In Re: Standard Jury Instructions in Criminal Cases – Report 2016-04 , 206 So. 3d 14 ( 2016 )

Supreme Court of Florida
____________
No. SC16-1183
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2016-04.
[December 8, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing amendments to seven existing
standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
The Committee proposes amending existing instructions 3.3(a) (Aggravation
of a Felony by Carrying a Firearm); 3.3(b) (Aggravation of a Felony by Carrying a
Weapon Other Than a Firearm); 3.3(f) (Aggravation of a Crime by Selecting a
Victim Based on Prejudice); 3.6(c) (Psychotropic Medication); 8.18 (Violation of
an Injunction for Protection Against Domestic Violence); 8.19 (Violation of an
Injunction for Protection Against [Repeat] [Sexual] [Dating] Violence); and 8.24
(Violation of an Injunction for Protection Against [Stalking] [Cyberstalking]).
Before filing its report with the Court, the Committee published its proposals
for comments. The Committee received comments from the Florida Association of
Criminal Defense Lawyers, the Florida Public Defender Association, and Gerry
Rose. The Committee altered several of its proposals upon consideration of the
comments. The Court did not publish the Committee’s amended proposals for
comment.
Having considered the Committee’s report and the comments received by
the Committee, we authorize for publication and use amended instructions 3.3(f),
3.6(c), 8.18, 8.19, and 8.24 as proposed. We, however, decline to authorize
amended instructions 3.3(a) and 3.3(b) at this time.
Accordingly, the instructions, as set forth in the appendix to this opinion, are
authorized for publication and use.1 In authorizing the publication and use of these
instructions, we express no opinion on their correctness and remind all interested
parties that this authorization forecloses neither requesting additional or alternative
instructions nor contesting the legal correctness of the instructions. We further
1. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
-2-
caution all interested parties that any comments associated with the instructions
reflect only the opinion of the Committee and are not necessarily indicative of the
views of this Court as to their correctness or applicability. New language is
indicated by underlining and deleted language is indicated by struck-through type.
The instructions as set forth in the appendix shall be effective when this opinion
becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Barton Neil
Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee,
Florida,
for Petitioner
-3-
Appendix
3.3(f) AGGRAVATION OF A CRIME BY SELECTING A VICTIM BASED
ON PREJUDICE
§ 775.085, Fla. Stat. and § 775.0863, Fla. Stat.
If you find that (defendant) committed (crime charged or a lesser included
crime) and you also find beyond a reasonable doubt that (defendant)
1. perceived, knew, or had reasonable ground to perceive or know
(victim’s) [race] [color] [ancestry] [ethnicity] [religion] [sexual
orientation] [national origin] [homeless status] [mental or physical
disability] [advanced age], and
2. intentionally selected (victim) because of that perception or
knowledge,
then you should find the defendant(defendant) guilty of (crime charged or lesser
included crime) aggravated by the intentional selection of the victim(victim)
based on prejudice.
If you find that the defendant(defendant) committed (crime charged or a
lesser included crime) beyond a reasonable doubt, but you are not convinced
beyond a reasonable doubt that [he] [she] did so by intentionally selecting the
victim (victim) based on prejudice, then you should find the defendant[him]
[her] guilty of only (crime charged or a lesser included crime).
Definitions. Give if applicable.
§ 775.0863(1)(b), Fla. Stat.
“Mental or physical disability” means that the victim suffers from a
condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, and has one or more
physical or mental limitations that restrict the victim’sperson’s ability to
perform the normal activities of daily living.
§ 775.085(1)(b)1, Fla. Stat.
“Advanced age” means that the victimperson is older than 65 years of
age.
-4-
§ 775.085(1)(b)2, Fla. Stat.
“Homeless status” means the victimperson lacks a fixed, regular, and
adequate nighttime residence; or has a primary nighttime residence that is
either (1) a supervised publicly or privately operated shelter designed to
provide temporary living accommodations or (2) a public or private place not
designed for, or ordinarily used as, a regular sleeping accommodation for
human beings.
Comments
Proof that the defendant intentionally selected the victim is required by State
v. Stalder, 630 So. 2d 1072 (Fla. 1994).
This instruction was adopted in 1997 [697 So. 2d 84] and amended in 2000
[765 So. 2d 692], and 2007 [965 So. 2d 811], and 2011 [73 So. 3d 136], and 2016.
