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In re Standard Jury Instructions in Criminal Cases Report 2017-04

Supreme Court of Florida

November 30, 2017

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT 2017-04.

         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 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

          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 the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

         The 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.

         Criminal 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 instead:

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.

         Next, 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 1981).

         Instruction 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 opinion.

         Existing 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 removed.[1] 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 becomes final.

         It is so ordered.

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

         APPENDIX

         10.4 PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON (PREVIOUS CONVICTION) § 790.07(4), Fla.Stat.

         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).

         10.8 THREAT TO THROW, PLACE, PROJECT, OR DISCHARGE ANY DESTRUCTIVE DEVICE § 790.162, Fla._Stat.

         To 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:

         1. (Defendant) threatened to

[throw]
[place]
[project]
[discharge]
a destructive device.

         2. [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].

         Give if requested. Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983); Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981).

         It 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.

         Definition. Adapt as appropriate. § 790.001(4), Fla. Stat.

         A "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.

         "Destructive 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.

         Lesser Included Offenses

THREAT TO THROW, PROJECT, PLACE, OR DISCHARGE ANY DESTRUCTIVE DEVICE - 790.162

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Attempt

777.04(1)

5.1

Aggravated Assault

784.021

8.2

Assault

784.011

8.1

         Comment

         This instruction was adopted in 1981 and was amended in 1989 and 2017.

         14.4 RETAIL THEFT § 812.015(18), Fla._Stat.

         To 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] [negotiable documents].
b. [altered or removed a [label] [universal product code] or [price tag] from merchandise].
c. [transferred merchandise from one container to ...

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