Standard Jury Instructions
723 So. 2d 123
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Standard Jury Instructions, 723 So. 2d 123 (Fla. 1998).
Opinion
STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (97-2).
Supreme Court of Florida.
Honorable Philip J. Padovano, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, for Petitioner.
William D. Matthewman, Miami, John H. Gutmacher, Orlando, Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, and Arthur I. Jacobs, General Counsel for Florida Prosecuting Attorneys Association, Fernandina Beach, Responding.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:
1. A revised Schedule of Lesser Included Offenses.[1]
2. A New Instruction on Duress or Necessity.
3. A Supplemental Instruction on Penalty Phase Proceedings.
4. An Amended Instruction on Entrapment.
5. An Amended Instruction on False Imprisonment.
6. Amended Instructions Relating to DUI.
7. A New Instruction on Sexual Activity with a Minor.
The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.
First, the word "intentionally" has been added to the first element in the Committee's proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term "police" in the definition of information to "law enforcement." The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.
With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.
Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
APPENDIX
SCHEDULE OF LESSER INCLUDED OFFENSES
COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees *124 or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (Fla.1968) described these categories as follows:
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending on the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines: 1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See Ray v. State, 403 So.2d 956 (Fla.1981); State v. Carpenter, 417 So.2d 986 (Fla.1982).
2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, e.g., uttering, forgery, grand theft second degree, delivery of controlled substance.
3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under F.S. 810.02 burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses.
6. Under Knight v. State, 338 So.2d 201 (Fla.1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
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STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (97-2).
Supreme Court of Florida.
Honorable Philip J. Padovano, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, for Petitioner.
William D. Matthewman, Miami, John H. Gutmacher, Orlando, Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, and Arthur I. Jacobs, General Counsel for Florida Prosecuting Attorneys Association, Fernandina Beach, Responding.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:
1. A revised Schedule of Lesser Included Offenses.[1]
2. A New Instruction on Duress or Necessity.
3. A Supplemental Instruction on Penalty Phase Proceedings.
4. An Amended Instruction on Entrapment.
5. An Amended Instruction on False Imprisonment.
6. Amended Instructions Relating to DUI.
7. A New Instruction on Sexual Activity with a Minor.
The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.
First, the word "intentionally" has been added to the first element in the Committee's proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term "police" in the definition of information to "law enforcement." The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.
With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.
Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
APPENDIX
SCHEDULE OF LESSER INCLUDED OFFENSES
COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees *124 or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (Fla.1968) described these categories as follows:
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending on the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines: 1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See Ray v. State, 403 So.2d 956 (Fla.1981); State v. Carpenter, 417 So.2d 986 (Fla.1982).
2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, e.g., uttering, forgery, grand theft second degree, delivery of controlled substance.
3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under F.S. 810.02 burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses.
