So. 3d 250 (Fla. 4 th th DCA 2012).

See See Knipp v. State, 67 So. 3d 376 (Fla. 4 th th DCA 2011) regarding the availability of the prescription defense for a person who obtained the prescription in violation of the doctor shopping statute.

This instruction was adopted in 2013 [141 So. 3d 132] and amended in 2018.

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

In the absence of an express concession that the homicide was not excusable or justified, the trial judge must also read Instruction 7.1, Introduction to Homicide.

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

      1. (Victim) is dead.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(3), Fla. Stat. Williams v. State, 242 So. 3d 280 (Fla. 2018). The finding below should be made only for cases involving Second Degree Murder where it is alleged that the defendant actually killed, intended to kill, or attempted to kill the victim.
If you find (defendant) guilty of Second Degree Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim) .

Lesser Included Offenses

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


See Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84], 2008 [994 So. 2d 1038], 2014 [137 So. 3d 995], and 2018 [236 So. 3d 282], and 2019.

10.20 [CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT
§ 790.233(1), Fla. Stat.

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

      1. A judge issued a final injunction for protection against [domestic violence] [stalking] [cyberstalking] against ( defendant) .

      2. The final injunction had been served upon (defendant) or (defendant) had acknowledged receipt.

      3. While the final injunction was in force and effect, (defendant) had [ammunition] [a firearm] in [his] [her] care, custody, possession, or control.

Definitions. Give as applicable.
Fla. Stat. § 790.001(6) , Fla. Stat .
“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 nother crime. ] See Fla. Stat. § 790.001(1) for the definition of antique firearm.

Fla. Stat. § 790.001(4) , Fla. Stat.
“Destructive device” means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

“Destructive device” does not include:

        a. A device which is not designed, redesigned, used, or intended for use as a weapon; b. Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device; c. Any shotgun other than a short-barreled shotgun; or
        d. Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

Fla. Stat. § 790.001(19) , Fla. Stat.
“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.

“Care” and “custody” mean immediate charge and control exercised by a person over the named item. The terms care, custody, and control may be used interchangeably.

Possession.
To prove (defendant) “possessed” [a firearm] [ammunition], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [firearm] [ammunition] and b) intentionally exercised control over it.

Give if applicable.
Control can be exercised over [a firearm] [ammunition] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] [ammunition] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [firearm] [ammunition] or the present ability to direct its control by another.

Joint possession.
Possession of [a firearm] [ammunition] may be sole or joint, that is, two or more persons may possess it.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the object and

            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.

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

Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

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

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

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

      a. had direct physical custody of the [ammunition] [firearm], or
      b. was within ready reach of the [ammunition] [ firearm] and the [ammunition] [firearm] was under [his] [her] control, or

      c. had exclusive control of the place where the [ammunition] [firearm] was located,

you may infer that [he] [she] was aware of the presence of the [ammunition] [ firearm] and had the ability to control [it] [them].

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

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

Lesser Included Offenses
[CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT
790.233(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment s


This crime does not apply to a state or local officer as defined in Fla. Stat. § 943.10(14), Fla. Stat., holding an active certification, who received or possessed a firearm or ammunition for use in performing official duties on behalf of the officer’s employing agency, unless otherwise prohibited by the employing agency.

This instruction was adopted in 2014 [148 So. 2d 1204] and amended in 2018.

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

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

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

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

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

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

“Internet identifier” means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. “Internet identifier” does not include a date of birth, social security number, personal identification number (PIN), or password.

“Social Internet communication” means any communication through a commercial social networking website or application software. The term does not include any of the following:
1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;
2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or
3. Communication with a governmental entity.

“Commercial social networking website” means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

“Application software” means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

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

“Permanent residence” means a place where the person abides, lodges, or resides for 53 or more consecutive days.

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

“Temporary residence” means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 53 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

“Transient residence” means a place or county where a person lives, remains, or is located for a period of 53 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

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

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

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

Comment


This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012 [85 So. 3d 1090], 2013 [113 So. 3d 754], 2016 [195 So. 3d 1088] , and 2018 [– So. 3d –], and 2019.

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

Definitions.
“Sexual predator” means a person who:

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

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

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

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

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

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

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

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

“Internet identifier” means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. “Internet identifier” does not include a date of birth, social security number, personal identification number (PIN), or password.

“Social Internet communication” means any communication through a commercial social networking website or application software. The term does not include any of the following:
1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;
2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or
3. Communication with a governmental entity.

“Commercial social networking website” means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

“Application software” means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

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

“Permanent residence” means a place where the person abides, lodges, or resides for 5 3 or more consecutive days.

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

“Temporary residence” means a place where the person abides, lodges, or resides including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 3 or more days in the aggregate during any calendar year and which is not the person’s permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

“Transient residence” means a place or county where a person lives, remains, or is located for a period of 5 3 or more days in the aggregate during a calendar year and which is not the person’s permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

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

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

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

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012 [85 So. 3d 1090], 2013 [113 So. 3d 754], 2016 [195 So. 3d 1088], and 2018 [– So. 3d –], and 2019.

14.8 UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD
§ 817.60(8), Fla. Stat.

To prove the crime of Unlawful Possession of a Stolen [Credit] [Debit] Card, the State must prove the following four elements beyond a reasonable doubt:

      1. (Defendant) knowingly [possessed] [received] [retained custody of] a [credit] [debit] card.
      2. The [credit] [debit] card had been taken from the [possession] [custody] [control] of another without the cardholder’s consent.
      3. The (defendant) knew the [credit] [debit] card had been taken from the [possession] [custody] [control] of another without the cardholder’s consent.
      4. 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 prove that a person “possessed” a [credit] [debit] card, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [credit] [debit] card and b) intentionally exercised control over it.

Give if applicable.
Control can be exercised over a [credit] [debit] card whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to a [credit] [debit] card does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that the person had direct personal power to control the [credit] [debit] card or the present ability to direct its control by another.

Joint possession.
Possession of [credit] [debit] cardmay be sole or joint, that is, two or more persons may possess it.

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.

Lesser Included Offenses
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
Comments


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 2013 [131 So. 3d 720] and amended in 2018.

16.11 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD
§ 827.071(5)(a), Fla. Stat.

To prove the crime of [Possession] [Control] [Intentional Viewing] of Material including Sexual Conduct by a Child, the State must prove the following three elements beyond a reasonable doubt:

        1. (Defendant) [knowingly possessed] [knowingly controlled] [intentionally viewed] a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].
        2. The [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included, in whole or in part, sexual conduct by a child less than 18 years of age.
        3. (Defendant) knew that the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included sexual conduct by a child less than 18 years of age.

Definitions. Give if applicable.
§ 827.071(1)(h), Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Give if applicable.
A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

Give as applicable. § 827.071(1)(a), Fla. Stat.
“Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

§ 827.071(1)(e), Fla. Stat.
“Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

§ 827.071(1)(f), Fla. Stat.
“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.

§ 827.071(1)(g), Fla. Stat.
“Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

§ 827.071(1)(j), Fla. Stat.
“Simulated” means the explicit depiction of “sexual conduct,” as defined above, which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

§ 827.071(1)(b), Fla. Stat.
“Intentionally view” means to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.

Possession.
To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] that included sexual conduct by a child, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].

Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].

Lesser Included Offenses

[POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD—§ 827.071(5)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments


Effective October 1, 2012, if the photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes sexual conduct by more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense.

