In Re: Standard Jury Instructions in Criminal Cases

Background

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases proposed amendments to several Florida criminal jury instructions and sought the Court’s authorization for publication and use.
Proposed changes affected instructions 10.8 (threat involving destructive device), 14.4 (retail theft), 25.15(a) (retail sale of drug paraphernalia), and 28.11 (driving while license suspended with knowledge); instruction 10.4 was proposed for deletion.
The Court has constitutional jurisdiction to authorize jury instructions and reviewed the Committee’s submissions, noting some public defender and defense bar comments prompted further edits.
The Court agreed that instruction 10.4 did not correctly track section 790.07(4) and therefore deleted instruction 10.4 entirely.
Instruction 10.8 was revised to clarify the element is that the threat conveyed an intent to do bodily harm or property damage; actual ability, a real destructive device, or an actual intent to carry out the harm need not be proven.
Instruction 14.4 (retail theft) was updated from a two‑element to a four‑element formulation to conform to section 812.015(1) and (8) (including aggregation and $300 valuation rules); other instructions were also updated for clarity and statutory alignment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether instruction 10.4 should remain as drafted	Committee: existing instruction states prior conviction references are error and should be withheld from jury	Opposing view (implicit): instruction did not correctly reflect §790.07(4) offense elements	Court: delete instruction 10.4 because it does not pertain to §790.07(4)
Proper mens rea and proof requirements for threat to use destructive device (instruction 10.8)	Committee: clarify that the offense requires a conveyed intent to do harm or damage, not actual intent or capability	Defense commenters raised no objection to change	Court: authorize amended instruction 10.8 clarifying conveyed intent suffices; actual device, ability, or intent to carry out threat not required
Whether retail theft instruction (14.4) matches current statute	Committee: update instruction to reflect statute’s expanded elements, aggregation rules, and $300 threshold	Defense commenters suggested refinements; Committee revised accordingly	Court: authorize amended instruction 14.4 with four elements and statutory definitions/aggregation guidance
Treatment of prior violations/enhancements in instructions (25.15(a), 28.11)	Committee: caution that prior violations may enhance offense and that it is unclear whether prior violations are elements or sentencing factors; avoid informing jury of priors when treated as enhancements	Defense associations: pointed out procedural and proof issues (bifurcation, jury vs judge)	Court: authorize instructions but note unresolved legal questions about whether priors are elements or sentencing facts; instruct that allegations of priors should not be read to the jury and, if needed, be resolved in bifurcated proceeding

Key Cases Cited

State v. Harris, 356 So.2d 315 (Fla. 1978) (instructing jury on prior convictions is error; baseline rule for withholding prior-conviction allegations)
Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983) (threat conviction can be based on conveyed intent without proof of ability or actual device)
Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981) (same principle regarding conveyed intent for threat offenses)
State v. Harbaugh, 754 So.2d 691 (Fla. 2000) (discussing bifurcated proceedings for historical facts/enhancements and jury notification of priors)
Raulerson v. State, 763 So.2d 285 (Fla. 2000) (withhold of adjudication can constitute prior violation for enhancement)
F.T. v. State, 146 So.3d 1270 (Fla. 3d DCA 2014) (value for retail-theft under statute tied to price tag at time of theft)
Shaw v. State, 510 So.2d 349 (Fla. 2d DCA 1987) (definition-related guidance cited for retail theft)
State v. Tucker, 761 So.2d 1248 (Fla. 2d DCA 2000) (definition of ‘‘street or highway’’ and related driving concepts relied upon)