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In re Standard Jury Instructions In Criminal Cases- Report 2016-05

Supreme Court of Florida

February 9, 2017

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT 2016-05.

         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

          PER CURIAM.

         The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize for publication and use the amended and newly adopted standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

         The Committee proposes amending existing standard instruction 20.6 (Welfare Fraud-[Food Assistance Identification Card] [Authorization] [Certificate of Eligibility for Medical Services] [Medicaid Identification Card]) and adopting new jury instruction 20.6(a) (Welfare Fraud-[Selling] [Attempting to Sell] an EBT[1] Card).[2] No comments were received by the Committee. The Court did not publish the proposals after they were filed. The more significant amendments to the instructions are discussed below.

         One amendment to instruction 20.6 is based upon section 414.39(2), Florida Statutes (2016), as amended by chapter 2016-185, section 1, Laws of Florida. There, the Legislature added the definition of "traffic" in new subsection (2)(b), which is included in the amended instruction. Also added to instruction 20.6 is the definition of an "EBT card." Although an "EBT card" is not included in the elements of the offense of fraud under section 414.39(2)(a), it is included in a portion of the definition of "traffic."

         Newly adopted instruction 20.6(a) also derives from another amendment to section 414.39(2) by the 2016 Legislature, which added a new subdivision (c) defining a distinct offense of fraud. In pertinent part, instruction 20.6(a) includes the elements constituting the offense, which pertains to the defendant's possession of two or more EBT cards issued to others, and the definitions for "EBT card, " "possess, " and "attempt." In addition, as originally proposed by the Committee, see supra, note 2, the Court includes in the instruction the recidivism enhancement provision from section 414.39(2)(c), as well as the paragraph in the Comments section that instructs judges that the jury should not be advised of any charge of prior convictions until after the defendant was convicted of the original charge, and in that case, a bifurcated proceeding should be conducted to determine if the defendant is subject to the recidivism enhancement.

         Having considered the Committee's original and amended reports, jury instructions 20.6, as proposed by the Committee, and 20.6(a), as originally proposed and as set forth in the appendix to this opinion, are hereby authorized for publication and use.[3] New language is indicated by underlining, and deleted language is indicated by struck-through type. 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 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. The instructions as set forth in the appendix shall be effective when this opinion is final.

         It is so ordered.

          LABARGA, C.J, and PARIENTE, LEWIS, QUINCE, CANADY, and POLSTON, JJ, concur

          LAWSON, J., did not participate.

         APPENDIX

         20.6 WELFARE FRAUD - [FOOD ASSISTANCE IDENTIFICATION CARD] [AUTHORIZATION] [CERTIFICATE OF ELIGIBILITY FOR MEDICAL SERVICES] [MEDICAID IDENTIFICATION CARD] § 414.39(2), Fla. Stat.

         To prove the crime of Welfare Fraud - [Food Assistance Identification Card] [Authorization] [Certificate of Eligibility for Medical Services] [Medicaid Identification Card], the State must prove the following two elements beyond a reasonable doubt:

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

         1. The defendant(Defendant) knowingly:

a. used, transferred, acquired, trafficked, altered, forged or possessed
b. attempted to use, transfer, acquire, traffic, alter, forge, or possess
c. aided and abetted another person in the use, transfer, acquisition, traffic, alteration, forgery or possession of [a food assistance identification card] [an authorization for the expenditure of food assistance benefits] [a certificate of eligibility for medical services] [a Medicaid identification card].

         2. The use, transfer, acquisition, traffic, alteration, forgery, or possession was not authorized by law.

         The law requires (insert the appropriate law pertaining to the relevant item).

         ยง ...


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