This instruction was adopted in 2008 [995 So. 2d 489] and amended in 2013 [131 So. 3d 720] and 2018.

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

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

        1. (Defendant) [intentionally] [or] [knowingly] possessed the personal identification information of (victim) .

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

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

A person has actual possession of an item when he or she is aware of the presence of the item and [either] has physical control over the item [or the item is so close as to be within ready reach and is under the control of the person].

A person has constructive possession of an item when he or she is not in actual possession of the item but is aware of the presence of the item, the item is in a place over which he or she has control, and he or she has the ability to control the item.

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

      Joint possession.

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

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

      a. had direct physical custody of the item, [or]
      b. was within ready reach of the item and the item was under [his] [her] control, [or]
      c. had exclusive control of the place where the item was located,

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

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

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the substance and had the power and intention to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) “possessed personal identification information,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the personal identification information and b) intentionally exercised control over that personal identification information.

Control can be exercised over personal identification information whether the information is carried on a person, near a person, or in a completely separate location. Mere proximity to the personal identification information does not establish that the person intentionally exercised control over the personal identification information in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the personal identification information or the present ability to direct its control by another.

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

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

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

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

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

      a. was under the reasonable belief that such possession was authorized by law or by the consent of (victim) .
      b. obtained (victim’s) personal identification information from a forum or resource that was open or available to the general public or from a public record.
      c. was the parent or legal guardian of (victim) and (victim) was a child.
      d. was appointed by a court to act as the guardian of (victim) and was authorized to possess (victim’s) personal identification information and make decisions regarding access to that personal identification information.
      e. was an employee of a governmental agency and possessed (victim’s) personal identification information in the ordinary course of business.
      f. was a person engaged in a lawful business and possessed (victim’s) personal identification information in the ordinary course of business.
      g. was a person who found a card or document issued by a governmental agency that contained (victim’s) personal identification information and [he] [she] took reasonably prompt action to return that card or document to its owner, to the governmental agency that issued the card or document, or to a law enforcement agency.
Lesser Included Offense

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


This instruction was adopted in 2016 [190 So. 3d 614] and amended in 2018.

22.10 POSSESSING A LOTTERY TICKET
§ 849.09(1)(h), Fla. Stat.

To prove the crime of Possessing a Lottery Ticket, the State must prove beyond a reasonable doubt that:

(Defendant) had in [his] [her] possession a lottery ticket or a coupon, share, or token evidencing some interest in a live lottery yet to be played or in a lottery that has already been played.

Definitions.
Lottery.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: (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.

Lottery ticket, coupon, or share.
A “lottery ticket, coupon, or share” is any paper, token, or thing that represents the right of the possessor to receive all or any part of a prize awarded or to be awarded in the operation of a lottery. It is not necessary that the rights of the holder be written or printed in plain language. It is sufficient if the ticket, coupon, share, or token by any manner known to those familiar with a particular lottery being played indicates or represents the rights of its owner or possessor.

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

Actual possession.
Actual possession means the person is aware of the presence of the object and

      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.

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

Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

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

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

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

      a. had direct physical custody of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] or

      b. was within ready reach of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was under [his] [her] control, or

      c. had exclusive control of the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located,

you may infer that [he] [she] was aware of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and had the ability to control [it] [them].

If (defendant) did not have exclusive control over the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located, you may not infer [he] [[she] had knowledge of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] or the ability to control [it] [them], in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and had the ability to control [it] [them] if [he] [she] had joint control over the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located, and the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) possessed a [lottery ticket] [coupon, share, or token], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [lottery ticket] [coupon, share, or token] and b) intentionally exercised control over that [lottery ticket] [coupon, share, or token].

Give if applicable.
Control can be exercised over a [lottery ticket] [coupon, share, or token] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to a [lottery ticket] [coupon, share, or token] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [lottery ticket] [coupon, share, or token] or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a [lottery ticket] [coupon, share, or token] may be sole or joint, that is, two or more persons may possess a [lottery ticket] [coupon, share, or token].

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.

Lesser Included Offenses


No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (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 any consist of either a benefit to the promisor or a detriment to the promisee.”)
and Little River Theatre Corp. 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 2015 [176 So. 3d 938] and 2018.

22.11 POSSESSING RUNDOWN SHEETS, ETC.
§ 849.09(1)(k), Fla. Stat.

To prove the crime of Possessing [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the State must prove the following two elements beyond a reasonable doubt:

      1. (Defendant) had in [his] [her] possession [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia].
      2. These articles were designed for use, directly or indirectly, in gambling or in the conduct of a lottery.

Definitions.
Gambling.
“Gambling” is a game of chance in which the participant risks money or property on the outcome with the expectation of gaining or losing as a result of the game.

Lottery.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: (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.

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

Actual possession.
Actual possession means the person is aware of the presence of the object and

      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.

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

Give if applicable.
Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

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

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

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

a. had direct physical custody of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia], or

b. was within ready reach of the [run down sheets] [tally sheets] [or] [other

      papers, records, instruments, or paraphernalia] and the [run down
      sheets] [tally sheets] [or] [other papers, records, instruments, or
      paraphernalia] were under [his] [her] control, or

c. had exclusive control of the place where the [run down sheets] [tally

      sheets] [or] [other papers, records, instruments, or paraphernalia] were
      located,

you may infer that [he] [she] was aware of the presence of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] and had the ability to control them.

If (defendant) did not have exclusive control over the place where the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located, you may not infer [he] [[she] had knowledge of the presence of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] or the ability to control them, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the[run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia]] and had the ability to control them if [he] [she] had joint control over the place where the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located, and the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located in a common area in plain view and in the presence of the defendant.
To prove (defendant) possessed [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], and b) intentionally exercised control over those [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia],

Give if applicable.
Control can be exercised over Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], whether they are carried on a person, near a person, or in a completely separate location. Mere proximity to [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], does not establish that the person intentionally exercised control over them in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], or the present ability to direct their control by another.

Joint possession. Give if applicable.
Possession of [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], may be sole or joint, that is, two or more persons may possess [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia],.

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.

Lesser Included Offenses


No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (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 any consist of either a benefit to the promisor or a detriment to the promisee.”)
and Little River Theatre Corp. 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 2015 [176 So. 3d 938] and 2018.

– 4 –

22.15 [MANUFACTUING] [OWNING] [STORING] [KEEPING]
[POSSESSION OF] [PERMITTING THE OPERATION OF]
[SELLING] [LEASING] [TRANSPORTING] A SLOT MACHINE
§ 849.15(1)(a) and (b), Fla. Stat.

To prove the crime of (crime charged) , the State must prove the following element beyond a reasonable doubt:

Give as applicable.

(Defendant)

        a. [manufactured] [owned] [stored] [kept] [possessed]

          [sold] [leased] [let on shares] [lent] [gave away] [transported] [exposed for sale or lease] any slot machine or device [or any part of a slot machine or device].
        b. offered to [sell] [rent] [lease] [let on shares] [lend] [give away] any slot machine or device [or any part of a slot machine or device].
        c. permitted the operation of any slot machine or device [or any part of a slot machine or device].
        d. permitted any slot machine or device [or any part of

a slot machine or device] to be [placed] [maintained] [used] [kept]
in a [room] [space] [building] owned, leased, or occupied by [him]
[her] or under [his] [her] management or control.

        e. [or permitted to be made] an agreement with another, pursuant to which the user of any slot machine or device, may become entitled to receive [money] [credit] [allowance] [a thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]].

