Florida Bar News

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:

3.3(b) – AGGRAVATION OF FELONY BY CARRYING A WEAPON

10.2 – CARRYING A CONCEALED [WEAPON] [FIREARM] IN A PROHIBITED PLACE

10.7(a) – POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
OR DISCHARGING A DESTRUCTIVE DEVICE

10.7(b) – POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR
DISCHARGING A DESTRUCTIVE DEVICE [WITH INTENT TO DO
[BODILY HARM] [PROPERTY DAMGE]] [RESULTING IN DISRUPTION
OF [GOVERNMENTAL OPERATIONS] [COMMERCE] [THE PRIVATE
AFFAIRS OF ANOTHER PERSON]]

10.7(c) – POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR
DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN [BODILY HARM
TO ANOTHER PERSON] [PROPERTY DAMAGE]

10.13 – SHOOTING OR THROWING A [MISSILE] [STONE] [HARD SUBSTANCE]
[AT] [WITHIN] [INTO] A[N] [BUILDING] [VEHICLE] [VESSEL]
[AIRCRAFT]

25.13(f) – [OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR [[TRAFFICKING
IN] [SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A
CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION]

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
PRESENT OR IN RESIDENCE)

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 January 15, 2019. The committee will review all comments received in response to the above proposals at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instructions, 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.

3.3(b) AGGRAVATION OF A FELONY(NAME OF FELONY)

If you find that (defendant) committed (felony, as identified by 775.087(1), Fla. Stat.) and you also find beyond a reasonable doubt that during the commission of the crime [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a weapon, you should find [him] [her] guilty of (felony) with a weapon.

Definition. Shepard v., State, — So. 3d – (Fla. 2018).
A “weapon” is legally defined to mean any object that could be used to cause death or inflict serious bodily harm. A “weapon” is defined as any object used or intended to be used to inflict harm on another.

If you find that (defendant) committed (felony, as identified in 775.087(1), Fla. Stat.) , but you are not convinced beyond a reasonable doubt that [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a weapon, then you should find [him] [her] guilty only of (felony) .

This instruction should not be given in conjunction with the instructions pertaining to any felony in which the use of a weapon or firearm is an essential element.

The requirement that the defendant personally carried, etc., the weapon comports with the holding in State v. Rodriguez , 602 So. 2d 1270 (Fla. 1992), that a defendant’s offense may not be reclassified for a codefendant’s possession of a firearm during a felony.

This instruction was adopted in 1981 and amended in 2011 [73 So. 3d 136], and 2019 .

To prove the crime of Carrying a Concealed [Weapon] [Firearm] in a Prohibited Place, the State must prove the following element beyond a reasonable doubt:

1. (Defendant) knowingly and willfully carried on or about [his] [her]
person [a concealed firearm] [a concealed weapon] in

Give as applicable.
a place of nuisance.
a police, sheriff, or highway patrol station.
a detention facility, prison, or jail.
a courthouse.
a courtroom.
a polling place.
a meeting of the governing body of a county, public school
district, municipality, or special district.
a meeting of the Legislature or a committee thereof.
a school, college, or professional athletic event not related to
firearms.
an elementary or secondary school facility or administration
building.
a career center.
any portion of an establishment licensed to dispense alcoholic
beverages for consumption on the premises, which portion of the
establishment is primarily devoted to such purpose.
a college or university facility.
the inside of the passenger terminal and sterile area of any
airport, provided that no person shall be prohibited from
carrying any legal firearm into the terminal, which firearm is
encased for shipment for purposes of checking such firearm as
baggage to be lawfully transported on any aircraft.
a place where the carrying of firearms is prohibited by federal
law.

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

Definitions. 790.001, Fla. Stat.
Define only applicable terms.
A “concealed firearm” means any firearm, which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person. A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun].

The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of another crime. An “antique firearm” is (insert definition in 790.001(1), Fla. Stat.

A “destructive device” is (insert definition in 790.001(4), Fla. Stat.