6. Under Knight v. State, 338 So.2d 201 (Fla.1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
*125
TABLE OF LESSER INCLUDED OFFENSES
SECTION CHARGED CATEGORY 1 CATEGORY 2
OFFENSE
316.193(1) Driving under None Attempt
the influence
316.193(2)(b) Felony DUI prior None Attempt
convictions
316.193(3)(c) DUI with damage DUI - 316.193(1) None
(1) to property
or person
316.193(3)(c) DUI with serious DUI - 316.193(1) DUI- 316.193(3)(c)(1)
(2) bodily injury
316.193(3)(c) DUI manslaughter DUI - 316.193(1) DUI serious bodily injury
(3) - 316.193(3)(c)(2)
DUI damage to person
or property -316.193(3)(c)
Vehicular homicide -782.071
550.361 Bookmaking on None Attempt
grounds of permit
holder
(adapted from
former 849.24)
782.04(1) First degree Second degree (depraved Second degree
(premeditated) mind) murder (felony) murder -782.04(3)
murder - 782.04(2) Third degree (felony
Manslaughter -782.07 murder) - 782.04(4)
Vehicular homicide -782.071
(Nonhomicide lessers)
Attempt
Culpable negligence -784.05(2)
Aggravated battery
784.045
Aggravated assault -784.021
Battery - 784.03
Assault - 784.011
782.04(1) First degree Second degree (depraved Second degree
(felony) murder mind) murder- 782.04(2) (felony) murder -782.04(3)
Manslaughter -782.07 Third degree (felony)
murder - 782.04(4)
(Nonhomicide lessers)
Aggravated battery -784.045
Aggravated assault -784.021
Battery - 784.03
Assault - 784.0111
*126
782.04(1)(a) & Attempted first Attempt second degree Aggravated assault -
777.04 degree (premeditated) (depraved 784.021
murder mind) murder - Aggravated battery -
782.04(2) & 777.04 784.045
Attempt voluntary Assault - 784.011
manslaughter - Battery - 784.03
782.07 & 777.04
782.04(2) Second degree Manslaughter - 782.07 Third degree
(depraved mind) (felony) murder - 782.04(4)
murder
Vehicular homicide - 782.071
(Nonhomicide lessers)
Attempt
Culpable negligence - 784.05(2)
Aggravated battery - 784.045
Aggravated assault - 784.021
Battery - 784.03
Assault - 784.011
782.04(3) Second degree None Third degree (felony)
(felony) murder murder - 782.04(4)
782.051 Felony causing None Felony causing bodily
bodily injury injury - 782.051(2)
Felony causing bodily
injury - 782.051(3)
782.04(4) Third degree None Aggravated assault -784.021
(felony murder) Battery - 784.03
Assault - 784.011
782.07 Manslaughter None Vehicular homicide - 782.071
(Nonhomicide lessers)
Attempt
Aggravated assault - 784.021
Battery - 784.03
Assault - 784.011
Culpable negligence - 784.05(1)
Culpable negligence - 784.05(2)
782.071 Vehicular Homicide Reckless driving - 316.192 Culpable negligence - 784.05(1)
Culpable negligence - 784.05(2)
784.011 Assault None Attempt
784.021(1)(a) Aggravated Assault - 784.011 Attempt Improper exhibition
assault of dangerous
weapons or firearms - 790.10
Discharging firearms in
public - 790.15
*127
784.021(1)(b) Aggravated Assault - 784.011 Attempt
assault
784.03 Battery None Attempt
784.045(1)(a) Aggravated Battery - 784.03 Attempt
1 battery
784.045(1)(a) Aggravated Battery - 784.03 Attempt
2 battery Improper exhibition of
dangerous weapons or
firearms - 790.10
784.045(1)(b) Aggravated Battery - 784.03 Attempt
battery
784.048(2) Stalking None Attempt
784.048(3) Aggravated Stalking - 784.048(2) Attempt
stalking Assault - 784.011
Improper exhibition of
dangerous weapon -790.10
784.048(4) Aggravated Stalking - 784.048(2) Attempt
stalking Violation of injunction
for protection against
domestic violence - 741.31(4)
784.05(2) Culpable Culpable negligence None
negligence - 784.05(1)
784.07(2) Assault of law Assault - 784.011 Attempt
enforcement
officer
784.07(2) Battery of law Battery - 784.03 Attempt
enforcement
officer
784.07(2)(c) Aggravated Aggravated Attempt
