Standard Jury Instructions
William D. Matthewman, Miami, John H. Gutmacher, Orlando, Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, and Arthur I. Jacobs, General Counsel for Florida Prosecuting Attorneys Association, Fernandina Beach, Responding.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:
1. A revised Schedule of Lesser Included Offenses.1
2. A New Instruction on Duress or Necessity.
3. A Supplemental Instruction on Penalty Phase Proceedings.
4. An Amended Instruction on Entrapment.
5. An Amended Instruction on False Imprisonment.
6. Amended Instructions Relating to DUI.
7. A New Instruction on Sexual Activity with a Minor.
The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.
First, the word “intentionally” has been added to the first element in the Committee‘s proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term “police” in the definition of information to “law enforcement.” The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.
With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.
Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
APPENDIX
SCHEDULE OF LESSER INCLUDED OFFENSES
COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending on the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The court also directed that the appropriate
In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines: 1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See Ray v. State, 403 So.2d 956 (Fla.1981); State v. Carpenter, 417 So.2d 986 (Fla.1982).
2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, e.g., uttering, forgery, grand theft second degree, delivery of controlled substance.
3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under
F.S. 810.02 burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses.6. Under Knight v. State, 338 So.2d 201 (Fla.1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
| SECTION | CHARGED OFFENSE | CATEGORY 1 | CATEGORY 2 |
|---|---|---|---|
| 316.193(1) | Driving under the influence | None | Attempt |
| 316.193(2)(b) | Felony DUI prior convictions | None | Attempt |
| 316.193(3)(c)(1) | DUI with damage to property or person | DUI - 316.193(1) | None |
| 316.193(3)(c)(2) | DUI with serious bodily injury | DUI - 316.193(1) | DUI - 316.193(3)(c)(1) |
| 316.193(3)(c)(3) | DUI manslaughter | DUI - 316.193(1) | DUI serious bodily injury - 316.193(3)(c)(2) DUI damage to person or property - 316.193(3)(c)(1) Vehicular homicide - 782.071 |
| 550.361 | Bookmaking on grounds of permit holder (adapted from former 849.24) | None | Attempt |
| 782.04(1) | First degree (premeditated) murder | Second degree (depraved mind) murder - 782.04(2) Manslaughter - 782.07 | Second degree (felony) murder - 782.04(3) Third degree (felony murder) - 782.04(4) Vehicular homicide - 782.071 (Nonhomicide lessers) Attempt Culpable negligence - 784.05(2) Aggravated battery - 784.045 Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 |
| 782.04(1) | First degree (felony) murder | Second degree (depraved mind) murder - 782.04(2) Manslaughter - 782.07 | Second degree (felony) murder - 782.04(3) Third degree (felony) murder - 782.04(4) (Nonhomicide lessers) Aggravated battery - 784.045 Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 |
| 782.04(1)(a) & 777.04 | Attempted first degree (premeditated) murder | Attempt second degree (depraved mind) murder - 782.04(2) & 777.04 Attempt voluntary manslaughter - 782.07 & 777.04 | Aggravated assault - 784.021 Aggravated battery - 784.045 Assault - 784.011 Battery - 784.03 |
| 782.04(2) | Second degree (depraved mind) murder | Manslaughter - 782.07 | Third degree (felony) murder - 782.04(4) Vehicular homicide - 782.071 (Nonhomicide lessers) Attempt Culpable negligence - 784.05(2) Aggravated battery - 784.045 Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 |
| 782.04(3) | Second degree (felony) murder | None | Third degree (felony) murder - 782.04(4) |
| 782.051 | Felony causing bodily injury | None | Felony causing bodily injury - 782.051(2) Felony causing bodily injury - 782.051(3) |
| 782.04(4) | Third degree (felony murder) | None | Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 |
| 782.07 | Manslaughter | None | Vehicular homicide - 782.071 (Nonhomicide lessers) Attempt Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 Culpable negligence - 784.05(1) Culpable negligence - 784.05(2) |
