IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASESâ REPORT 2019-09.
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 standard criminal jury
instructions 11.10(g) (Lewd or Lascivious Exhibition by a
Detainee in the Presence of an Employee of a Facility), 14.1
(Theft), 21.16 (Falsely Personating an Officer), 25.7
(Possession of a Controlled Substance), and 25.14 (Use or
Possession with Intent to Use Drug Paraphernalia). The
Committee published the proposals in The Florida Bar
News; no comments were received by the Committee. After
the Committee filed its report, the Court did not publish the
proposals for comment.
considered the Committee's report, we authorize the
proposed amendments to the instructions for publication and
use as proposed. Some of the more significant changes to the
instructions are discussed below.
instruction 11.10(g) is amended based upon the
Legislature's recent amendment to section 800.09, Florida
Statutes (2019), which expanded the offense to include
commission of lewd or lascivious exhibition in a county
detention facility. See ch. 2019-167, § 34,
Laws of Fla. Thus, "county detention facility" is
added as an alternative where the defendant was detained, and
the definition for that term, as defined by section
951.23(1), Florida Statutes (2019), is added. In addition,
the phrase "any person employed at or performing
contractual services for a county detention facility" is
added to the definition of "employee," based upon
the addition of section 800.09(1)(a)4.
the theft instruction, 14.1, is amended based upon the change
to the grand theft statute, section 812.014(2)(c), Florida
Statutes (2019), which changed the value of the property
stolen from $300 or more to $750 or more, and added the
phrase "that, at the time of the taking, was installed
in a building for the purpose of fire prevention and
control" to the definition of "fire
extinguisher." See ch. 2019-167, § 36,
Laws of Fla.
21.16 is amended also based upon recent legislation. Under
chapter 2019-22, section 2, Laws of Florida, the Legislature
added "a school guardian as described in s.
30.15(1)(k)" and "a security officer licensed under
chapter 493" to the list of impersonated individuals
covered by the crime of Falsely Personating an Officer and
removed the term "watchman." In addition,
"officers of the Department of Environmental
Protection" are also included in the list. See
ch. 2019-141, § 14, Laws of Fla. Instruction 21.16 is
amended criminal jury instructions, as set forth in the
appendix to this opinion, are hereby authorized for
publication and use. 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
11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE
IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY
800.09, Fla. Stat.
prove the crime of Lewd or Lascivious Exhibition by a
Detainee in the Presence of an Employee of a Facility, the
State must prove the following three elements beyond a
1. (Defendant) was detained in a [state correctional
institution] [private correctional facility] [county
2. While detained, (defendant) intentionally
b. exposed [his] [her] genitals in a lewd or lascivious
c. committed [a sexual act] [sadomasochistic abuse] [sexual
bestiality] [the simulation of any act involving sexual
activity] that did not involve actual physical or sexual
contact with a victim.
3. (Defendant's) act was intentionally committed in the
presence of a person [he] [she] knew or reasonably should
have known was an employee of the [institution] [facility].
Give as applicable.
944.02(8), Fla. Stat.
"state correctional institution" is any prison,
road camp, prison industry, prison forestry camp, or any
prison camp or prison farm or other correctional facility,
temporary or permanent, in which prisoners are housed,
worked, or maintained, under the custody and jurisdiction of
the Department of Corrections.
944.710(3), Fla. Stat.
"private correctional facility" is any facility,
which is not operated by the Department of Corrections, for
the incarceration of adults or juveniles who have been
sentenced by a court and committed to the custody of the
Department of Corrections.
951.23(1)(a), Fla. Stat.
"county detention facility" is a county jail, a
county stockade, a county work camp, a county residential
probation center, and any other place except a municipal
detention facility used by a county or county officer for the
detention of persons charged with or convicted of either a
felony or a misdemeanor.
800.09(1)(a), Fla. Stat.
means [any person employed by or performing contractual
services for a public or private entity operating a state
correctional institution or a private correctional
facility] or [any person
employed by or performing contractual services for the
corporation operating the prison industry enhancement
programs [or the correctional work programs under part II of
chapter 946]] [any person employed at or performing
contractual services for a county detention
term also includes any person who is a parole
examiner with the Parole
Commission Florida Commission on Offender
words "lewd" and "lascivious" mean the
same thing: a wicked, lustful, unchaste, licentious, or
sensual intent on the part of the person doing an act.
800.04(1)(a), Fla. Stat.
activity" means the oral, anal, or vaginal penetration
by, or union with, the sexual organ of another or the anal or
vaginal penetration of another by any other object; however,
sexual activity does not include an act done for a bona fide
fide" means genuine.
v. State, 113 So.3d 90 (Fla. 5th DCA 2013).
definition of "an object" includes a finger.