assault on law assault - 784.021 Improper exhibition of
enforcement Assault on law dangerous weapons or
officer enforcement firearms - 790.10
officer - 784.07(2)(a) Discharging firearms in
Assault - 784.011 public - 790.15
784.07(2)(d) Aggravated Aggravated Attempt
battery on law battery - 784.045 Improper exhibition of
enforcement Battery on law dangerous weapons or
officer enforcement firearms - 790.10
officer Discharging firearms in
784.07(2)(b) public - 790.15
Battery - 784.03
784.08(2)(a) Aggravated Aggravated Attempt
battery on battery - 784.045 Improper exhibition of
person 65 years Battery on dangerous weapons or
of age or older person 65 years firearms - 790.10
of age or older Discharging firearms in
- 784.08(2)(c) public - 790.15
Battery - 784.03
784.08(2)(b) Aggravated Aggravated Attempt
assault on assault - 784.021 Improper exhibition of
person 65 years Assault on dangerous weapons or
of age or older firearms - 790.10
*128
person 65 years Discharging firearms in
of age or older public - 790.15
- 784.08(2)(d)
Assault - 784.011
784.08(2)(c) Battery on person Battery - 784.03 Attempt
65 years of
age or older
784.08(2)(d) Assault on person Assault - 784.011 Attempt
65 years of
age or older
787.01 Kidnapping False Attempt
imprisonment - 787.02 Aggravated assault - 784.021(1)(b)
Battery - 784.03(1)(a)
Assault - 784.011
787.02 False None Attempt
imprisonment Battery - 784.03(1)(a)
Assault - 784.011
790.01(1) Carrying concealed None Attempt
weapons
790.01(2) Carrying concealed None Attempt
firearms
790.06 Carrying pistol None Attempt
or repeating rifle
without first
obtaining license
790.07(1) Persons engaged None Attempt (may be applicable
in criminal when concealed
offense, having weapon is charged)
weapons Carrying concealed
weapons - 790.01(1)
Improper exhibition of
dangerous weapons -790.10
790.07(2) Persons engaged None Attempt (may be
in criminal applicable when concealed
offense, having firearm is
weapons charged)
Carrying concealed firearm
- 790.01(2)
Improper exhibition of
dangerous firearms -790.10
790.10 Improper None Attempt
exhibition of Assault - 784.011
weapon
790.15 Discharging None Attempt
firearms in public
790.161(1) Possessing, None None
throwing, making,
placing,
projecting, or
discharging destructive
device
790.161(2) Possessing, Possessing, throwing, Aggravated assault - 784.021
throwing, making, making, placing, Assault - 784.011
placing, projecting, or
*129
projecting, or discharging destructive
discharging destructive device - 790.161 (1)
device
790.161(3) Possessing, Possessing, throwing Possessing, throwing,
throwing, making making, placing, making, placing,
placing projecting, or projecting, or discharging
projecting, or discharging destructive destructive device -
discharging destructive device 790.161(2)
device 790.161(1) Aggravated assault -
784.021
Assault - 784.011
790.161(4) Possessing, Possessing, throwing, Possessing, throwing,
throwing, making, making, placing, making, placing, projecting,
placing, projecting, or or discharging destructive
projecting, or discharging destructive device - 790.161(2)
discharging destructive device - 790.161(1) Aggravated assault - 784.021
device Possessing, throwing, Assault - 784.011
making, placing,
projecting, or
discharging destructive
device - 790.161(3)
790.162 Threat to throw, None Attempt
project, place, Assault - 784.011
or discharge any
destructive device
790.163 False reports of None None
bombing
790.164 False reports of None Attempt
bombing or arson False reports of bombing
or other violence - 790.163
to property
owned by the
State
790.17 Furnishing None Attempt
weapons to minors
under 18
years of age,
etc.