| 782.071 | Vehicular Homicide | Reckless driving - 316.192 | Culpable negligence - 784.05(1) Culpable negligence - 784.05(2) |
| 784.011 | Assault | None | Attempt |
| 784.021(1)(a) | Aggravated assault | Assault - 784.011 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 Discharging firearms in public - 790.15 |
| 784.021(1)(b) | Aggravated assault | Assault - 784.011 | Attempt |
| 784.03 | Battery | None | Attempt |
| 784.045(1)(a)1 | Aggravated battery | Battery - 784.03 | Attempt |
| 784.045(1)(a)2 | Aggravated battery | Battery - 784.03 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 |
| 784.045(1)(b) | Aggravated battery | Battery - 784.03 | Attempt |
| 784.048(2) | Stalking | None | Attempt |
| 784.048(3) | Aggravated stalking | Stalking - 784.048(2) | Attempt Assault - 784.011 Improper exhibition of dangerous weapon - 790.10 |
| 784.048(4) | Aggravated stalking | Stalking - 784.048(2) | Attempt Violation of injunction for protection against domestic violence - 741.31(4) |
| 784.05(2) | Culpable negligence | Culpable negligence - 784.05(1) | None |
| 784.07(2) | Assault of law enforcement officer | Assault - 784.011 | Attempt |
| 784.07(2) | Battery of law enforcement officer | Battery - 784.03 | Attempt |
| 784.07(2)(c) | Aggravated assault on law enforcement officer | Aggravated assault - 784.021 Assault on law enforcement officer - 784.07(2)(a) Assault - 784.011 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 Discharging firearms in public - 790.15 |
| 784.07(2)(d) | Aggravated battery on law enforcement officer | Aggravated battery - 784.045 Battery on law enforcement officer - 784.07(2)(b) Battery - 784.03 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 Discharging firearms in public - 790.15 |
| 784.08(2)(a) | Aggravated battery on person 65 years of age or older | Aggravated battery - 784.045 Battery on person 65 years of age or older - 784.08(2)(c) Battery - 784.03 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 Discharging firearms in public - 790.15 |
| 784.08(2)(b) | Aggravated assault on person 65 years of age or older | Aggravated assault - 784.021 Assault on person 65 years of age or older - 784.08(2)(d) Assault - 784.011 | Attempt Improper exhibition of dangerous weapons or firearms - 790.10 |
| Discharging firearms in public - 790.15 | |||
| 784.08(2)(c) | Battery on person 65 years of age or older | Battery - 784.03 | Attempt |
| 784.08(2)(d) | Assault on person 65 years of age or older | Assault - 784.011 | Attempt |
| 787.01 | Kidnapping | False imprisonment - 787.02 | Attempt Aggravated assault - 784.021(1)(b) Battery - 784.03(1)(a) Assault - 784.011 |
| 787.02 | False imprisonment | None | Attempt Battery - 784.03(1)(a) Assault - 784.011 |
| 790.01(1) | Carrying concealed weapons | None | Attempt |
| 790.01(2) | Carrying concealed firearms | None | Attempt |
| 790.06 | Carrying pistol or repeating rifle without first obtaining license | None | Attempt |
| 790.07(1) | Persons engaged in criminal offense, having weapons | None | Attempt (may be applicable when concealed weapon is charged) Carrying concealed weapons - 790.01(1) Improper exhibition of dangerous weapons - 790.10 |
| 790.07(2) | Persons engaged in criminal offense, having weapons | None | Attempt (may be applicable when concealed firearm is charged) Carrying concealed firearm - 790.01(2) Improper exhibition of dangerous firearms - 790.10 |
| 790.10 | Improper exhibition of weapon | None | Attempt Assault - 784.011 |
| 790.15 | Discharging firearms in public | None | Attempt |
| 790.161(1) | Possessing, throwing, making, placing, projecting, or discharging destructive device | None | None |
| 790.161(2) | Possessing, throwing, making, placing, projecting, or discharging destructive device | Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(1) | Aggravated assault - 784.021 Assault - 784.011 |
| 790.161(3) | Possessing, throwing, making, placing, projecting, or discharging destructive device | Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(2) Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(1) | Possessing, throwing, making, placing, projecting, or discharging destructive device Aggravated assault - 784.021 Assault - 784.011 |