§ 849.16, Fla. Stat.
A “slot machine or device” is a machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or of any other outcome unpredictable by the user, may:

    a) receive or become entitled to receive any piece of money, credit, allowance, or thing of value; or b) receive or become entitled to receive any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or c) secure additional chances or rights to use such machine, apparatus, or device, even though the device or system may be available for free play, or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.

Give if applicable. §§ 849.16(1)(b), 551.102(8), Fla. Stats.
A “slot machine” includes, but is not limited to, devices regulated as slot machines under chapter 551 of Florida Statutes. Under chapter 551, a “slot machine” means any mechanical or electrical contrivance, terminal that may or may not be capable of downloading slot games from a central server system, machine, or other device that, upon insertion of a coin, bill, ticket, token, or similar object or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both, may deliver or entitle the person or persons playing or operating the contrivance, terminal, machine, or other device to receive cash, billets, tickets, tokens, or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually. The term includes associated equipment necessary to conduct the operation of the contrivance, terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a “coin-operated amusement machine” as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161, Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161, Fla. Stat. as applicable.

Give if applicable. § 849.094(8)(a), Fla. Stat.
Compliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device.

Give if applicable. § 849.16(3), Fla. Stat.
You are permitted to infer that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

Possession.
To prove (defendant) possessed a slot machine or device [or any part of a slot machine or device], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the slot machine or device [or any part of a slot machine or device] and b) intentionally exercised control over that slot machine or device [or any part of a slot machine or device].

Give if applicable.
Control can be exercised over a slot machine or device [or any part of a slot machine or device] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to a slot machine or device [or any part of a slot machine or device] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the slot machine or device [or any part of a slot machine or device] or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a slot machine or device [or any part of a slot machine or device] may be sole or joint, that is, two or more persons may possess a slot machine or device [or any part of a slot machine or device].

Lesser Included Offenses

[POSSESSION] [PERMITTING THE OPERATION] OF A SLOT MACHINE — 849.15(1)(a) and (b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments


It is not necessary for the State to prove that the slot machine or device was used for gambling. See Eccles v. Stone, 183 So. 628 (Fla. 1938) ; Dept. of Business Regulation v. Rains, 477 So. 2d 1029 (Fla. 2d DCA 1985) .

I t is a defense to Possession of a Slot Machine if the device is an antique slot machine and is not being used for gambling. An antique slot machine is one which was manufactured at least 20 years prior to the prosecution. See See § 849.235, Fla. Stat.

This instruction was adopted in 2013 [122 So. 3d 302] and amended in 2014 [148 So. 3d 1204] and 2018.

25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE

§ 893.13(1)(a), Fla. Stat.; and§ 893.13(2)(a), Fla. Stat.

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

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

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

      2. The substance was (specific substance alleged).

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

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight. Give if applicable.
If you find that (defendant) is guilty of Delivery of Cannabis, you must then determine if the State proved beyond a reasonable doubt that the cannabis weighed more than 20 grams. For purposes of this offense, “cannabis” does not include the resin extracted from the plants of the genus Cannabis or any compound manufacture, salt, derivative, mixture, or preparation of such resin.

Definitions. Give as applicable.
Cannabis. § §§ 893.02(3) ; 893.13(3); 893.13(6)(b) , Fla. Stat s .
See Comment section for medical marijuana.
Cannabis means all parts of any plant of the genus Cannabis , whether growing or not and the seeds thereof ; and the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

Sell.
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

Manufacture. § 893.02(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

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

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

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

Deliver. § 893.02(6), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged).

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence ofpossessed the controlled substance and exercised control or ownership over the substance.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permittedmay but are not required to infer that a person who sells a controlled substance knows of its illicit nature.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of (crime charged).

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

Lesser Included Offenses

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

*The crime of Possession of a Controlled Substance is not a necessarily lesser-included crime of Manufacture of a Controlled Substance. Anderson v. State , 447 So. 2d 236 (Fla. 1st DCA 1983). Also, Possession of a Controlled Substance is not a necessary lesser included offense of Sale of a Controlled Substance. State v. McCloud , 577 So. 2d 939 (Fla. 1991). It is unclear if the courts will determine that a person charged with Purchase or Delivery of a Controlled Substance is necessarily charged with Possession of a Controlled Substance.

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

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

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

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.3 SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS OF A CONTROLLED SUBSTANCE

§ 893.13(1)(b), Fla. Stat.; § 893.13(2)(b), Fla. Stat.; and § 893.13(6)(c), Fla. Stat.

This instruction will have to be altered if a combination of substances or a mixture containing a prohibited substance is alleged.

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

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

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

      2. The substance was (specific substance alleged).

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

Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

Deliver. § 893.02(6), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). You are permitted may but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence ofpossessed the controlled substance and exercised control or ownership over the substance.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permittedmay but are not required to infer that a person who sells a controlled substance knows of its illicit nature.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of (crime charged).

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

Lesser Included Offenses

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

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is necessarily included in a charge of Purchase or Delivery of a Controlled Substance. Possession is not a necessary lesser included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud , 577 So. 2d 939 (Fla. 1991); Anderson v. State , 447 So. 2d 236 (Fla. 1st DCA 1983).

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

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.4 DELIVERY OF A CONTROLLED SUBSTANCE TO

OR USE OF MINOR

§ 893.13(4), Fla. Stat.

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

To prove the crime of (crime charged), the State must prove the following [four elements beyond a reasonable doubt:

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

      1. a. (Defendant) delivered a certain substance to a person under

the age of 18 years.

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

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

      2. The substance was (specific substance alleged) .

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

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

Definition.
Deliver. § 893.02(6), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence ofpossessed the controlled substance and exercised control or ownership over the substance.

To prove (defendant) “possessed a substance,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of (crime charged).

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

Lesser Included Offenses

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

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is a necessarily lesser-included offense of a charge involving Delivery of a Controlled Substance. Possession is not a necessary lesser-included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud , 577 So. 2d 939 (Fla. 1991); Anderson v. State , 447 So. 2d 236 (Fla. 1st DCA 1983).

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

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.5 BRINGING A CONTROLLED SUBSTANCE INTO THE STATE

§ 893.13(5), Fla. Stat.

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

To prove the crime of Bringing a Controlled Substance Into the State, the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) brought a certain substance into Florida.

      2. The substance was (specific substance alleged).

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

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Bringing a Controlled Substance Into the State. You are permitted may but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of possessed the controlled substance and exercised control or ownership over the substance.

To prove (defendant) “possessed a substance,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Bringing a Controlled Substance Into the State.

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

Lesser Included Offenses

BRINGING A CONTROLLED SUBSTANCE INTO THE
STATE — 893.13(5)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
*None
Attempt 777.04(1) 5.1

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is necessarily included in a charge of Bringing a Controlled Substance into the State. Possession is not a necessary lesser included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud , 577 So. 2d 939 (Fla. 1991); Anderson v. State , 447 So. 2d 236 (Fla. 1st DCA 1983).

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

This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.6 SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS

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

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

To prove the crime of (crime charged), the State must prove the following four elements beyond a reasonable doubt:

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

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

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

          [the real property comprising a child care facility];

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

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

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

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

          [a convenience business];

          [the real property comprising a public housing facility];

          [the real property comprising an assisted living facility].