3.6(c) INSANITY — PSYCHOTROPIC MEDICATION
Give, If the defendant’s ability to proceed to trial is dependent on the use of
pyschotropic medication, give if requested by defendantthe defense, at the
beginning of the trial and in the charge to the jury. See Fla. R. Crim P. 3.215(c).
(Defendant) currently is being administered psychotropic medication
under medical supervision for a mental or emotional condition.
Psychotropic medication is any drug or compound affecting the mind,
or behavior, intellectual functions, perception, moods, or emotion and
includes anti-psychotic, anti-depressant, anti-manic, and anti-anxiety drugs.
You shall not allow the defendant’s present condition in court or any
apparent side effect from the medication that you may have observed in court
to affect your deliberations.
Comment
This instruction was adopted in June1994 [636 So. 2d 502] and amended in
2016.
-5-
8.18 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST
DOMESTIC VIOLENCEINJUNCTION
§ 741.31(4)(a), Fla. Stat.
To prove the crime of Violation of an Injunction for Protection Against
Domestic ViolenceInjunction, the State must prove the following two elements
beyond a reasonable doubt:
1. A temporary or final injunction for protection against domestic
violence was issued by a court against (defendant) for the benefit
of (victim).
2. (Defendant) willfully violated the injunction by (alleged violation of
section 741.31(4)(a)).
Definition.
“Willfully” means knowingly, intentionally, and purposely.
If the allegation involves the defendant committing an act of domestic
violence, define “domestic violence” from § 741.28(2), Fla. Stat.
Give if applicable if the jury finds the defendant guilty of Violation of
Domestic Violence Injunction. § 741.31(4)(c), Fla. Stat.
Now that you have found the defendant guilty of Violation of Domestic
Violence Injunction, you must further determine whether the State has
proven beyond a reasonable doubt that the defendant was previously
convicted two times or more of Violation of an Injunction against the same
person.
“Conviction” means a determination of guilt which is the result of a plea
or a trial, regardless of whether adjudication is withheld or a plea of nolo
contendere is entered.
Lesser Included Offenses
VIOLATION OF DOMESTIC VIOLENCE INJUNCTION — 741.31
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
-6-
Comments
This instruction can be used for the Violation of a Domestic Violence
Injunction based on prior convictions. For Felony Violation of a Domestic
Violence Injunction based on prior convictions, it is error to inform the jury of
prior Violation of Injunction convictions until the verdict on the underlying
Violation of a Domestic Violence Injunction is rendered. Therefore, if the
information or indictment contains an allegation of prior Violation of Injunction
convictions, do not read that allegation and do not send the information or
indictment into the jury room. If the defendant is found guilty of Violation of a
Domestic Violence Injunction, the historical fact of prior convictions shall be
determined separately by the jury in a bifurcated proceeding. See State v.
Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August
30, 2007965 So. 2d 811] and amended in 2016.
8.19 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST
[REPEAT]VIOLENCE[SEXUAL]VIOLENCE, OR [DATING]
VIOLENCEINJUNCTION
§ 784.047, Fla. Stat.
To prove the crime of Violation of an Injunction for Protection Against
[Repeat] [Sexual] [Dating] ViolenceInjunction, the State must prove the
following two elements beyond a reasonable doubt:
1. An injunction for protection against [repeat] [sexual] [dating]
violence was issued by a court against (defendant) for the benefit
of (victim).
2. (Defendant) willfully violated the injunction by (alleged violation of
section 784.047).
Definition.
“Willfully” means knowingly, intentionally, and purposely.
If the allegation involves the defendant committing an act of repeat, sexual,
or dating violence against the victim, give the appropriate definitions of
“violence,” “repeat violence,” and/or “dating violence” from § 784.046(1), Fla.
Stat., and the elements of any appropriate crime(s) supported by the evidence.
-7-
Give if applicable if the jury finds the defendant guilty of Violation of a
[Repeat][Sexual][Dating] Violence Injunction. § 784.047(2), Fla. Stat.
Now that you have found the defendant guilty of Violation of a [Repeat]
[Sexual] [Dating] Violence Injunction, you must further determine whether
the State has proven beyond a reasonable doubt that the defendant was
previously convicted two times or more of Violation of an Injunction against
the same person.
“Conviction” means a determination of guilt which is the result of a plea
or a trial, regardless of whether adjudication is withheld or a plea of nolo
contendere is entered.