| 790.161(4) | Possessing, throwing, making, placing, projecting, or discharging destructive device | Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(2) Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(1) Possessing, throwing, making, placing, projecting, or discharging destructive device - 790.161(3) | Possessing, throwing, making, placing, projecting, or discharging destructive device Aggravated assault - 784.021 Assault - 784.011 |
| 790.162 | Threat to throw, project, place, or discharge any destructive device | None | Attempt Assault - 784.011 |
| 790.163 | False reports of bombing | None | None |
| 790.164 | False reports of bombing or arson to property owned by the State | None | Attempt False reports of bombing or other violence - 790.163 |
| 790.17 | Furnishing weapons to minors under 18 years of age, etc. | None | Attempt |
| 790.18 | Selling arms to minors by dealers | None | Attempt |
| 790.19 | Shooting or throwing missiles in dwelling | None | Attempt Discharging firearm in public - 790.15 |
| 790.221 | Possession of forbidden firearms | None | Attempt |
| 790.23 | Felons; possession of firearms unlawful; exception; penalty | None | Attempt (may be applicable when concealed weapon is charged) Carrying concealed firearm - 790.01(2) |
| 794.011(2)(a) | Sexual battery - victim under 12 | Sexual battery - 794.011(5) | Battery - 794.011(5) (b) Attempt Assault - 784.011 Aggravated assault - 784.021(1)(a) Aggravated battery - 784.045(1)(a) |
| 794.011(3) | Sexual battery - victim over 12 - weapon or force | Sexual battery-794.011(5) Sexual battery - 794.011(4) | Sexual battery - 794.011(2)(b) Battery - 784.03 Attempt Aggravated battery - 784.045(1)(a) Aggravated assault - 784.021(1)(a) Assault - 784.011 |
| 794.011(4) | Sexual battery-victim over 12 - special circumstances | Sexual battery-794.011(5) | Attempt Battery - 784.03 Aggravated assault - 784.021(1)(a) Assault - 784.011 |
| 794.011(5) | Sexual battery-victim over 12 - without force | Battery - 784.03 | Attempt |
| 800.02 | Unnatural and lascivious act | None | Attempt |
| 800.03 | Exposure of sexual organs | None | Unnatural and lascivious act - 800.02 |
| 800.04 | Lewd, lascivious, or indecent assault or act upon or in presence of child | None | Attempt Assault - 784.011 Battery - 784.03 Unnatural and lascivious act - 800.02 |
| 806.01(1) | Arson | Arson 806.01(2) | Attempt Criminal mischief - 806.13(1)(b)1 Criminal mischief - 806.13(1)(b)2 Criminal mischief - 806.13(1)(b)3 Criminal mischief - 806.13(2) |
| 806.111 | Arson - Fire bomb | None | Attempt |
| 806.13(1)(b)1 | Criminal mischief | None | Attempt |
| 806.13(1)(b)2 | Criminal mischief | Criminal mischief - 806.13(1)(b)1 | Attempt |
| 806.13(1)(b)3 | Criminal mischief | Criminal mischief - 806.13(1)(b)1 Criminal mischief - 806.13(1)(b)2 | Attempt |
| 810.02(2) | Burglary with assault or battery or while armed | Burglary - 810.02(4) Burglary - 810.02(3) | Aggravated battery - 784.03 Battery - 784.03 Aggravated assault - 784.021 Assault - 784.011 Attempt Trespass - 810.08(2)(a) Trespass - 810.08(2)(c) |
| 810.02(3) | Burglary of dwelling Burglary structure or conveyance with human being inside | Burglary - 810.02(4) | Attempt Burglary - 810.02(3) Trespass - 810.08(2)(a) Trespass - 810.08(2)(b) |
| 810.02(4) | Burglary | None | Attempt Trespass - 810.08(2)(a) |
| 810.06 | Possession of burglary tools | None | None |
| 810.08 | Trespass in structure or conveyance | None | Attempt (except refuse to depart) |
| 810.09 | Trespass on property other than structure or conveyance | None | Attempt |
| 812.014(2)(a) | Grand theft - first degree (property valued at $100,000 or more) | Grand theft - second degree - 812.014(2)(b) Grand theft - third degree - 812.014(2)(c)(1), (2), (3) Petit theft - first degree 812.014(2)(e) | Trade secrets - 812.081 Petit theft - second degree - 812.014(3)(a) |
| 812.014(2)(b) | Grand theft - second degree (property valued at $20,000 or more but less than $100,000 | Grand theft - third degree - 812.014(2)(c)(1), (2), (3) Petit theft-first degree 812.014(2)(e) | Trade secrets - 812.081 Petit theft - second degree 812.014(3)(a) |
| 812.014(2)(c) | Grand theft -third degree 812.014(2)(c)(6) | Petit theft -first degree 812.014(2)(e) | Trade secrets - 812.081 Trespass to conveyance - 812.014(2)(c)(6) Petit theft - second degree 812.014(3)(a) |
| 812.014(2)(d) | Grand theft third degree | None | Petit theft - second degree-812.014(3)(a) |