847.001(13), Fla. Stat.
abuse" means flagellation or torture by or upon a person
or animal, or the condition of being fettered, bound, or
otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a
result of sadistic violence, from inflicting harm on another
or receiving such harm oneself.
847.001(15), Fla. Stat.
bestiality" means any sexual act, actual or simulated,
between a person and an animal involving the sex organ of the
one and the mouth, anus, or vagina of the other.
800.04(1)(d), Fla. Stat.
means a person upon whom the acts described above was
committed or attempted or a person who has reported these
acts to a law enforcement officer.
State v. Werner, 609 So.2d 585 (Fla. 1992).
the presence of" means that a victim saw, heard, or
otherwise sensed that the act was taking place.
800.04(2), Fla. Stat.
a victim's lack of chastity nor a victim's consent is
a defense to the crime charged.
LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE
PRESENCE OF AN EMPLOYEE OF A FACILITY - 800.09
Exposure of Sexual Organs
Unnatural and lascivious act*
courts do not require the State to allege the
defendant's act was "unnatural" or
"against the laws of nature" in
order for § 800.02, Fla. Stat., to be given as
a lesser-included offense.
are statutory definitions of "sadomasochistic
abuse" and "sexual bestiality" in §
827.071, Fla. Stat., that differ from the statutory
definitions in § 847.001, Fla. Stat. As of June 2018 September 2019, there is no case law
that decides which definition applies for a violation of
§ 800.09, Fla. Stat.
instruction was adopted in 2013 [131 So.3d 720] and amended
in 2015 [176 So.3d 938], and
2018 [257 So.3d 370], and 2020.
812.014, Fla. Stat.
prove the crime of Theft, the State must prove the following
two elements beyond a reasonable doubt:
1. (Defendant) knowingly and unlawfully [obtained or used]
[endeavored to obtain or to use] the (property alleged) of
2. [He] [She] did so with intent to, either temporarily or
a. deprive (victim) of [his] [her] right to the property or
any benefit from it.
b. appropriate the property of (victim) to [his] [her] own
use or to the use of any person not entitled to it.
Give as applicable.
find the defendant guilty of tTheft, you must also determine if the State has
proved beyond a reasonable doubt whether:
a. the value of the property taken was $100,000 or more.
b. the value of the property taken was $20,000 or more but
less than $100,000.
c. the value of the property taken was $10,000 or more but
less than $20,000.
d. the value of the property taken was $5,000 or more but
less than $10,000.
e. the value of the property taken was $300750 or more but less than $5,000.
f. the value of the property taken was $100 or more but
less than $300750.
g. the value of the property taken was less than $100.
h. the property taken was a semitrailer that was deployed by
a law enforcement officer.
i. the property taken was cargo valued at $50,000 or more
that has entered the stream of commerce from the
shipper's loading platform to the consignee's
j. the property taken was cargo valued at less than $50,000
that has entered the stream of commerce from the
shipper's loading platform to the consignee's
k. the property taken was emergency medical equipment valued
at $300 or more that was taken from [a licensed facility] [an
emergency medical aircraft or vehicle].
l. the property taken was law enforcement equipment
valued at $300 or more that was taken from an authorized
m. (defendant), individually or in concert with one or more
persons, coordinated the activities of another in committing
the theft and the value of the property taken was more than
n. the stolen property was [a will, codicil, or other
testamentary instrument] [a firearm] [a motor vehicle] [a
commercially farmed animal] [an aquaculture species raised at
a certified aquaculture facility] [a fire
extinguisher that, at the time of the taking, was
installed in a building for the purpose of fire prevention
and control] [2,000 or more pieces of citrus fruit] [taken
from a legally posted construction site] [a stop sign]
[anhydrous ammonia] [a controlled substance. Under Florida
law, (name of controlled substance) is a controlled
o. the value of the property taken was $100 or more but
less than $300750, and was taken
from [a dwelling] [the unenclosed curtilage of a dwelling].
applicable but only in cases of grand theft. §
812.014(2)(a)3, Fla. Stat.
find the defendant guilty of theft, you must also determine
if the State has proved beyond a reasonable doubt whether:
p. in the course of committing the theft, (defendant) used a
motor vehicle as an instrumentality, other than merely as a
getaway vehicle, to assist in committing the theft and
thereby damaged the real property of another.
q. in the course of committing the theft, (defendant) caused
more than $1,000 in damage to the [real] [personal] property
of emergency. Applies only to elements b, c, d, j, k and l
find (defendant) guilty of theft, you must also determine if
the State has proved beyond a reasonable doubt whether:
r. the theft was committed within a county that was subject
to a state of emergency that had been declared by the
governor under Chapter 252, the "State Emergency
the perpetration of the theft was facilitated by conditions