790.18 Selling arms to None Attempt
minors by dealers
790.19 Shooting or None Attempt
throwing missiles Discharging firearm in
in dwelling public - 790.15
790.221 Possession of None Attempt
forbidden firearms
790.23 Felons; possession None Attempt (may be applicable
of firearms when concealed
unlawful; exception; weapon is charged)
penalty Carrying concealed firearm - 790.01(2)
*130
794.011(2)(a) Sexual battery - victim Battery - 784.03 Sexual battery - 794.011(5)
(b) under 12 Attempt
Assault - 784.011
Aggravated assault - 784.021(1)(a)
Aggravated battery - 784.045(1)(a)
794.011(3) Sexual battery - victim Sexual battery-794.011(5) Sexual battery - 794.011(2)(b)
over 12 - weapon Battery - 784.03 Attempt
or force Aggravated battery -784.045(1)(a)
Aggravated assault -784.021(1)(a)
Assault - 784.011
Sexual battery -794.011(4)
794.011(4) Sexual battery-victim Sexual battery-794.011(5) Attempt
over 12 - special Battery - 784.03 Aggravated assault -784.021(1)(a)
circumstances Assault - 784.011
794.011(5) Sexual battery-victim Battery - 784.03 Attempt
over 12 - without
force
800.02 Unnatural and None Attempt
lascivious act
800.03 Exposure of None Unnatural and lascivious
sexual organs act - 800.02
800.04 Lewd, None Attempt
lascivious, or Assault - 784.011
indecent Battery - 784.03
assault or act Unnatural and
upon or lascivious
in presence of act - 800.02
child
806.01(1) Arson None Arson 806.01(2)
Attempt
Criminal mischief -806.13(1)(b)1
Criminal mischief -806.13(1)(b)2.
Criminal mischief -806.13(1)(b)3.
Criminal mischief -806.13(2)
806.111 Arson - Fire None Attempt
bomb
806.13(1)(b)1 Criminal mischief None Attempt
806.13(1)(b)2 Criminal mischief Criminal mischief - Attempt
806.13(1)(b)1
806.13(1)(b)3 Criminal mischief Criminal mischief - Attempt
806.13(1)(b)1
Criminal mischief -
806.13(1)(b)2
810.02(2) Burglary with Burglary - 810.02(4) Aggravated battery - 784.03
*131
assault or Battery - 784.03
battery or while Aggravated assault - 784.021
armed Assault - 784.011
Attempt
Burglary - 810.02(3)
Trespass - 810.08(2)(a)
Trespass - 810.08(2)(c)
810.02(3) Burglary of Burglary - 810.02(4) Attempt
dwelling Burglary - 810.02(3)
Burglar Trespass - 810.08(2)(a)
structure or Trespass - 810.08(2)(b)
conveyance with
human being inside
810.02(4) Burglary None Attempt
Trespass - 810.08(2)(a)
810.06 Possession of None None
burglary tools
810.08 Trespass in None Attempt (except refuse
structure or to depart)
conveyance
810.09 Trespass on None Attempt
property other
than structure
or conveyance
812.014(2)(a) Grand theft - first Grand theft - second Trade secrets - 812.081
degree degree - 812.014(2)(b)
(property Grand theft - third
valued at $100,000 degree - 812.014(2)(c)
or more) (1), (2), (3)
Petit theft - first
degree
812.014(2)(e)
Petit theft - second
degree - 812.014(3)(a)
812.014(2)(b) Grand theft - second Grand theft - third Trade secrets - 812.081
degree degree - 812.014(2)(c)
(property (1), (2), (3)
valued at $20,000 Petit theft-first
or more but degree
less than $100,000 812.014(2)(e)
Petit theft - second
degree
812.014(3)(a)
812.014(2)(c) Grand theft -third Petit theft -first Trade secrets - 812.081
degree degree Trespass to
812.014(2)(e) conveyance - 812.014(2)(c)(6)
Petit theft - second
degree
812.014(3)(a)
*132