| 812.014(2)(e) | Petit theft - first degree | None | Petit theft - second degree - 812.014(3)(a) |
| 812.014(3)(b) | Petit theft | None | None |
| 812.014(3)(a) | Petit theft - second degree | None | None |
| 812.014(3)(c) | Felony Petit theft | None | Petit theft - first degree - 812.014(2)(e) Petit theft - 812.014(3)(b) Petit theft - second degree - 812.014(3)(a) |
| 812.016 | Possession of altered property | None | Attempt |
| 812.019(1) | Dealing in stolen property trafficking | None | Grand theft - third degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Petit theft - 812.014(3)(a) |
| 812.019(2) | Dealing in stolen property managing and trafficking | Dealing in stolen property - 812.019(1) | None |
| 812.13(2)(a) | Robbery with a firearm or deadly weapon | Robbery with a weapon - 812.13(2)(b) Robbery 812.13(2)(c) Petit theft - 812.014(3)(a) | Attempt Grand theft 1st degree - 812.014(2)(a) Grand theft 2d degree - 812.014(2)(b) Grand theft 3d degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Battery - 784.03 Aggravated battery - 784.045 Assault - 784.011 Aggravated assault - 784.021 Display of firearm - 790.07 Resisting a Merchant - 812.015(6) |
| 812.13(2)(b) | Robbery with a weapon | Robbery - 812.13(2)(c) Petit theft-812.014(3)(a) | Attempt Grand theft 1st degree - 812.014(2)(a) Grand theft 2d degree - 812.014(2)(b) Grand theft 3d degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Battery - 784.03 Aggravated battery - 784.045 Assault - 784.011 |
| Display of weapon - 790.07(1) Resisting a merchant - 812.015(6) | |||
| 812.13(2)(c) | Robbery | Petit theft-812.014(3)(a) | Attempt 812.013(2)(b) Grand theft 1st degree - 812.014(2)(a) Grand theft 2d degree - 812.014(2)(b) Grand theft 3d degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Battery - 784.03 Assault - 784.011 Aggravated assault - 784.021 Resisting a merchant - 812.015(6) |
| 812.135 | Home invasion robbery | Robbery - 812.13(2)(c) Petit theft-812.014(3)(a) | Petit theft - 812.014(2)(e) |
| 817.233 | Burning to defraud insurer | None | None |
| 817.563 | Sale of substance in place of a controlled substance | None | Attempt |
| 826.04 | Incest | None | Attempt |
| 827.03(1)(a) | Aggravated child abuse | None | Attempt child abuse - 827.04(1) Battery - 784.03 only under certain circumstances see Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987) |
| 827.03(1)(b) 827.03(1)(c) 827.03(1)(d) | Aggravated child abuse | None | Attempt Child abuse - 827.04(1) Battery - 784.03: only |
| 827.04(3) | Contributing to child delinquency or dependency or to child in need of services | None | Attempt |
| 827.071(2) | Sexual performance by a child | None | Attempt Sexual performance by a child - 827.071(5) |
| 827.071(3) | Sexual performance by a child | None | Attempt Sexual performance by a child - 827.071(5) |
| 827.071(4) | Sexual performance by a child | Sexual performance by a child - 827.071(5) | Attempt |
| 827.071(5) | Sexual performance by a child | None | Attempt |
| 831.01 | Forgery | None | Attempt |
| 831.02 | Uttering forged instrument | None | None |
| 832.04 | Stopping payment; purchase of farm or grove products | None | Attempt, except when uttering is charged - 832.04 under $150 |
| 832.041 | Stopping payment with intent to defraud | None | Attempt, except when uttering is charged 832.04 if farm or grove product 832.041 under $150 Worthless check - 832.05(2) (first degree misdemeanor) |
| 832.05(2) | Worthless checks under $150 | None | Attempt, except when uttering is charged 832.05(2) |
| 832.05(4) | Obtaining property by worthless checks | Worthless check-832.05(2) | Attempt |
| 837.012 | Perjury not in official proceeding | None | None |
| 837.02 | Perjury in official proceeding | None | None |
| 837.021 | Perjury by contradictory statements | None | None |
| 837.05 | False reports to law enforcement authorities | None | None |
| 837.06 | False official statements | None | None |
| 838.015(1) | Bribery of public servant | None | Attempt if only “give” is charged |
| 838.015 | Bribery | None | Attempt if only “accept” is charged |
| 838.016(1) | Bribery by a public servant | None | Attempt if only “give” or “accept” is charged |
| 838.016 | Unlawful compensation for official behavior | None | Attempt if only “give” or “accept” is charged |
