IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT 2017-04.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Proceeding - Supreme Court Committee on Standard Jury
Instructions in Criminal Cases
F. Rand Wallis, Chair, Supreme Court Committee on Standard
Jury Instructions in Criminal Cases, Daytona Beach, Florida;
and Bart Schneider, Staff Liaison, Office of the State Courts
Administrator, Tallahassee, Florida, for Petitioner
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 the amended standard instructions for publication
and use. We have jurisdiction. See art. V, §
2(a), Fla. Const.
Committee proposes amending the following existing
instructions: 10.8 (Threat to Throw, Place, Project, or
Discharge any Destructive Device); 14.4 (Retail Theft);
25.15(a) (Retail Sale of Drug Paraphernalia); and 28.11
(Driving While License Suspended, Revoked or Canceled with
Knowledge). In addition, the Committee proposes deleting
instruction 10.4 (Persons Engaged in Criminal Offense Having
Weapon (Previous Conviction)). No comments were received by
the Committee pertaining to the proposals to instructions
10.4 and 10.8. Comments pertaining to the remaining
proposals, however, were received from the Florida
Association of Criminal Defense Lawyers and the Florida
Public Defender Association. The Committee made responsive
changes to the proposals to amend instructions 14.4,
25.15(a), and 28.11. The Court did not publish the proposals
after they were filed. The more significant amendments to the
instructions are discussed below.
jury instruction 10.4 (Persons Engaged in Criminal Offense
Having Weapon (Previous Conviction)), currently provides as
follows: "It is error to inform the jury of a prior
conviction. Therefore, do not read the allegation of prior
convictions or send the information or indictment into the
jury room. State of Florida v. Harris, 356 So.2d 315
(Fla. 1978)." While the instruction purports to cover
section 790.07(4), Florida Statutes (2017) (Persons engaged
in criminal offense, having weapons), subsection (4) provides
Whoever, having previously been convicted of a violation of
subsection (1) or subsection (2) and, subsequent to such
conviction, displays, uses, threatens, or attempts to use any
weapon, firearm, or electric weapon or device, carries a
concealed weapon, or carries a concealed firearm while
committing or attempting to commit any felony or while under
indictment is guilty of a felony of the first degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084. Sentence shall not be suspended or deferred under
the provisions of this subsection.
§ 790.07(4), Fla. Stat. (2017). Because instruction 10.4
does not pertain to section 790.07(4), we agree with the
Committee and delete both the instruction number and the body
of the instruction.
instruction 10.8 is amended to make clear that the offense as
charged under section 790.162, Florida Statutes (2017)
(Threat to throw, project, place, or discharge any
destructive device, felony; penalty), requires that the
threat convey an intent to do bodily harm or property damage,
not necessarily that the defendant had the intent to actually
do such harm or damage, that the harm or damage was actually
possible, or that there was an actual destructive device,
citing Valdes v. State, 443 So.2d 221 (Fla. 1st DCA
1983), and Reid v. State, 405 So.2d 500 (Fla. 2d DCA
14.4 (Retail Theft) has not been amended since it was adopted
in 1981, and no longer properly instructs upon the offense
defined under section 812.015, Florida Statutes (2017)
(Retail and farm theft; transit fare evasion; mandatory fine;
alternative punishment; detention and arrest; exemption from
liability for false arrest; resisting arrest; penalties).
Accordingly, instruction 14.4 is amended to include four,
rather than two, elements to define the offense. The first
two elements are based upon the definition of "retail
theft" under section 812.015(1)(d). Next, the third
element includes all the circumstances set forth in section
812.015(8)(a)-(d). Lastly, the fourth element captures the
requirement in section 812.015(8), that the property must be
valued at $300 or more. Additional changes to instruction
14.4 are also made as reflected in the appendix to this
criminal jury instructions 10.8, 14.4, 25.15(a), and 28.11,
as proposed by the Committee, and as set forth in the
appendix to this opinion, are hereby authorized for
publication and use, while instruction 10.4 is hereby
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 becomes final.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur
PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON (PREVIOUS
CONVICTION) § 790.07(4), Fla.Stat.
is error to inform the jury of a prior conviction. Therefore,
do not read the allegation of prior convictions or send the
information or indictment into the jury room. State of
Florida v. Harris, 356 So.2d 315 (Fla. 1978).
THREAT TO THROW, PLACE, PROJECT, OR DISCHARGE ANY DESTRUCTIVE
DEVICE § 790.162, Fla._Stat.
prove the crime of (crime
charged)Threat to [Throw] [Place] [Project]
[Discharge] Any Destructive Device, the State must prove
the following two elements beyond a reasonable doubt:
(Defendant) threatened to
a destructive device.
[He] [She] did so with The threat
conveyed an intent to do [bodily harm to] [damage to
the property of] any person.
[bodily harm to any person].
[damage to the property of any person].
if requested. Valdes v. State, 443 So.2d 221 (Fla. 1st DCA
1983); Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981).
is not necessary for the State to prove the defendant had the
actual intent to cause [harm] [or] [damage], or that [he]
[she] had the ability to carry out the threat, or that there
was an actual destructive device.
Adapt as appropriate. § 790.001(4), Fla.
"destructive device" is defined
as (adapt from §
790.001(4), Fla.Stat., as required by the allegations)
means any bomb, grenade, mine, rocket, missile, pipebomb, or
similar device containing an explosive, incendiary, or poison
gas and includes any frangible container filled with an
explosive, incendiary, explosive gas, or expanding gas, which
is designed or so constructed as to explode by such filler
and is capable of causing bodily harm or property damage; any
combination of parts either designed or intended for use in
converting any device into a destructive device and from
which a destructive device may be readily assembled; any
device declared a destructive device by the Bureau of
Alcohol, Tobacco, and Firearms; any type of weapon which
will, is designed to, or may readily be converted to expel a
projectile by the action of any explosive and which has a
barrel with a bore of one-half inch or more in diameter; and
ammunition for such destructive devices, but not including
shotgun shells or any other ammunition designed for use in a
firearm other than a destructive device.
device" does not include:
(a) A device which is not designed, redesigned, used, or
intended for use as a weapon;
(b) Any device, although originally designed as a weapon,
which is redesigned so that it may be used solely as a
signaling, line-throwing, safety, or similar device;
(c) Any shotgun other than a short-barreled shotgun; or
(d) Any nonautomatic rifle (other than a short-barreled
rifle) generally recognized or particularly suitable for use
for the hunting of big game.
THREAT TO THROW, PROJECT, PLACE, OR
DISCHARGE ANY DESTRUCTIVE DEVICE - 790.162
instruction was adopted in 1981 and was amended in 1989
RETAIL THEFT § 812.015(18), Fla._Stat.
prove the crime of Retail Theft, the State must prove the
following two four elements
beyond a reasonable doubt:
1. (Defendant) knowingly:
Give a, b, c, and/or d as applicable.
a. [took possession of or carried
away [merchandise] [property] [money]
b. [altered or removed a
[label] [universal product code]
or [price tag] from
c. [transferred merchandise
from one container to ...