812.014(2)(d) Grand theft third None Petit theft - second degree-812.014(3)(a)
degree
812.014(2)(e) Petit theft - first None Petit theft - second degree - 812.014(3)(a)
degree
812.014(3)(b) Petit theft None None
812.014(3)(a) Petit theft - second None None
degree
812.014(3)(c) Felony Petit None Petit theft - first degree - 812.014(2)(e)
theft Petit theft - 812.014(3)(b)
Petit theft - second degree - 812.014(3)(a)
812.016 Possession of altered None Attempt
property
812.019(1) Dealing in stolen None Grand theft - third degree - 812.014(2)(c)
property trafficking Petit theft - 812.014(2)(e)
Petit theft - 812.014(3)(a)
812.019(2) Dealing in stolen Dealing in stolen None
property managing property - 812.019(1)
and
trafficking
812.13(2)(a) Robbery with a Robbery with a Attempt
firearm or weapon - 812.13(2)(b) Grand theft 1st
deadly weapon Robbery degree - 812.014(2)(a)
812.13(2)(c) Grand theft 2d degree - 812.014(2)(b)
Petit theft - Grand theft 3d degree - 812.014(2)(c)
812.014(3)(a) Petit theft - 812.014(2)(e)
Battery - 784.03
Aggravated battery - 784.045
Assault - 784.011
Aggravated assault - 784.021
Display of firearm - 790.07
Resisting a Merchant - 812.015(6)
812.13(2)(b) Robbery with a Robbery - 812.13(2)(c) Attempt
weapon Petit theft-812.014(3)(a) Grand theft 1st
degree - 812.014(2)(a)
Grand theft 2d degree - 812.014(2)(b)
Grand theft 3d degree - 812.014(2)(c)
Petit theft - 812.014(2)(e)
Battery - 784.03
Aggravated battery - 784.045
Assault - 784.011
*133
Display of weapon - 790.07(1)
Resisting a merchant - 812.015(6)
812.13(2)(c) Robbery Petit theft-812.014(3)(a) Attempt
812.013(2)(b) Grand theft 1st degree - 812.014(2)(a)
Grand theft 2d degree - 812.014(2)(b)
Grand theft 3d degree - 812.014(2)(c)
Petit theft - 812.014(2)(e)
Battery - 784.03
Assault - 784.011
Aggravated assault - 784.021
Resisting a merchant - 812.015(6)
812.135 Home invasion Robbery -812.13(2)(c) Petit theft -812.014(2)(e)
robbery Petit theft-812.014(3)(a)
817.233 Burning to defraud None None
insurer
817.563 Sale of substance None Attempt
in place
of a controlled
substance
826.04 Incest None Attempt
827.03(1)(a) Aggravated None Attempt
child abuse child abuse - 827.04(1)
Battery - 784.03 only
under certain circumstances
see Kama v.
State, 507 So.2d 154
(Fla. 1st DCA 1987)
827.03(1)(b) Aggravated None Attempt
827.03(1)(c) child Child abuse - 827.04(1)
827.03(1)(d) abuse Battery - 784.03: only
827.04(3) Contributing to None Attempt
child delinquency
or dependency
or to child in
need of services
827.071(2) Sexual None Attempt
performance by Sexual performance by a
a child child - 827.071(5)
827.071(3) Sexual None Attempt
performance by Sexual performance by a
a child child - 827.071(5)
827.071(4) Sexual Sexual Attempt
performance by performance by a
a child child - 827.071(5)
827.071(5) Sexual None Attempt
performance by
a child
*134
831.01 Forgery None Attempt
831.02 Uttering forged None None
instrument
832.04 Stopping payment; None Attempt, except when
purchase uttering is charged - 832.04
of farm or grove under $150
products
832.041 Stopping payment None Attempt, except when
with intent uttering is charged
to defraud 832.04 if farm or grove
product
832.041 under $150
Worthless check - 832.05(2)
(first degree
misdemeanor)
832.05(2) Worthless None Attempt, except when