| 838.021 | Corruption by threat against public servant | None | Attempt if only harm is charged |
| 838.12(1) | Bribery in athletic contests | None | Attempt if only give is charged |
| 838.12(2) | Bribery in athletic contests | None | Attempt if only accept is charged |
| 843.01 | Resisting officer with violence | None | Resisting officer without violence - 843.02 |
| 843.02 | Resisting officer without violence | None | Attempt |
| 849.01 | Keeping gambling house | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(k) |
| Lottery - 849.11 | |||
| 849.01 (849.02) | Maintaining a gambling establishment | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(k) Lottery - 894.11 |
| 849.01 (849.02) | Permitting gambling | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(k) Lottery - 849.11 |
| 849.02 | Agents, servants, etc., of keeper of gambling house | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(k) |
| 849.02 | Renting house for gambling purposes | None | None |
| 849.03 | Renting space for gambling | None | None |
| 849.04 | Permitting minors and persons under guardianship to gamble | None | Permitting gambling on billiard or pool table by holder of license - 849.07 Playing at games of chance by lot - 849.11 |
| 849.08 | Gambling | None | None |
| 849.09(1)(a) | Lottery | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Playing at game of chance by lot - 849.11 Gambling devices, etc. - 849.231 |
| 849.09(1)(b) | Lottery | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Gambling devices, etc. - 849.231 |
| 849.09(1)(c) | Lottery | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Gambling devices, etc. - 849.231 |
| 849.09(1)(d) | Lottery | None | Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) |
| Playing at games of chance by lot - 849.11 Gambling devices, etc. - 849.231 | |||
| 849.09(1)(g) | Lottery | None | None |
| 849.09(1)(h) | Lottery | None | None |
| 849.09(1)(k) | Lottery | None | None |
| 849.14 | Betting | None | None |
| 849.25 (1) and (2) | Bookmaking | None | Attempt |
| 893.13(1)(a) | Sale, manufacture, delivery or possession with intent to sell, manufacture or deliver controlled substance | None | Attempt, except when delivery is charged 893.13(3) if delivery of cannabis is charged; 893.13(6)(b) if possession of cannabis is charged; 893.13(6)(a) - if possession is charged and offense would be a second degree felony under 893.13(1)(a)1. |
| 893.13(1)(b) | Sale or delivery or possession of more than 10 grams of controlled substance | Sale or delivery of controlled substance - 893.13(1)(a) | Attempt, except when delivery is charged 893.13(6)(a) if possession is charged |
| 893.13(1)(c) | Sale, manufacture, delivery, etc. near public or private elementary, middle, or secondary school | Sale, manufacture, delivery, etc. - 893.13(1)(a) | Attempt, except when delivery is charged; 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(1)(a); 893.13(6)(b) if possession of cannabis is charged; 893.13(3) if delivery of cannabis is charged |
| 893.13(1)(d) | Sale, manufacture delivery, etc. near a college, university, other post-secondary educational institution or public park | Sale, manufacture, delivery, etc. - 893.13(1)(a) | Attempt, except when delivery is charged; 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(1)(a)1; 893.13(6)(b) if possession of cannabis is charged; 893.13(3) if delivery of cannabis is charged. |
| 893.13(2)(a) | Purchase or possession with intent to purchase controlled substance | None | Attempt; possession 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(2)(a)1 893.13(6)(b) if possession of cannabis is charged |
| 893.13(2)(b) | Purchase in excess of 10 grams of a controlled substance | 893.13(2)(a) purchase less than 10 grams | Attempt |
| 893.13(3) | Delivery without consideration not more than 20 grams of cannabis | None | None |
| 893.13(4) | Delivery of controlled substance to person under 18 years old, etc. | None | 893.13(1)(a); 893.13(3) if delivery of cannabis is charged. |
| 893.13(5) | Bringing controlled substance into state | None | Attempt; 893.13(6)(a); 893.14(3) if delivery of cannabis charged; 893.13(6)(b) if possession of cannabis charged. |
| 893.13(6)(a) | Possession of controlled substance | None | Attempt; 893.13(3) if delivery of cannabis stance charged; 893.13(6)(b) if possession of cannabis charged. |