      3. The substance was (specific substance alleged) .

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

Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

Manufacture. § 893.02(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

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

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

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

Deliver. § 893.02(6), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

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

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

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

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

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

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence ofpossessed the controlled substance and exercised control or ownership over the substance.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permittedmay but are not required to infer that a person who sells a controlled substance knows of its illicit nature.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of (crime charged).

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

Lesser Included Offenses

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

Comments

*The crime of Possession of a Controlled Substance is not a necessarily lesser-included crime of Manufacture of a Controlled Substance. Anderson v. State , 447 So. 2d 236 (Fla. 1st DCA 1983). Also, Possession of a Controlled Substance is not a necessary lesser included offense of Sale of a Controlled Substance. State v. McCloud , 577 So. 2d 939 (Fla. 1991). It is unclear if the courts will determine that a person charged with Purchase or Delivery of a Controlled Substance is necessarily charged with Possession of a Controlled Substance.

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

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2000 [765 So. 2d 692], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

THE COMMITTEE PROPOSES TO REPLACE THE 12 STANDARD DRUG TRAFFICKING INSTRUCTIONS WITH ONE GENERIC DRUG TRAFFICKING INSTRUCTION IN WHICH THE APPROPRIATE NAME OF THE CONTROLLED SUBSTANCE AND THE APPROPRIATE WEIGHT(S) CAN BE INSERTED.

25.7(a) TRAFFICKING IN (NAME OF CONTROLLED SUBSTANCE)

§ 893.135(1), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Name of controlled substance) is a controlled substance.

To prove the crime of Trafficking in (name of controlled substance) , the State must prove the following three elements beyond a reasonable doubt:

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

      2. The substance was [(name of controlled substance)] [a mixture containing (name of controlled substance)].

      3. The [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight alleged)].

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

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

      2. The defendant actually [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] (a controlled substance enumerated in § 893.135(1), Fla. Stat.).

Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

Manufacture. § 893.02(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

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

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

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

Deliver. § 893.02(6), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

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

Possession.
To prove (defendant) knowingly possessed a substance, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in (name of controlled substance). You may but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] possessed the controlled substance.

Give if applicable. McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You may but are not required to infer that a person who sells a controlled substance knows of its illicit nature.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in (name of controlled substance).

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

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

§ 893.135(1) Fla. Stat. contains differing weights and associated penalties for various controlled substances. Give if applicable, as determined by the date of the offense, up to the weight charged.

          a. the [ (name of controlled substance) ] [mixture containing (name of controlled substance) ] weighed [ (insert weight)] but less than [ (insert weight)].

          b. the [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight)] but less than [(insert weight)].

          c. the [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight)] but less than [(insert weight)].

Lesser Included Offenses

Trafficking can be committed by possession, sale, purchase, manufacture, delivery, or by bringing into this state a certain amount of drugs. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense because of State v. McCloud , 577 So. 2d 939 (Fla. 1991)(holding that possession of cocaine is not a lesser-included offense of sale of cocaine). Also, there is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6), Fla. Stat., includes the attempt to transfer from one person to another.

Comments

One way to commit Trafficking in Cannabis is to knowingly possess, sell, purchase, manufacture, deliver, or bring into the state 300 or more cannabis plants. Also, the trafficking statute for some of the controlled substances include not only the controlled substance or a mixture containing that controlled substance, but also a salt, derivative, isomer, salt of an isomer, analog, substituted controlled substance, ester, ether, salt of an ester, or salt of an ether of that controlled substance. A special instruction is needed in those cases.

There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 2018.

25.8 OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.

§ 893.13(7)(a)9., Fla. Stat.

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

To prove the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) [acquired or obtained] [attempted to acquire or obtain] possession of a certain substance.

      2. The substance was (specific substance alleged).

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

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of[he] [she] possessed the controlled substance. Read explanation of actual and/or constructive possession, as applicable.

To prove (defendant) “possessed a substance,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

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

Lesser Included Offenses

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

Comments

*It is unclear if the courts will determine that a person charged with Obtaining a Controlled Substance by Fraud, etc. is necessarily charged with [Attempted] Possession of a Controlled Substance.

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

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.13(g) POSSESSION OF A PLACE FOR [[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION]
§ 893.1351(2), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Insert name(s) of controlled substance(s)) [is a] [are] controlled substance[s].

To prove the crime of Possession of a Place for [[Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a Controlled Substance Intended for Sale or Distribution], the State must prove the following two elements beyond a reasonable doubt:

      1. (Defendant) was knowingly in possession of a [place] [structure [or part thereof]] [conveyance]. 2. At the time, (defendant) knew the [place] [structure [or part thereof]] [conveyance] would be used for the purpose of [Trafficking in (insert name(s) of controlled substance) ] [Sale of a Controlled Substance] [Manufacture of a Controlled Substance that was intended for sale or distribution to another] .

Inference. Give if applicable. § 893.1351(4), Fla. Stat.
You may but are not required to infer that cannabis was intended for sale or distribution upon proof of the possession of 25 or more cannabis plants.

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

Definitions. Give as applicable.
§ 810.011(1), Fla. Stat. Dubose v. State, 210 So. 3d 641 (Fla. 2017).
A “structure” is any building of any kind, either temporary or permanent, which has a roof over it together with the curtilage. The “curtilage” is the enclosed land adjoining the structure. [The enclosure need not be continuous as it may have an ungated opening for entering and exiting.]

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

Insert elements of Trafficking alleged, if applicable.

“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

§ 893.02(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

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

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

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

Possession.
To prove (defendant) “possessed a [place] [structure [or part thereof]] [conveyance],” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [place] [structure [or part thereof]] [conveyance] and b) intentionally exercised control over it.

Give if applicable.
Control can be exercised over a [place] [structure [or part thereof]] [conveyance] regardless of whether it is near a person or in a completely separate location. Mere proximity to a [place] [structure [or part thereof]] [conveyance] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [place] [structure [or part thereof]] [conveyance] or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a [place] [structure [or part thereof]] [conveyance] may be sole or joint, that is, two or more persons may possess a substance.

Lesser Included Offenses*
POSSESSION OF A PLACE FOR [[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION — § 893.1351(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
[Ownership] [Lease] [Rental] of a Place for [[Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a Controlled Substance Intended for Sale or Distribution] 893.1351(1) 25.13(f)
Trafficking or Sale or Manufacture of a Controlled Substance* 893.135 or 893.13(1) Many of the Chapter 25 standard
instructions may apply
Attempt 777.04(1) 5.1

*If a person possesses a place knowing that the place will be used for trafficking, sale or manufacture of drugs, then the person is guilty of Trafficking, Sale, or Manufacture of drugs as an aider or abettor. Therefore, Trafficking or Sale or Manufacture of a Controlled Substance are Category One lesser included offenses depending on what is charged. Moreover, Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of various amounts of drugs. Trial judges must review not only the evidence but also the charging document to determine all of the appropriate lesser-included offenses.

Comments

It is unlawful to sell or manufacture all of the controlled substances listed in § 893.02, Florida Statutes. However, only certain controlled substances qualify for prosecution under the trafficking statute, § 893.135, Florida Statutes. Accordingly, the exact nature of the substance must be proven if the State is prosecuting under the trafficking prong of § 893.1351(2), Florida Statutes.

A special instruction will be required if the defense is that the defendant did not know of the illicit nature of the controlled substance. See § 893.101, Fla. Stat.