checks uttering is charged
832.05(2) under $150
832.05(4) Obtaining property Worthless check-832.05(2) Attempt
by worthless
checks
837.012 Perjury not in None None
official proceeding
837.02 Perjury in official None None
proceeding
837.021 Perjury by contradictory None None
statements
837.05 False reports to None None
law enforcement
authorities
837.06 False official None None
statements
838.015(1) Bribery of public None Attempt if only "give" is
servant charged
838.015 Bribery None Attempt if only "accept"
is charged
838.016(1) Bribery by a None Attempt if only "give" or
public servant "accept" is charged
838.016 Unlawful compensation None Attempt if only "give" or
for official "accept" is charged
behavior
838.021 Corruption by None Attempt if only harm is
threat against charged
public servant
838.12(1) Bribery in athletic None Attempt if only give is
contests charged
838.12(2) Bribery in athletic None Attempt if only accept is
contests charged
843.01 Resisting officer None Resisting officer without
with violence violence - 843.02
843.02 Resisting officer None Attempt
without violence
849.01 Keeping gambling None Lottery - 849.09(1)(f)
house Lottery - 849.09(1)(k)
*135
Lottery - 849.11
849.01 Maintaining a None Lottery - 849.09(1)(f)
(849.02) gambling Lottery - 849.09(1)(k)
establishment Lottery - 894.11
849.01 Permitting None Lottery - 849.09(1)(f)
(849.02) gambling Lottery - 849.09(1)(k)
Lottery - 849.11
849.02 Agents, None Lottery - 849.09(1)(f)
servants, etc., of Lottery - 849.09(1)(k)
keeper of gambling
house
849.02 Renting house None None
for gambling
purposes
849.03 Renting space None None
for gambling
849.04 Permitting minors None Permitting gambling on
and persons billiard or pool table by
under holder of license - 849.07
guardianship to Playing at games of
gamble chance by lot - 849.11
849.08 Gambling None None
849.09(1)(a) Lottery None Lottery - 849.09(1)(f)
Lottery - 849.09(1)(g)
Lottery - 849.09(1)(h)
Lottery - 849.09(1)(i)
Lottery - 849.09(1)(j)
Lottery - 849.09(1)(k)
Playing at game of
chance by lot - 849.11
Gambling devices, etc. - 849.231
849.09(1)(b) Lottery None Lottery - 849.09(1)(f)
Lottery - 849.09(1)(g)
Lottery - 849.09(1)(h)
Lottery - 849.09(1)(i)
Lottery - 849.09(1)(j)
Lottery - 849.09(1)(k)
Gambling devices, etc. - 849.231
849.09(1)(c) Lottery None Lottery - 849.09(1)(f)
Lottery - 849.09(1)(g)
Lottery - 849.09(1)(h)
Lottery - 849.09(1)(i)
Lottery - 849.09(1)(j)
Lottery - 849.09(1)(k)
Gambling devices, etc. - 849.231
849.09(1)(d) Lottery None Lottery - 849.09(1)(f)
Lottery - 849.09(1)(g)
Lottery - 849.09(1)(h)
Lottery - 849.09(1)(i)
Lottery - 849.09(1)(j)
Lottery - 849.09(1)(k)
*136
Playing at games of
chance by lot - 849.11
Gambling devices, etc. - 849.231
849.09(1)(g) Lottery None None
849.09(1)(h) Lottery None None
849.09(1)(k) Lottery None None
849.14 Betting None None
849.25 Bookmaking None Attempt
(1) and (2)
893.13(1)(a) Sale, manufacture, None Attempt, except when
delivery or delivery is charged
possession with 893.13(3) if delivery of
intent to sell, cannabis is charged;
manufacture or 893.13(6)(b) if possession
deliver controlled of cannabis is charged;
substance 893.13(6)(a) - if possession
is charged and offense
would be a second
degree felony under
893.13(1)(a)1.