| 893.13(6)(b) | Possession of not more than 20 grams of cannabis | None | Attempt |
| 893.13(6)(c) | Possession in excess of 10 grams of controlled substance | Possession of less than 10 grams 893.13(6)(a) | Attempt 893.13(6)(b) if possession of cannabis charged; |
| 893.13(7)(a) 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 | Distribute or dispense a controlled substance, etc. | None | Attempt |
| 893.13(7)(a) 9 | Obtaining controlled substances by fraud | None | None |
| 893.135(1)(a) 1 and 2 | Trafficking in cannabis | Trafficking offenses requiring lower quantities of cannabis-893.135(1)(a) | Attempt, (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged 893.13(2)(a) - if purchase is charged Bringing cannabis into state - 893.13(5) Possession of cannabis - 893.13(6)(a) - 893.13(6)(b) if less than 20 grams of cannabis Delivery of less than 20 grams of cannabis - 893.13(3) |
| 893.135(1)(b) 1&2 | Trafficking in cocaine | Trafficking offenses requiring lower quantities of cocaine 893.135(1)(b)1 | Attempt (but not conspiracy), except when delivery is charged; 893.13(1)(a) if sale, manufacture or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing cocaine into state 893.13(5); Possession of cocaine 893.13(6)(a). |
| 893.135(1)(c) 1&2 | Trafficking in illegal drugs | Trafficking offenses requiring lower quantities of illegal drugs - 893.135(1)(c)1 | Attempt (but not conspiracy), except when delivery is charged; 893.13(1)(a) if sale, manufacture or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing same illegal drug as charged into state - 893.13(5) Possession of same illegal drug - 893.13(6)(a). |
| 893.135(1)(d) 1 a. and b. | Trafficking in phencyclidine | Trafficking offenses requiring lower quantities of phencyclidine - 892.135(1)(d)1. | Attempt (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged 893.13(2)(a) - if purchase is charged; Bringing phencyclidine into state - 893.13(5); Possession of phencyclidine - 893.13(6)(a) |
| 893.135(1)(e)1.a and b. | Trafficking in methaqualone | Trafficking offenses requiring lower quantities of methaqualone - 893.135(1)(e)1. | Attempt (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged 893.13(2)(a) - if purchase is charged Bringing methaqualone into state - 893.13(5) Possession of methaqualone - 893.13(6)(a) |
| 893.135(1)(f)1 a&b | Trafficking in amphetamine | Trafficking offenses requiring lower quantities of amphetamine - 893.135(1)(f)1 | Attempt (but not conspiracy), except when delivery is charged; 893.13(1)(a) - if sale, manufacture or delivery is charged; 893.13(2)(a) - if purchase is charged; Bringing amphetamine into state - 893.13(5); Possession of amphetamine - 893.13(6)(a) |
| 893.147(1) | Possession of drug paraphernalia | None | Attempt |
| 893.147(2) | Delivery, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia | None | Attempt, except when delivery is charged. |
| 893.147(3) | Delivery of drug paraphernalia to a minor | None | None |
| 893.147(4) | Advertisement of drug paraphernalia | None | None |
| 893.149 | Unlawful possession, etc., of listed chemical | None | Attempt |
| 895.03(1) | RICO - Use or investment of proceeds from pattern of racketeering activity | None | None |
| 895.03(1) | RICO - Use or investment of proceeds from collection of unlawful debt | None | None |
| 895.03(2) | RICO - Acquisition or maintenance through pattern of racketeering activity | None | None |
| 895.03(2) | RICO - Acquisition or maintenance through collection of unlawful debt | None | None |
| 895.03(3) | RICO - Conduct or participation in an enterprise through collection of unlawful debt | None | None |
| 895.03(3) | RICO - Conduct or participation in an enterprise through a pattern of racketeering activity | None | None |
| 895.03(4) | Conspiracy to engage in pattern of racketeering activity | None | None |
| 944.40 | Escape | None | None |
| 944.47 | Contraband in state correctional institution | None | Possession of less than 20 grams cannabis - 893.13(6)(b) |
| 951.22 | Contraband in county detention facilities | None | Possession of less than 20 grams cannabis - 893.13(6)(b) |
DURESS OR NECESSITY
An issue in this case is whether (defendant) acted out of [duress][necessity] in committing the crime of (crime charged) (lesser included offenses). It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity].