§ 893.1351(1) and (2), Fla. Stat., require that the place will be used for certain drug-related activity while § 893.1351(3), Fla. Stat., requires that the place was being used to manufacture a controlled substance. See Zeigler v. State , 198 So. 3d 1005 (Fla. 1st DCA 2016).

This instruction was adopted in 2018.

25.13(h) POSSESSION OF A PLACE USED TO MANUFACTURE A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION (MINOR PRESENT OR IN RESIDENCE)
§ 893.1351(3), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Insert name(s) of controlled substance(s)) [is a] [are] controlled substance[s].

To prove the crime of Possession of a Place Used to Manufacture a Controlled Substance Intended for Sale or Distribution (Minor Present or in Residence), the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) was knowingly in possession of a [place] [structure] [conveyance]. 2. At the time, (defendant) knew the [place] [structure] [conveyance] was being used to manufacture a controlled substance that was intended for sale or distribution to another.

      3.___At the time, (defendant) knew or should have known that a minor was present or resided in the [place] [structure] [conveyance].

Inference. Give if applicable. § 893.1351(4), Fla. Stat.
You may but are not required to infer that cannabis was intended for sale or distribution upon proof of the possession of 25 or more cannabis plants.

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

Definitions. Give as applicable.
§ 810.011(1), Fla. Stat. Dubose v. State, 210 So. 3d 641 (Fla. 2017).
A “structure” is any building of any kind, either temporary or permanent, which has a roof over it together with the curtilage. The “curtilage” is the enclosed land adjoining the structure. [The enclosure need not be continuous as it may have an ungated opening for entering and exiting.]

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

“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

§ 893.02(15)(a), Fla. Stat.
“Manufacture” means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

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

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

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

Possession.
To prove (defendant) “possessed a [place] [structure] [conveyance],” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [place] [structure] [conveyance] and b) intentionally exercised control over it.

Give if applicable.
Control can be exercised over a [place] [structure] [conveyance] regardless of whether it is near a person or in a completely separate location. Mere proximity to a [place] [structure] [conveyance] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [place] [structure] [conveyance] or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a [place] [structure] [conveyance] may be sole or joint, that is, two or more persons may possess a substance.

§ 847.0137(1)(a), Fla. Stat.
“Minor” means any person less than 18 years of age.

Lesser Included Offenses*
POSSESSION OF A PLACE USED TO MANUFACTURE A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION (MINOR PRESENT OR IN RESIDENCE) —
§ 893.1351(3)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Manufacture of a Controlled Substance 893.13(1)(a) 25.2
Contributing to the delinquency of a minor 827.04(1) 16.4
Manufacture methamphetamine and other drugs in presence of child younger than 16 893.13(1)(g)
Attempt 777.04(1) 5.1

Comments

The crimes in § 893.1351(1), Fla. Stat., and § 893.1351(2), Fla. Stat., are not necessary lesser included offenses because they have an element that is not present in § 893.1351(3), Fla. Stat.. Specifically, § 893.1351(1) and (2), Fla. Stats., require that the place will be used for certain drug-related activity while § 893.1351(3), Fla. Stat., requires that the place was being used to manufacture a controlled substance. See Zeigler v. State , 198 So. 3d 1005 (Fla. 1st DCA 2016).

A special instruction will be required if the defense is that the defendant did not know of the illicit nature of the controlled substance. See § 893.101, Florida Statutes.

This instruction was adopted in 2018.

25.14 USE OR POSSESSION WITH INTENT TO USE DRUG PARAPHERNALIA

§ 893.147(1), Fla. Stat.

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

      1. (Defendant) knew of the presence of drug paraphernalia.

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

          [plant] [propagate] [cultivate] [grow] [harvest] [manufacture] [compound] [convert] [produce] [process] [prepare] [test] [analyze] [pack] [repack] [store] [contain] [conceal] a controlled substance;

          or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if applicable.
Control can be exercised over drug paraphernalia whether the drug paraphernalia is carried on a person, near a person, or in a completely separate location. Mere proximity to drug paraphernalia does not establish that the person intentionally exercised control over the drug paraphernalia in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the drug paraphernalia or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of drug paraphernalia may be sole or joint, that is, two or more persons may possess drug paraphernalia.

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

It includes, but is not limited to:
Give specific definition as applicable.

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

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

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

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

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

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

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

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

      9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

      10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

      11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

      12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing controlled substances or a substance listed in § 877.111, Florida Statutes, into the human body, such as:

          a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

          b. Water pipes.

          c. Carburetion tubes and devices.

          d. Smoking and carburetion masks.

          e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

          f. Miniature cocaine spoons, and cocaine vials.

          g. Chamber pipes.

          h. Carburetor pipes.

          i. Electric pipes.

          j. Air-driven pipes.

          k. Chillums.

          l. Bongs.

          m. Ice pipes or chillers.

Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

      1. Statements by an owner or by anyone in control of the object concerning its use.

      2. The proximity of the object, in time and space, to a direct violation of the drug laws.

      3. The proximity of the object to controlled substances.

      4. The existence of any residue of controlled substances on the object.

      5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

      6. Instructions, oral or written, provided with the object concerning its use.

      7. Descriptive materials accompanying the object which explain or depict its use.

      8. Any advertising concerning its use.

      9. The manner in which the object is displayed for sale.

      10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

      11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

      12. The existence and scope of legitimate uses for the object in the community.

      13. Expert testimony concerning its use.

Lesser Included Offenses

POSSESSION OF DRUG PARAPHERNALIA — 893.147(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1

Comment


This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.15 DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA

§ 893.147(2), Fla. Stat.

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

      1. (Defendant) [delivered] [possessed with intent to deliver] [manufactured with intent to deliver] drug paraphernalia.

      2. (Defendant) had knowledge of the presence of the drug paraphernalia.

      3. (Defendant) knew or reasonably should have known that the drug paraphernalia would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.

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

Definitions.
Possession. Give if possession with intent to deliver is charged.
There are two types of possession: actual possession and constructive possession.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the drug paraphernalia and had the power and intention to control it if [he] [she] had joint control over the place where the drug paraphernalia was located, and the drug paraphernalia was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) “possessed drug paraphernalia,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the drug paraphernalia and b) intentionally exercised control over that drug paraphernalia.

Give if applicable.
Control can be exercised over drug paraphernalia whether the drug paraphernalia is carried on a person, near a person, or in a completely separate location. Mere proximity to drug paraphernalia does not establish that the person intentionally exercised control over the drug paraphernalia in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the drug paraphernalia or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of drug paraphernalia may be sole or joint, that is, two or more persons may possess drug paraphernalia.

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

Give specific definition as applicable.

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

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

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

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

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

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

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

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

      9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

      10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

      11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

      12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing controlled substances or a substance listed in § 877.111, Florida Statutes, into the human body, such as:

          a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

          b. Water pipes.

          c. Carburetion tubes and devices.

          d. Smoking and carburetion masks.

          e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

          f. Miniature cocaine spoons, and cocaine vials.

          g. Chamber pipes.

          h. Carburetor pipes.

          i. Electric pipes.

          j. Air-driven pipes.

          k. Chillums.

          l. Bongs.

          m. Ice pipes or chillers.

Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

      1. Statements by an owner or by anyone in control of the object concerning its use.

      2. The proximity of the object, in time and space, to a direct violation of the drug laws.

      3. The proximity of the object to controlled substances.

      4. The existence of any residue of controlled substances on the object.

      5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

      6. Instructions, oral or written, provided with the object concerning its use.

      7. Descriptive materials accompanying the object which explain or depict its use.

      8. Any advertising concerning its use.

      9. The manner in which the object is displayed for sale.

      10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

      11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

      12. The existence and scope of legitimate uses for the object in the community.

      13. Expert testimony concerning its use.

Lesser Included Offenses

DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH INTENT TO DELIVER DRUG PARAPHERNALIA — 893.147(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
*Possession of Drug Paraphernalia, if Possession of Drug Paraphernalia with Intent is charged 893.147(1) 25.14
Attempt 777.04(1) 5.1

Comment

*It is unclear if the courts will determine that a person charged with either Delivery of Drug Paraphernalia or Manufacture with Intent to Deliver Drug Paraphernalia is necessarily charged with Possession of Drug Paraphernalia.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.15(b) TRANSPORTATION OF DRUG PARAPHERNALIA
§ 893.147(4), Fla. Stat.

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

      1. (Defendant) [used] [or] [possessed with intent to use] [or] [manufactured with the intent to use] drug paraphernalia.

      2. At the time, (defendant) knew or reasonably should have known that the drug paraphernalia was to be used to transport [a controlled substance] [contraband].

      Definitions. Give if applicable.
      Possession.

To prove (defendant) “possessed drug paraphernalia,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the drug paraphernalia and b) intentionally exercised control over that drug paraphernalia.

Give if applicable.
Control can be exercised over drug paraphernalia whether the drug paraphernalia is carried on a person, near a person, or in a completely separate location. Mere proximity to drug paraphernalia does not establish that the person intentionally exercised control over the drug paraphernalia in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the drug paraphernalia or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of drug paraphernalia may be sole or joint, that is, two or more persons may possess drug paraphernalia.

§ 893.145, Fla. Stat.
“Drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or a substance listed in § 877.111, Florida Statutes.

The Court instructs you that (name of substance) is a [controlled substance] [substance listed in § 877.111, Florida Statutes].

“Drug paraphernalia” includes, but is not limited to:

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

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

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

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

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

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

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

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

Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

Containers and other objects used, intended for use, or designed for use in storing, concealing, or transporting controlled substances.

Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing controlled substances or substances described in § 877.111(1), Florida Statutes, into the human body, such as:

      (a)  Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes, with or without screens, permanent screens, hashish heads, or punctured metal bowls.

(b)  Water pipes.
(c)  Carburetion tubes and devices.
(d)  Smoking and carburetion masks.

      (e)  Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

(f)  Miniature cocaine spoons, and cocaine vials.
(g)  Chamber pipes.
(h)  Carburetor pipes.
(i)  Electric pipes.
(j)  Air-driven pipes.
(k) Chillums.
(l)  Bongs.
(m) Ice pipes or chillers.

      (n) A cartridge or canister, which means a small metal device used to contain nitrous oxide.
      (o) A charger, sometimes referred to as a “cracker,” which means a small metal or plastic device that contains an interior pin that may be used to expel nitrous oxide from a cartridge or container.
      (p)  A charging bottle, which means a device that may be used to expel nitrous oxide from a cartridge or canister.
      (q)  A whip-it, which means a device that may be used to expel nitrous oxide.

(r)  A tank.
(s)  A balloon.
(t)  A hose or tube.
(u) A 2-liter-type soda bottle.
(v) Duct tape.

Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

      1. Statements by an owner or by anyone in control of the object concerning its use.

      2. The proximity of the object, in time and space, to a direct violation of the drug laws.

      3. The proximity of the object to controlled substances.

      4. The existence of any residue of controlled substances on the object.

      5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

      6. Instructions, oral or written, provided with the object concerning its use.

      7. Descriptive materials accompanying the object which explain or depict its use.

      8. Any advertising concerning its use.

      9. The manner in which the object is displayed for sale.

      10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

      11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

      12. The existence and scope of legitimate uses for the object in the community.

      13. Expert testimony concerning its use.

      § 893.147(4)(b), Fla. Stat.; § 932.701(2)(a)1., Fla. Stat.

Contraband” is defined as any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of the drug laws, if the totality of the facts presented by the State is clearly sufficient to establish that a nexus exists between the article seized and the narcotics activity, whether or not the use of the use of the contraband article can be traced to a specific narcotics transaction.

Lesser Included Offenses

TRANSPORTATION OF DRUG PARAPHERNALIA — 893.147(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
*None
Attempt 777.04(1) 5.1
Comments

*It is unclear if the courts will determine that a person charged with Transportation of Drug Paraphernalia is necessarily charged with Possession of Drug Paraphernalia.

This instruction was adopted in 2018.

25.17 CONTRABAND IN COUNTY DETENTION FACILITY

§ 951.22, Fla. Stat.

To prove the crime of Contraband in a County Detention Facility, the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) had knowledge of the presence of an item.

      2. (Defendant)

Give as applicable.

          a. introduced the item into a county detention facility.

          b. possessed the item upon the grounds of a county detention facility.

          c. gave the item to an inmate of a county detention facility.

          d. received the item from an inmate of a county detention facility.

          e. took the item from a county detention facility.

          f. attempted to [take] [send] the item from a county detention facility.

      3. The item was:

Give as applicable.

          a. a written communication to give to or receive from an inmate.

          b. a recorded communication to give to or receive from an inmate.

          c. currency or coin to give to or receive from an inmate.

          d. an article of [food] [clothing] to give to or receive from an inmate.

          e. a tobacco product.

          f. a cigarette.

          g. a cigar.

          h. a beverage that causes or may cause an intoxicating effect.

          i. a narcotic, hypnotic, or excitative drug or drug of any kind or nature.

          j. a controlled substance.

          k. a firearm.

          l. any instrumentality customarily used or which is intended to be used as a dangerous weapon.

          m. any instrumentality of any nature that may be or is intended to be used as an aid in effecting or attempting to effect an escape from a county facility.

Definitions.
Give in all cases. § 951.23(1)(a), Fla. Stat.
“County detention facility” means a county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or misdemeanor.

§ 951.23(1)(b), Fla. Stat.
“County residential probation center” means a county-operated facility housing offenders serving misdemeanor sentences or first-time felony sentences.

§ 951.23(1)(d), Fla. Stat.
“Municipal detention facility” means a city jail, a city stockade, a city prison camp, and any other place except a county detention facility used by a municipality or municipal officer for the detention of persons charged with or convicted of violation of municipal laws or ordinances.

Give as applicable.
To “introduce” means to put inside or into.

Give when the evidence involves an inmate who is not in the facility.
It is unlawful to [give] [receive] a contraband item [to] [from] an inmate of a county detention facility even if the inmate was outside the facility at the time the contraband item was [given] [received].

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Clothing” means things worn to cover the body and limbs.

Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Currency” means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).
A “weapon” is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if tobacco product is alleged. § 210.25(11), Fla. Stat.
“Tobacco products” means loose tobacco suitable for smoking; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but “tobacco products” does not include cigarettes or cigars.

Give if cigarette is alleged. § 210.01(1), Fla. Stat.
“Cigarette” means any roll for smoking, except one of which the tobacco is fully naturally fermented, without regard to the kind of tobacco or other substances used in the inner roll or the nature or composition of the material in which the roll is wrapped, which is made wholly or in part of tobacco irrespective of size or shape and whether such tobacco is flavored, adulterated or mixed with any other ingredient.