A “machine gun” means any firearm, which shoots, or is designed to shoot, automatically more than one shot, without manually reloading, by a single function of the trigger.

A “concealed weapon” means any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person. [A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.]

Give in all cases.
The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life.

A [firearm] [weapon] need not be completely hidden for you to find that it was concealed. However, a [firearm] [weapon] is not concealed if, although not fully exposed, its status as a [firearm] [weapon] is detectable by ordinary observation.

790.06(12), Fla. Stat. and this instruction apply in cases where the defendant is alleged to have carried a concealed weapon or firearm in a prohibited place, and where either the defendant has a license to carry a concealed firearm or weapon, or the State is unable to prove the absence of a license. If the State can prove that the defendant does not have a license, it is expected that the State would proceed under 790.01, Fla. Stat., in which case instruction 10.1 would apply.

If a “place of nuisance” is alleged, the court should adopt a definition from 823.05, Fla. Stat. Additional definitions might be appropriate depending on the prohibited place that is alleged.

There are exceptions for concealed weapons/firearms in courtrooms ( 790.06(12)(a)5., Fla. Stat.) and college/university facilities ( 790.06(12)(a)13., Fla. Stat.) which are likely to be treated as affirmative defenses. A special instruction will be needed if an exception is at issue.

This instruction was adopted in 2019.

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

(Defendant) willfully and unlawfully

[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place] [project]
[discharge]]

a destructive device.

Definition
A “ “ destructive device “ ” is defined as (adapt from 790.001(4), Fla._Stat., as required by the allegations) .

“Willfully” means intentionally, knowingly, and purposely.

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

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

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

No lesser included offenses have been identified for this offense.

This instruction was adopted in 1981 and was amended in 1989 , and 1992 , and 2019 .

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

• • 1. (Defendant)

willfully and unlawfully[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place] [project] [discharge]]

a destructive device.

Give those parts of paragraph element 2 as applicable.

• • 2.

a. The(Defendant’s) act was committed with the intent to
[do bodily harm to another person].
[do property damage].

b. The (Defendant’s) act resulted in

[a disruption of governmental operations].
[a disruption of commerce].
[a disruption of the private affairs of (victim)another
person].

Definition
A “ “ destructive device “ ” is defined as (adapt from 790.001(4), Fla._Stat., as required by the allegations) .

“Willfully” means intentionally, knowingly, and purposely.

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

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

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

POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE , ETC. — 790.161(2)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Possessing, throwing, making placing, projecting, or discharging destructive device		790.161(1)	10.7(a)
	Aggravated assault	784.021	8.2
	Assault	784.011	8.1

 

This instruction was adopted in 1992 and amended in 2019 .

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

• • 1. (Defendant)

willfully and unlawfully[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place] [project]
[discharge]] a destructive device.

• • 2.

The(Defendant’s) act resulted in[bodily harm to another person].
[property damage].

Definition
A “ “ destructive device “ ” is defined as (adapt from 790.001(4), Fla._Stat., as required by the allegations) .

“Willfully” means intentionally, knowingly, and purposely.

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

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

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

POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE RESULTING IN [BODILY HARM TO ANOTHER PERON] [PROPERTY DAMAGE] — 790.161(3)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
Possessing, throwing, making, placing, projecting, or discharging destructive device		790.161(1)	10.7(a)
	Possessing, throwing, making, placing, projecting, or discharging destructive device, etc.	790.161(2)	10.7(b)
	Aggravated assault	784.021	8.2
	Assault	784.011	8.1

 

This instruction was adopted in 1992 and amended in 2019 .

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

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

• • 1. (Defendant)

a. [shot] [or] [threw] a missile that would produce death or
great bodily harm.

b. hurled or projected a stone or other hard substance that
would produce death or great bodily harm.

c. shot a firearm that would produce death or
great bodily harm.

Give 2a–2f as applicable.

• • 2.