In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress][necessity], you must find the following six elements:
- the defendant reasonably believed [a danger][an emergency] existed which was not intentionally caused by [himself][herself].
-
2(a). the [danger][emergency] threatened significant harm to [himself][herself][a third person].
(or)
2(b). the [danger][emergency] threatened death or serious bodily injury. (Give 2(b) if escape charged)
- The threatened harm must have been real, imminent and impending.
-
4(a). the defendant had no reasonable means to avoid the [danger][emergency] except by committing the (crime charged) (lesser included offenses). (Give 4(a) if escape not charged)
Note to Judge: If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So. 2d 374 (Fla. 3d DCA 1984) and Alcantaro v. State, 407 So. 2d 922 (Fla. 1st DCA 1981) and if so, give 4b.
4(b). the defendant left [the place of [his][her] confinement][the vehicle in which [he][she] was being transported] [to][from][his][her] work on a public road] because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
- the (crime charged) (lesser included offenses) must have been committed out of [duress][necessity] to avoid the [danger][emergency].
- The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).
“Imminent and impending” means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress][necessity] if [he][she] committed the crime after the danger from the threatened harm had passed.
The reasonableness of the defendant‘s belief that [a danger][an emergency] existed should be examined in the light of all the evidence. In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed.
The [danger][emergency] facing the defendant need not have been actual; however to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger][emergency] was real.
If you find from the evidence that the defendant committed the (crime charged) (lesser included offenses) out of [duress][necessity], you should find the defendant not guilty. However if you find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress][necessity] you should find the defendant guilty if all the elements of the charge have been proved.
Note to Judge: Duress is not a defense to an intentional homicide. See Wright v. State, 402 So. 2d 193 (Fla. 3d DCA 1981).
PENALTY PROCEEDINGS-CAPITAL CASES
After the first paragraph on page 114 of the manual, the following additional language is proposed:
Note to Judge: Give before a new penalty phase jury
[A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to disregard an aggravating circumstance if you have an abiding conviction that it exists. On the other hand, if, after carefully considering, comparing and weighing all the evidence, you do not have an abiding conviction that the aggravating circumstance exists, or if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the aggravating circumstance has not been proved beyond a reasonable doubt and you should disregard it, because the doubt is reasonable. It is to the evidence introduced in this proceeding, and to it alone, that you are to look for that proof.
A reasonable doubt as to the existence of an aggravating circumstance may arise from the evidence, conflicts in the evidence or the lack of evidence. If you have a reasonable doubt as to the existence of an aggravating circumstance, you should find that it does not exist. However, if you have no reasonable doubt, you should find that the aggravating circumstance does exist and give it whatever weight you feel it should receive.]
3.04(c)(2) ENTRAPMENT
Note to Judge: This instruction is to be used for offenses occurring on or after October 1, 1987.
The defense of entrapment has been raised. (Defendant) was entrapped if
- [he] [she] was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of (crime charged), and
- [he] [she] engaged in such conduct as the direct result of such inducement or encouragement, and
- the person who induced or encouraged [him] [her] was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and
- the person who induced or encouraged [him] [her] employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and
- (defendant) was not a person who was ready to commit the crime.
When claim of entrapment no defense
It is not entrapment if (defendant) had the predisposition to commit the (crime charged). (Defendant) had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant), [he] [she] had a readiness or willingness to commit (crime charged) if the opportunity presented itself.
When claim of entrapment no defense
It is also not entrapment merely because a law enforcement officer in a good faith attempt to detect crime
(Give a, b, or c as applicable)
- [provided the defendant the opportunity, means and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.]
- [used tricks, decoys or subterfuge to expose the defendant‘s criminal acts.]
- [was present and pretending to aid or assist in the commission of the offense.]
On the issue of entrapment, the defendant must prove to you by a preponderance the greater weight of the evidence that his criminal conduct occurred as the result of entrapment. a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt
An informant is an agent of law enforcement for purposes of the entrapment defense. (Give if applicable)
If you find that the defendant was entrapped, you should find the defendant not guilty of (crime charged). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved.
Note to Judge: This instruction should be given only if there is some evidence of the defendant‘s lack of predisposition to commit the crime. See Munoz v. State, 629 So.2d 90 (Fla. 1993).