Lesser Included Offenses
VIOLATION OF REPEAT VIOLENCE, SEXUAL VIOLENCE, OR
DATING VIOLENCE INJUNCTION – 784.047
CATEGORY CATEGORY FLA. STAT INS. NO.
ONE TWO
None
Attempt 777.04(1) 5.1
Comments
This instruction can be used for Violation of a [Repeat] [Sexual] [Dating]
Violence Injunction based on prior convictions. For Felony Violation of a [Repeat]
[Sexual] [Dating] Violence Injunction based on prior convictions, it is error to
inform the jury of prior Violation of Injunction convictions until the verdict on the
underlying Violation of a [Repeat] [Sexual] [Dating] Violence Injunction is
rendered. Therefore, if the information or indictment contains an allegation of prior
Violation of Injunction convictions, do not read that allegation and do not send the
information or indictment into the jury room. If the defendant is found guilty of
Violation of a [Repeat] [Sexual] [Dating] Violence Injunction, the historical fact of
prior convictions shall be determined separately by the jury in a bifurcated
proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2007 [SC07-325, Corrected Opinion, August
30, 2007965 So. 2d 811] and amended in 2016.
-8-
8.24 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST
[STALKING] [CYBERSTALKING]
§ 784.0487(4), Fla. Stat.
To prove the crime of Violation of an Injunction for Protection Against
[Stalking] [Cyberstalking], the State must prove the following two elements
beyond a reasonable doubt:
1. An injunction for protection against [stalking] [cyberstalking] was
issued by a court against (defendant) for the benefit of (victim).
2. (Defendant) willfully violated the injunction by:
Give as alleged.
a. going to, or being within 500 feet of, the
petitioner’s(victim’s) residence, school, place of
employment, or a specified place frequented regularly by
the petitioner(victim) and any named family members or
individuals closely associated with the petitioner(victim).
b. committing an act of stalking against the petitioner(victim).
c. committing any other violation of the injunction through an
intentional unlawful threat, word, or act to do violence to
the petitioner(victim).
d. telephoning, contacting, or otherwise communicating with
the petitioner(victim), directly or indirectly, unless the
injunction specifically allows indirect contact through a
third party.
e. knowingly and intentionally coming within 100 feet of the
petitioner’s(victim’s) motor vehicle, whether or not that
vehicle is occupied.
f. destroying the petitioner’s(victim’s) personal property,
including the petitioner’s(victim’s) motor vehicle.
g. refusing to surrender firearms or ammunition if ordered to
do so by the court.
-9-
Definition.
Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
“Willfully” means knowingly, intentionally, and purposely.
If the allegation involves the defendant committing an act of stalking against
victim, give the elements of stalking from Instruction 8.6.
Give if applicable if the jury finds the defendant guilty of Violation of
Domestic Violence Injunction. § 784.0487(4)(b), Fla. Stat.
Now that you have found the defendant guilty of Violation of an
Injunction for Protection Against [Stalking] [Cyberstalking], you must
further determine whether the State has proven beyond a reasonable doubt
that the defendant was previously convicted two times or more of Violation of
an Injunction against the same person.
“Conviction” means a determination of guilt which is the result of a plea
or a trial, regardless of whether adjudication is withheld or a plea of nolo
contendere is entered.
Lesser Included Offenses
VIOLATION OF INJUNCTION FOR PROTECTION AGAINST
[STALKING] [CYBERSTALKING] – 784.0487(4)
CATEGORY CATEGORY FLA. STAT INS. NO.
ONE TWO
None
Attempt 777.04(1) 5.1
Comments
This instruction can be used for Violation of an Injunction for Protection
Against [Stalking] [Cyberstalking] based on prior convictions. For Felony
Violation of an Injunction for Protection Against [Stalking] [Cyberstalking] based
on prior convictions, it is error to inform the jury of prior Violation of Injunction
convictions until the verdict on the underlying Violation of an Injunction for
Protection Against [Stalking] [Cyberstalking] is rendered. Therefore, if the
information or indictment contains an allegation of prior Violation of Injunction
convictions, do not read that allegation and do not send the information or
indictment into the jury room. If the defendant is found guilty of Violation of an
Injunction for Protection Against [Stalking] [Cyberstalking], the historical fact of
- 10 -
prior convictions shall be determined separately by the jury in a bifurcated
proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2016.
- 11 -