893.13(1)(b) Sale or delivery Sale or delivery of Attempt, except when
or possession of controlled substance delivery is charged
more than 10 - 893.13(1)(a) 893.13(6)(a) if possession
grams of controlled is charged
substance
893.13(1)(c) Sale, manufacture, Sale, manufacture, Attempt, except when
delivery, delivery, etc. delivery is charged;
etc. near public - 893.13(1)(a) 893.13(6)(a) if possession
or private elementary, is charged and the offense
middle, would be a second
or secondary degree felony under
school 893.13(1)(a); 893.13(6)(b)
if possession of cannabis
is charged; 893.13(3) if
delivery of cannabis is
charged
893.13(1)(d) Sale, manufacture Sale, manufacture, Attempt, except when
delivery, delivery, etc. delivery is charged;
etc. near a college, - 893.13(1)(a) 893.13(6)(a) if possession
university, is charged and the offense
other post-secondary would be a second
educational degree felony under
institution 893.13(1)(a)1;
or public 893.13(6)(b) if possession
park of cannabis is charged;
893.13(3) if delivery of
cannabis is charged.
893.13(2)(a) Purchase or None Attempt;
possession with 893.13(6)(a) if possession
intent to purchase is charged and the offense
controlled would be a second
substance degree felony under
893.13(2)(a)1 893.13(6)(b)
if possession of cannabis
is charged
893.13(2)(b) Purchase in excess 893.13(2)(a) purchase Attempt
of 10 grams of less than
*137
of a controlled 10 grams
substance
893.13(3) Delivery without None None
consideration
not more than
20 grams of cannabis
893.13(4) Delivery of controlled None 893.13(1)(a); 893.13(3) if
substance delivery of cannabis is
to person charged.
under 18 years
old, etc.
893.13(5) Bringing controlled None Attempt
substance 893.13(6)(a); 893.14(3) if
into state delivery of cannabis
charged; 893.13(6)(b) if
possession of cannabis
charged.
893.13(6)(a) Possession of None Attempt; 893.13(3) if delivery
controlled substance of cannabis
stance charged; 893.13(6)(b) if
possession of cannabis
charged.
893.13(6)(b) Possession of None Attempt
not more than
20 grams of cannabis
893.13(6)(c) Possession in Possession of less Attempt 893.13(6)(b) if
excess of 10 than 10 grams possession of cannabis
grams of controlled 893.13(6)(a) charged;
substance
893.13(7)(a) 1, Distribute or None Attempt
2, 3, 4, 5, 6, 7, dispense a controlled
8, 10 and 11 substance,
etc.
893.13(7)(a) 9 Obtaining controlled None None
substances
by fraud
893.135(1)(a) Trafficking in Trafficking offenses Attempt, (but not conspiracy),
cannabis requiring except when
lower quantities of delivery is charged
cannabis-893.135(1)(a) 893.13(1)(a) if sale, manufacture
1 and 2 or delivery is
charged
893.13(2)(a) - if purchase
is charged
Bringing cannabis into
state - 893.13(5)
Possession of cannabis - 893.13(6)(a)
- 893.13(6)(b)
if less than
20 grams of cannabis
Delivery of less than 20
grams of cannabis - 893.13(3)
893.135(1)(b) Trafficking in Trafficking offenses Attempt (but not conspiracy),
1&2 cocaine requiring except when
lower quantities of delivery is charged;
*138
cocaine 893.13(1)(a) if sale, manufacture
893.135(1)(b)1 or delivery
is charged;
893.13(2)(a) if purchase
is charged;
Bringing cocaine into
state 893.13(5);
Possession of cocaine
893.13(6)(a).
893.135(1)(c) Trafficking in illegal Trafficking offenses Attempt (but not conspiracy),
1&2 drugs requiring except when
lower quantities of delivery is charged;
illegal drugs - 893.13(1)(a) if sale,
893.135(1)(c)1 manufacture or delivery
is charged;
893.13(2)(a) if purchase
is charged;
Bringing same illegal
drug as charged into
state - 893.13(5)
Possession of same illegal
drug - 893.13(6)(a).
