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In re Standard Jury Instructions in Criminal Cases Report 2017-12

Supreme Court of Florida

July 12, 2018

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT 2017-12.

         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 standard criminal jury instructions pertaining to the offenses of failure to comply with reporting requirements for sexual offenders and sexual predators: 11.14 (Failure by a Sexual Offender to Comply with Registration Requirements (Initially Register, Report, or Provide Registration Items)); 11.14(b) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Comply with Registration of [Employment] [Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Learning)); 11.14(e) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Change of Residence to Another State or Jurisdiction or Country)); 11.14(g) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Twice a Year/Failure to Report Quarterly/Providing False Information)); 11.14(h) (Sexual Offender Definitions); 11.15(b) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Provide Required Information)); 11.15(c) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home)); 11.15(d) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of [Enrollment] [Employment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Education)); 11.15(e) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report to Department of Highway Safety and Motor Vehicles)); 11.15(h) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Respond to Address Verification Correspondence)); 11.15(i) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report Intent to Move to Another State, Jurisdiction, or Country)); and 11.15(1) (Sexual Predator Definitions).

         All of the proposals were published by the Committee in The Florida Bar News. No comments were received by the Committee. After the Committee filed its report, the Court did not publish the Committee's proposals for comment. The changes to the jury instructions for sexual offenders and sexual predators' failure to comply with reporting requirements are made in response to statutory changes by the Legislature in chapter 2016-104, sections 1 and 3, and chapter 2017-107, sections 1-2, Laws of Florida, amending sections 943.0435 and 775.021, Florida Statutes.

         Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use.[1]New language is indicated by underlining, and deleted language is indicated by struck-through type. We 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. 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. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

         It is so ordered.

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

         APPENDIX

         11.14 FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

         (Initially Register, Report, or Provide Registration Items) § 943.0435(2)(a)-(c), Fla. Stat.

         To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

         Give 1a or 1b as applicable.

         1. (Defendant)

a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status an element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, 3e, or 3f as applicable.

3. (Defendant)
a. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after establishing permanent, temporary, or transient residence within this state.
b. knowingly failed to report in person at an office of the sheriff of (name of county) County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections] [custody of a private correctional facility].
c. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after having been convicted by a court in that county of an offense requiring registration.
d. knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [(name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute).]
e. knowingly failed to report in person at an office of the sheriff of (name of county) within 48 hours after any change in vehicles owned to report those vehicle information changes.
f. knowingly failed to provide an office of the sheriff of (name of county) with (insert information, such as criminal and corrections records, nonprivileged personnel and treatment records, and evidentiary genetic markers), which [he] [she] knew had been deemed necessary by the Department of Law Enforcement and which was available.

Read only if the defendant is charged with failing to provide a physical residential address.

         The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

         Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

         It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply but was misinformed or otherwise prevented from complying by the office of the sheriff.

         There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

         The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

         If burden of persuasion is on the defendant:

         If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

         Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

         If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find (defendant) guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

         Definitions. See instruction 11.14(h) for the applicable definitions.

         Lesser Included Offenses

         No lesser included offenses have been identified for this offense.

         Comments

         In some cases, a special instruction will be needed if the sexual offender initially reported but then failed to properly report a change in the information required to be provided pursuant to § 943.0435(2)(a)2., Fla. Stat.

         This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

         11.14(b) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

         (Failure to Comply with [Registration] [or] [a Change] of [Employment]

         [Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Learning)

         § 943.0435(2)(b)2., Fla. Stat. or § 943.0435(4)(e)2., Fla. Stat.

         To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

         Give 1a or 1b as applicable.

         1. (Defendant)

a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

         If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

         Give 3a or 3b as applicable. 3a is for initial registration with the sheriff and 3b is for changes to the initial information.