Give if a drug or controlled substance is alleged.
A “drug of any kind” includes [nasal inhalators] [sleeping pills] [barbiturates] [a controlled substance]. (Name of drug or controlled substance) is a [drug] [controlled substance].

Give if firearm is alleged. § 790.001(6), Fla. Stat.
“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]. [A destructive device is (insert definition in § 790.001(4), Fla. Stat. .] [A “machine gun” is (insert definition in § 790.001(9), Fla. Stat. .]

Give if possession is alleged.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the object and

          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.

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

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

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

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

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

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

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

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

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

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

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the object and had the power and intention to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) “possessed an item,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the item and b) intentionally exercised control over that item.

Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of an item may be sole or joint, that is, two or more persons may possess a item.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to possession of a controlled substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence ofpossessed the controlled substance and exercised management, control, or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

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

Affirmative defense of permission. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).
It is a defense to the crime of Contraband in a County Detention Facility if the defendant used regular channels and was authorized by the sheriff or officer in charge of the detention facility to [introduce] [possess] [give] [receive] [take] [attempt to take or send] the contraband item [into] [from] the facility. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant used regular channels and had authorization from the sheriff or officer in charge of the detention facility, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not use regular channels or did not have authorization from the sheriff or officer in charge of the detention facility, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses

CONTRABAND IN COUNTY DETENTION FACILITIES — 951.22
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a Controlled Substance if a controlled substance is the contraband alleged 893.13(6) 25.7
Carrying a Concealed Firearm 790.01(2) 10.1
Carrying a Concealed Weapon 790.01(1) 10.1
Attempt 777.04(1) 5.1

Comment


This instruction was adopted in 1987 and amended in 1989 [543 So. 2d 1205], 2014 [153 So. 3d 192], 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.18 CONTRABAND IN JUVENILE [DETENTION FACILITY] [COMMITMENT PROGRAM]

§ 985.711, Fla. Stat.

To prove the crime of Contraband in Juvenile [Detention Facility] [Commitment Program], the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) had knowledge of the presence of an item.

      2. (Defendant)

Give as applicable.

          a. possessed an item while upon the grounds of a juvenile [detention facility] [commitment program].

          b. introduced the item into or upon the grounds of a juvenile [detention facility] [commitment program].

          c. [took] [attempted to take] [sent] [attempted to send] an item from a juvenile [detention facility] [commitment program].

          d. [transmitted] [attempted to transmit] an item to a juvenile offender into or upon the grounds of a juvenile [detention facility] [commitment program].

          e. [caused] [attempted to cause] an item to be [transmitted to] [received by] a juvenile offender upon the grounds of a juvenile [detention facility] [commitment program].

      3. The item was:

Give as applicable.

          a. an unauthorized article of [food] [clothing].

          b. a beverage that causes or may cause an intoxicating effect.

          c. a controlled substance. (Name of controlled substance alleged) is a controlled substance.

          d. a prescription or nonprescription drug that has a hypnotic, stimulating, or depressing effect.

          e. a firearm.

          f. a weapon of any kind.

          g. an explosive substance.

Definitions. Give as applicable.
§ 985.03(19), Fla. Stat.
A “juvenile detention facility” is a facility used pending court adjudication or disposition or execution of a court order for the temporary care of a child alleged or found to have committed a violation of law.

A “juvenile commitment program” is a facility used for the commitment of adjudicated delinquents.

“Introduce” means to put inside or into.

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Clothing” means things worn to cover the body and limbs.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).
A “weapon” is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if firearm is alleged. § 790.001(6), Fla. Stat.
“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]. [A destructive device is (insert definition in § 790.001(4), Fla. Stat..] [A “machine gun” is (insert definition in § 790.001(9), Fla. Stat..]

Give if possession is alleged.
There are two types of possession: actual possession and constructive possession.

Actual possession.
Actual possession means the person is aware of the presence of the object and

          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.

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

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

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

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

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

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

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

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

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

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

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the object and had the power and intention to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) “possessed an item,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the item and b) intentionally exercised control over that item.

Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of an item may be sole or joint, that is, two or more persons may possess a item.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to possession of a controlled substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership overpossessed the controlled substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

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

Affirmative defense of permission. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).
It is a defense to the crime of Contraband in Juvenile [Detention Facility] [Commitment Program] if the defendant was authorized through program policy or operating procedure or had the permission of the facility superintendent, program director, or manager of the [detention facility] [commitment program] to [possess] [introduce] [take] [attempt to take] [send] [attempt to send] [transmit] [attempt to transmit] [cause to transmit] [attempt to cause to transmit] the contraband item [into] [from] the facility. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant was authorized through program policy or operating procedure or had the permission of the facility superintendent, program director, or manager of the [detention facility] [commitment program], you should find [him] [her] not guilty of Contraband in a Juvenile [Detention Facility] [Commitment Program].

If the State proved beyond a reasonable doubt that the defendant did not have authorization through program policy or operating procedure or did not have the permission of the facility superintendent, program director, or manager of the [detention facility] [commitment program], you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses

CONTRABAND IN JUVENILE FACILITY — 985.4046
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
NonePossession of a Controlled Substance if a controlled substance is the contraband alleged
Attempt (although some attempts are included as elements) 777.04(1) 5.1

Comment


This instruction was adopted in March 2000 and amended in 2014 [153 So. 3d 192] , 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.19 UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY,
UTTERING OR POSSESSION OF COUNTERFEIT-RESISTANT
PRESCRIPTION BLANKS FOR CONTROLLED SUBSTANCES
§ 831.311, Fla. Stat.

To prove the crime of Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [altered] [delivered] [uttered]
[possessed] any counterfeit-resistant prescription blanks for
controlled substances.

2. The counterfeit-resistant prescription blanks for controlled
substances were in the form and content established by the
Department of Health pursuant to law.

3. (Defendant) intended [to injure or defraud any person] [to
facilitate (insert the alleged violation ofs.§ 893.13, Fla. Stat. as charged in the Information)].

Definitions. Give as applicable.
To “utter” means to pass, present or publish.

Possession.
To prove (defendant) “possessed counterfeit-resistant prescription blanks for controlled substances,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the prescription blanks and b) intentionally exercised control over them.

      Give if applicable.

Control can be exercised over prescription blanks whether they are carried on a person, near a person, or in a completely separate location. Mere proximity to prescription blanks does not establish that the person intentionally exercised control over them in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the prescription blanks or the present ability to direct their control by another.

      Joint possession. Give if applicable.

Possession of prescription blanks may be sole or joint, that is, two or more persons may possess prescription blanks.

Lesser Included Offenses
UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY, UTTERING OR POSSESSION OF COUNTERFEIT-RESISTANT PRESCRIPTION BLANKS FOR CONTROLLED SUBSTANCES —
831.311
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment s


The Department of Health is directed by section § 893.065, Florida Statutes Fla. Stat., to develop and adopt by rule the form and content for a counterfeit-resistant prescription blank which may be used by practitioners for the purpose of prescribing a controlled substance listed in Schedule II, Schedule III, or Schedule IV.

This instruction was adopted in 2009 [3 So. 3d 1172] and amended in 2018.

25.20 POSSESSION OF CONTRABAND [IN] [UPON THE GROUNDS OF] A STATE CORRECTIONAL INSTITUTION

§ 944.47(1)(c) Fla. Stat.

