Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Standard Jury Instructions in Criminal Cases- Report 2019-09

Supreme Court of Florida

January 16, 2020

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT 2019-09.

         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 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.

         Having 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.

         First, 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.

         Next, 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.

         Instruction 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 accordingly.

         The amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized 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 POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

         APPENDIX

         11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY

§ 800.09, Fla. Stat.

         To 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 reasonable doubt:

1. (Defendant) was detained in a [state correctional institution] [private correctional facility] [county detention facility].
2. While detained, (defendant) intentionally

         Give as applicable.

a. masturbated.
b. exposed [his] [her] genitals in a lewd or lascivious manner.
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].

         Definitions. Give as applicable.

         § 944.02(8), Fla. Stat.

         A "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.

         A "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.

         A "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.

         "Employee" 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 facility]. [The term also includes any person who is a parole examiner with the Parole CommissionFlorida Commission on Offender Review.].

         The 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.

         "Sexual 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 medical purpose.

         Give if applicable.

         "Bona fide" means genuine.

         Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

         The definition of "an object" includes a finger.

         § 847.001(13), Fla. Stat.

         "Sadomasochistic 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.

         "Sexual 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.

         "Victim" 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.

         See State v. Werner, 609 So.2d 585 (Fla. 1992).

         "In the presence of" means that a victim saw, heard, or otherwise sensed that the act was taking place.

         § 800.04(2), Fla. Stat.

         Neither a victim's lack of chastity nor a victim's consent is a defense to the crime charged.

         Lesser Included Offenses

LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY - 800.09

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Attempt

777.04(1)

5.1

Exposure of Sexual Organs

800.03

11.9

Unnatural and lascivious act*

800.02*

11.8*

         Comments

         *The 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.

         There 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 2018September 2019, there is no case law that decides which definition applies for a violation of § 800.09, Fla. Stat.

         This 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.

         14.1 THEFT

         § 812.014, Fla. Stat.

         To 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 (victim).
2. [He] [She] did so with intent to, either temporarily or permanently,
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.

         Degrees. Give as applicable.

         If you 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 receiving dock.
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 receiving dock.
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 emergency vehicle.
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 $3, 000.
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 substance.]
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].

         Give if applicable but only in cases of grand theft. § 812.014(2)(a)3, Fla. Stat.

         If you 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 another.

         State of emergency. Applies only to elements b, c, d, j, k and l above. If you 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.