3. (Defendant)a. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide the office of the sheriff of (name of county) County with the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status.
b. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide [through the on-line system of the Florida Department of Law Enforcement] [or] [in person at an office of the sheriff of (name of county) County] [or] [in person at the Department of Corrections if [he] [she] was in the custody or control, or under the supervision of the Department of Corrections] [or] [in person at the Department of Juvenile Justice if [he] [she] was in the custody or control, or under the supervision of the Department of Juvenile Justice] with any change to the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status, within 48 hours after the change.
a. [is] [was] enrolled, employed, volunteering, or carrying on a vocation at an institution of higher education in this state, and
knowingly failed to provide an office of the sheriff of (name of county) County with [(the name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute).]
b. [is] [was] enrolled, employed, volunteering or carrying on a vocation at an institution of higher education in this state.
undertook a change in [his] [her] enrollment or
employment status, and
knowingly failed to report this change in person at an office of the sheriff of (name of county) County within 48 hours after the change.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

         It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice].

         There is no statute for the defense of being misinformed or otherwise prevented from complying with registration requirements, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

         The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

         If burden of persuasion is on the defendant:

         If you find that (defendant) proved (insert appropriate burden of persuasion) that the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

         Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

         If you find that the State proved beyond a reasonable doubt that the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

         Definitions. See instruction 11.14(h) for the applicable definitions.

         Lesser Included Offenses

         No lesser included offenses have been identified for this offense.

         Comment

         This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

         11.14(e) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

         (Failure to Report Change of Residence to Another State or Jurisdiction or Country)

         § 943.0435(7), Fla. Stat.

         To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following four elements beyond a reasonable doubt:

         Give 1a or 1b as applicable.

         1. (Defendant)

a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.
3. (Defendant) intended to leave this State to establish residence in another [state] [jurisdiction] [country] on (date).

         Give as applicable.

4. a. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction within the United States.
b. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 21 days before the date on which [he] [she] intended to leave this state to establish residence for 5 days or more outside the United States[at least 21 days before the date on which [he] [she] intended to leave this state to establish residence for 5 days or more outside the United States] [as soon as possible before departure if [he] [she] did not know about leaving this state to establish residence for 5 days or more outside the United States at least 21 days in advance of the departure].
c. (Defendant) knowingly failed to provide the [address, municipality, county, and state] [address and country] of [his] [her] intended address, when [he] [she] reported to the sheriff's office of the county of [his] [her] current residence [his] [her] intention to establish residence in another [state] [jurisdiction] [country].
d. (Defendant) intended to travel internationally and knowingly failed to provide to the office of the sheriff in the county of [his] [her] residence [his] [her] expected departure and return dates, flight number, [airport] [cruise] of departure or any other means of intended travel.

         Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

         It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

         There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

         The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

         If burden of persuasion is on the defendant:

         If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

         Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

         If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

         Definitions. See instruction 11.14(h) for the applicable definitions.

         Lesser Included Offenses

         No lesser included offenses have been identified for this offense.

         Comment

         This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

         11.14(g) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

         (Failure to Report Twice a Year/Failure to Report Quarterly/Providing False Information)

         § 943.0435(14)(a)-(b), Fla. Stat.

         Give this statement if the charge is failure to report twice a year during the sexual offender's birthday month and six months later pursuant to § 943.0435(14)(a), Fla. Stat., or, for certain specified violators, failure to report during the sexual offender's birthday month and every third month thereafter pursuant to § 943.0435(14)(b), Fla. Stat.

         To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

         Give 1a or 1b as applicable if § 943.0435(14)(a), Fla. Stat., is charged.

         1. (Defendant)

a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

Give 1c or 1d as applicable if § 943.0435(14)(b), Fla. Stat., is charged.

c. is a sexual offender and is required to report and reregister as a result of a conviction for (insert relevant factor in § 943.0435(14)(b)1.-(14)(b)101., Fla. Stat.).
d. has agreed or stipulated that [he] [she] has been convicted as a sexual offender and that [he] [she] is required by law to report in person during [his] [her] birthday month and reregister every third month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.

         If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

         2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, 3e, 3f, or 3g as applicable.

         3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (year) to an office of the sheriff in the county in which [he] [she] ...

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