To prove the crime of Possession of Contraband [In] [Upon the Grounds of] a State Correctional Facility, the State must prove the following two elements beyond a reasonable doubt:

      1. (Defendant) possessed

Give as applicable.

          a. [written or recorded communication] [currency or coin] [an article of [food][clothing]] that was [given or transmitted] [intended to be given or transmitted] to an inmate of a state correctional institution.

          b. [an intoxicating beverage] [a beverage which causes or may cause an intoxicating effect.]

          c. a controlled substance. (Name of controlled substance) is a controlled substance.

          d. any prescription or non-prescription drug having a hypnotic, stimulating, or depressing effect.

          e. [a firearm] [a weapon of any kind] [an explosive substance].

          f. any [cellular telephone] [portable communication device] intentionally and unlawfully introduced inside the secure perimeter of the state correctional institution.

      2. At the time, (defendant) was [an inmate] [upon the grounds] of a state correctional facility.

Give in all cases. § 944.02(8), Fla. Stat.
“State correctional facility” means any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the Department of Corrections.

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Clothing” means things worn to cover the body and limbs.

Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Currency” means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).
A “weapon” is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if firearm is alleged. § 790.001(6), Fla. Stat.
“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]. [A destructive device is (insert definition in § 790.001(4), Fla. Stat. .] [A “machine gun” is (insert definition in § 790.001(9), Fla. Stat. .]

Give if portable communication device is alleged. § 944.47(1)(a)6, Fla. Stat.
The term “portable communication device” means any device carried, worn, or stored which is designed or intended to receive or transmit verbal or written messages, access or store data, or connect electronically to the Internet or any other electronic device and which allows communications in any form. Such devices include, but are not limited to, portable two-way pagers, hand-held radios, cellular telephones, Blackberry-type devices, personal digital assistants or PDA’s, laptop computers, or any components of these devices which are intended to be used to assemble such devices. The term also includes any new technology that is developed for similar purposes. [Excluded from this definition is any device having communication capabilities which has been approved or issued by the department for investigative or institutional security purposes or for conducting other state business.]

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

Actual possession.
Actual possession means the person is aware of the presence of the object and

          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.

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

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

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

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

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

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

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

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

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

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

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the object and had the power and intention to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant.
To prove (defendant) “possessed an item,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the item and b) intentionally exercised control over that item.

Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of an item may be sole or joint, that is, two or more persons may possess a item.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Possession of a Controlled Substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership overpossessed the controlled substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

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

Affirmative defense: Authorization. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).
It is a defense to the crime of Possession of Contraband [In] [Upon the Grounds of] a State Correctional Facility if the defendant was authorized by the officer in charge of the correctional institution to possess the item [in] [upon the grounds of] a state correctional institution. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant had authorization from the officer in charge of the correctional institution, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not have authorization from the officer in charge of the correctional institution, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses

POSSESSION OF CONTRABAND [IN] [UPON THE GROUNDS OF] A STATE CORRECTIONAL INSTITUTION — 944.47(1)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a Controlled Substance, if a controlled substance is the contraband alleged 893.13 25.7
Possession of a Firearm or a Concealed Weapon a Convicted Felon, if a firearm or concealed weapon is the contraband alleged and the possessor is an inmate. 790.23 10.15
Carrying a Concealed Firearm 790.01(2) 10.1
Carrying a Concealed Weapon 790.01(1) 10.1
Attempt 777.04(1) 5.1

Comment


This instruction was adopted in 2014 [153 So. 3d 192] and amended in 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.

25.21 [INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A STATE CORRECTIONAL INSTITUTION

§ 944.47(1)(a), Fla. Stat.

To prove the crime of [Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution, the State must prove the following [three] [four] elements beyond a reasonable doubt:

      1. (Defendant) [introduced into or upon the grounds of] [took] [attempted to [take] [send]] an item [into] [from] a state correctional institution.

      2. (Defendant) had knowledge of the presence of the item.

      3. The item was:

Give as applicable.

          a. a [written] [recorded] communication.

          b. [currency] [or] [coin].

          c. an article of [food] [clothing].

          d. an intoxicating beverage or a beverage which causes or may cause an intoxicating effect.

          e. a controlled substance. (Name of controlled substance) is a controlled substance.

          f. any prescription or nonprescription drug having a hypnotic, stimulating, or depressing effect.

          g. [a firearm] [a weapon of any kind] [an explosive substance].

          h. any [cellular telephone] [or] [portable communication device] intentionally and unlawfully introduced inside the secure perimeter of a state correctional institution].

Give element #4 if element #3a, 3b, or 3c is given.

      4. (Defendant) [gave or transmitted] [or] [intended to give or transmit] the [written communication] [recorded communication] [currency] [coin] [article of food] [article of clothing] to an inmate of the state correctional institution.

Give in all cases. State Correctional Facility. § 944.02(8), Fla. Stat.
“State correctional facility” means any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the Department of Corrections.

Give if firearm is alleged. § 790.001(6), Fla. Stat.
“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]. [A destructive device is (insert definition in § 790.001(4), Fla. Stat. .] [A “machine gun” is (insert definition in § 790.001(9), Fla. Stat. .]

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Clothing” means things worn to cover the body and limbs.

Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).
“Currency” means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).
A “weapon” is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if portable communication device is alleged. § 944.47(1)(a)(6), Fla. Stat.
“Portable communication device” means any device carried, worn, or stored which is designed or intended to receive or transmit verbal or written messages, access or store data, or connect electronically to the Internet or any other electronic device and which allows communications in any form. Such devices include, but are not limited to, portable two-way pagers, hand-held radios, cellular telephones, Blackberry-type devices, personal digital assistants or PDA’s, laptop computers, or any components of these devices which are intended to be used to assemble such devices. The term also includes any new technology that is developed for similar purposes. [Excluded from this definition is any device having communication capabilities which has been approved or issued by the department for investigative or institutional security purposes or for conducting other state business.]

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is a defense to this charge. Accordingly, the defendant is not guilty of this charge if [he] [she] did not know of the illicit nature of the controlled substance.

You are permittedmay but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership overpossessed the controlled substance.

To prove (defendant) “possessed a substance,” the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proven, you should find [him] [her] guilty.

If you have a reasonable doubt as to whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty.
Affirmative defense: Authorization. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).
It is a defense to the crime of [Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution if the defendant used regular channels and was authorized by the officer in charge of the correctional institution to [introduce] [take] [send] the item [into] [from] the state correctional institution. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant used regular channels and had authorization from the officer in charge of the correctional institution, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not use regular channels or did not have authorization from the officer in charge of the correctional institution, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses

[INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A STATE CORRECTIONAL INSTITUTION — 944.47(1)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a Controlled Substance, if a controlled substance is the contraband alleged 893.13 25.7
Possession of a Firearm or a Concealed Weapon a Convicted Felon, if a firearm or concealed weapon is the contraband alleged and the possessor is an inmate. 790.23 10.15
Carrying a Concealed Firearm 790.01(2) 10.1
Carrying a Concealed Weapon 790.01(1) 10.1

Comment


This instruction was adopted in 2014 [153 So. 3d 192] and amended in 2016 [191 So. 3d 291], and 2017 [216 So. 3d 497], and 2018.


News in Photos

Columns

The Mindful Lawyer

Mindfulness | Aug 23, 2021

The Mindful Lawyer: Resistance is Fertile

Mindfulness | Jul 21, 2021

How to deal with third-party lienholders in property damage cases

Columns | Jul 15, 2021

Mindfulness Without Meditation

Columns | Jun 21, 2021