[He] [She] did so [at] [within] [into] [in]a. a public or private building, occupied or unoccupied.

b. a public or private bus, that was being used or occupied
by any person.

c. a train, locomotive, railway car, caboose, cable railway

car, street railway car, or monorail car that was being
used or occupied by any person.

d. a vehicle of any kind that was being used or occupied by
any person.

e. a boat, vessel, ship, or barge lying in or plying the
waters of this state.

f. an aircraft flying through the air space of this state.

• • 3.

The defendant’s act was done wantonly or maliciously.

State v. Kettell, 980 So. 2d 1061 (Fla. 2008).
“Wantonly” means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.

State v. Kettell, 980 So. 2d 1061 (Fla. 2008).
“Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Give if applicable. 790.001(6), Fla. Stat.
A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of another crime. An “antique firearm” is (insert definition in 790.001(1), Fla. Stat. ]

Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Give if applicable. Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984).
It is not necessary for the State to prove a defendant acted with malevolence toward a vehicle or structure itself if the State proved [he] [she] acted with a wanton or malicious attitude directed toward an individual within or near the vehicle or structure.

 

SHOOTING OR THROWING A [MISSILE] [STONE] [HARD SUBSTANCE[[AT] [WITHIN] [INTO] [IN] A[N] [BUILDING] [VEHICLE] [VESSEL] [AIRCRAFT] — 790.19
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempt	777.04(1)	5.1
	Criminal Mischief	806.13	12.4
	Discharging firearm in public	790.15	10.6

*According to the Fourth District Court of Appeal, 790.19, Fla. Stat., cannot be reclassified pursuant to 775.087(1), Fla. Stat. because the use of a weapon or a firearm is an essential element of the crime. Jefferson v. State , 927 So. 2d 1037 (4th DCA 2006). However, in Robertson v. State , 807 So. 2d 708 (Fla. 4th DCA 2002), the Fourth District also held it was proper to add 18 firearm points on the scoresheet because possession of a firearm is not an essential element of the crime. T he First District Court of Appeal held in Horn v. State , 677 So. 2d 320 (Fla. 1st DCA 1996), that the use of a firearm was a necessary element of shooting at an occupied vehicle in violation of 790.19, Fla. Stat . The Third District Court of Appeal has also held that the use of a firearm is a necessary element of shooting into an occupied vehicle. Jones v. Singletary , 621 So. 2d 760 (Fla. 3d DCA 1993).

Trial judges should therefore consider whether to instruct on element #1c based on the charging document and the evidence.

This instruction was adopted in 1981 and amended in 2018 [253 So. 3d 1024] and 2019.

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 [Ownership] [Lease] [Rental] 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)

[owned] [leased] [rented] any [place] [structure [or part thereof]] [conveyance].

2. At that 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 conclude 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.

If a person owns, leases, or rents 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 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. Attempted Trafficking in a Controlled Substance has a higher penalty than the crime in 893.1351(1), Fla. Stat., and therefore is not listed as a lesser – included offense below.

[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)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO.
None
	Attempted [Sale] [Manufacture] of a Controlled Substance	777.04(1) & 893.13	5.1 & 25.2 or 25.3
	Attempt	777.04(1)	5.1

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(1), 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), Florida Statutes, requires that the place will be used for certain drug-related activity while 893.1351(3), Florida Statutes, 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 [238 So. 3d 192] and amended in 2019 .

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 [place] [structure [or part thereof]] [conveyance].

Attempted Trafficking in a Controlled Substance has a higher penalty than the crime in 893.1351(2), Fla. Stat., and therefore is not listed as a lesser-included offense below.

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.
None
	[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)
	Attempted [Sale] [Manufacture] of a Controlled Substance	777.04(1) & 893.13	5.1 & 25.2 or 25.3
	Attempt	777.04(1)	5.1

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

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 2019.

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 [place] [structure] [conveyance].

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

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

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, Fla. Stat.

This instruction was adopted in 2019.