FALSE IMPRISONMENT
F.S. 787.02
Before you can find the defendant guilty of False Imprisonment, the State must prove the following three two elements beyond a reasonable doubt:
Elements
- (Defendant) [forcibly] [secretly] [by threat] [confined] [abducted] [imprisoned] [restrained] (victim) against [his] [her] will.
- (Defendant) had no lawful authority.
(Defendant) acted for any purpose other than to:
(Give (a), (b), (c) or (d) as applicable)
a. hold for ransom or reward or as a shield or hostage.
b. commit or facilitate commission of any felony,
c. inflict bodily harm upon or to terrorize the victim or another person.
d. interfere with the performance of any governmental or political function.
Confinement of a child under the age of thirteen (13) 13 is confinement against [his] [her] will if such confinement is without the consent of [his] [her] parent or legal guardian. (Read only if confinement is alleged and child is under thirteen years of age.)
FELONY DUI-PRIOR CONVICTIONS
F.S. 316.193(2)(b)
Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt:
Elements
- (Defendant) drove or was in actual physical control of a vehicle.
- While driving or in actual physical control of the vehicle, (defendant)
(Give 2a or 2b as applicable)
a. [was under the influence of [alcoholic beverages] and/or [a chemical substance] [a controlled substance] to
the extent that [his] [her] normal faculties were impaired.] or
b. [had a blood or breath alcohol level of0.100.08 percent or higher.]
Definitions; give as applicable
“Vehicle” is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.
“Normal faculties” mean those faculties of a person, such as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.
( ) is a chemical substance under Florida law.
( ) is a controlled substance under Florida law.
Note to Judge: In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by
- (2)(a) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired.
- (2)(b) If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or,
- (2)(c) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired.
Defense of inoperability; give if applicable
It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable.
FELONY DUI- SERIOUS BODILY INJURY
F.S. 316.193(3)(c)(2)
Before you can find the defendant guilty of DUI with Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt:
Elements
- (Defendant) drove or was in actual physical control of a vehicle.
- While driving or while in actual physical control of the vehicle, (defendant)
(Give 2a or 2b as applicable)
a. [was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.] or
b. [had a blood or breath alcohol level of0.100.08 percent or higher.]
- As a result (defendant) caused serious bodily injury to (victim).
Definitions; give as applicable
“Vehicle” is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.
“Normal faculties” mean those faculties of a person, such as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.
“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.
( ) is a chemical substance under Florida law.
( ) is a controlled substance under Florida law.
“Serious bodily injury” means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Note to Judge: In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by
(2)(a) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. - (2)(b) If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or
- (2)(c) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired.
Defense of inoperability; give if applicable
It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable. However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt.
DUI MANSLAUGHTER
F.S. 316.193(3)(c)3
Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt:
Elements
- (Defendant)
operateddrove or was in actual physical control of a vehicle. (Defendant), by reason of such operation, caused or contributed to the cause of the death of (victim).While driving or while in actual physical control of the vehicle, (defendant) (See Magaw v. State, 537 So.2d 564 (Fla. 1989))
(Give 2(a) or 2(b) as applicable)
a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired, or
b. had a blood or breath alcohol level of 0.08 or higher.
At the time of such operation(defendant)As a result, (defendant) caused or contributed to the cause of the death of (victim). (See Magaw v. State, 537 So.2d 564 (Fla. 1989))
(Give 3a and 3b as applicable)
a.
[was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] tothe extent that [his] [her] normal faculties were impaired.]
b.[had a blood or breath alcohol level of 0.10 percent or higher.]
Definitions; give as applicable
“Vehicle” is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.
“Normal faculties” mean those faculties of a person such as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.
( ) is a chemical substance under Florida law.
( ) is a controlled substance under Florida law.
Note to Judge: In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by
- (2)(a) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired.
- (2)(b) If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or,
- (2)(c) If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired.
Defense of inoperability; give if applicable
It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable, However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable.
UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS
F.S. 794.05 [NEW]
Before you can find the defendant guilty of sexual activity with a minor, the State must prove the following three elements beyond a reasonable doubt:
Elements
- (Victim) was 16 or 17 years of age.
- (Defendant) was age 24 or older.
- [(Defendant) engaged in sexual activity with a minor in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].
Sexual activity does not include an act done for a bona fide medical purpose. (Give if applicable)