893.135(1)(d) 1 Trafficking in Trafficking offenses Attempt (but not conspiracy),
phencyclidine requiring except when
lower quantities of delivery is charged
phencyclidine - 893.13(1)(a) if sale, manufacture
892.135(1)(d)1. or delivery
and b. is charged
893.13(2)(a) - if purchase
is charged;
Bringing phencyclidine
into state - 893.13(5);
Possession of phencyclidine
- 893.13(6)(a)
893.135(1)(e)1 Trafficking in Trafficking offenses Attempt (but not conspiracy),
methaqualone requiring except when
lower quantities of delivery is charged
methaqualone - 893.13(1)(a) if sale, manufacture
893.135(1)(e)1.a and or delivery is
b. charged
893.13(2)(a) - if purchase
is charged
Bringing methaqualone
into state - 893.13(5)
Possession of methaqualone
- 893.13(6)(a)
893.135(1)(f)1 Trafficking in Trafficking offenses Attempt (but not conspiracy),
amphetamine requiring except when
lower quantities of delivery is charged
amphetamine - 893.13(1)(a) - if sale,
893.135(1)(f)1 a&b manufacture or delivery
is charged;
893.13(2)(a) - if purchase
is charged;
Bringing amphetamine
into state - 893.13(5);
Possession of amphetamine
- 893.13(6)(a)
*139
893.147(1) Possession of None Attempt
drug paraphernalia
893.147(2) Delivery, possession None Attempt, except when
with intent delivery is charged.
to deliver,
or manufacture
with intent to
deliver drug
paraphernalia
893.147(3) Delivery of drug None None
paraphernalia to
a minor
893.147(4) Advertisement None None
of drug paraphernalia
893.149 Unlawful possession, None Attempt
etc., of
listed chemical
895.03(1) RICO - Use or None None
investment of
proceeds from
pattern of racketeering
activity
895.03(1) RICO - Use or None None
investment of
proceeds from
collection of unlawful
debt
895.03(2) RICO - Acquisition None None
or maintenance
through
pattern of racketeering
activity
895.03(2) RICO - None None
Acquisition or
maintenance
through collection
of unlawful
debt
895.03(3) RICO - Conduct None None
or participation
in an enterprise
through collection
of unlawful
debt
895.03(3) RICO - Conduct None None
or participation
in an enterprise
through a pattern
of racketeering
activity
895.03(4) Conspiracy to None None
engage in pattern
of racketeering
activity
944.40 Escape None None
*140
944.47 Contraband in None Possession of less than
state correctional 20 grams cannabis - 893.13(6)(b)
institution
951.22 Contraband in None Possession of less than
county detention 20 grams cannabis - 893.13(6)(b)
facilities
DURESS OR NECESSITY
An issue in this case is whether (defendant) acted out of
[duress][necessity] in committing the crime of (crime charged)
(lesser included offenses).
It is a defense to the (crime charged) (lesser included offenses) if
the defendant acted out of [duress] [necessity]. In order to find
the defendant committed the (crime charged) (lesser included
offense) out of [duress][necessity], you must find the following
six elements:
1. the defendant reasonably believed [a danger][an emergency]
existed which was not intentionally caused by
[himself][herself].
2(a). the [danger][emergency] threatened significant harm to
[himself][herself][a third person]. (or)
Give 2(b) if 2(b). the [danger][emergency] threatened death or serious
escape bodily injury.
charged
3. The threatened harm must have been real, imminent and
impending.
Give 4(a) 4(a). the defendant had no reasonable means to avoid the
if escape [danger][emergency] except by committing the (crime
not charged charged) (lesser included offenses).
Note to If escape is charged, the court must first determine whether the
Judge defendant has satisfied the conditions precedent enumerated in
Muro v. State, 445 So. 2d 374 (Fla. 3d DCA 1984) and Alcantaro v.
State, 407 So. 2d 922 (Fla. 1st DCA 1981) and if so, give 4b.
4(b). the defendant left
[the place of [his][her] confinement][the vehicle in
which [he][she] was being transported]
[to][from][his][her] work on a public road]
because [he][she] reasonably believed that escape
was necessary to avoid the danger of death or
serious injury, rather than with the intent to elude
lawful authority.
5. the (crime charged) (lesser included offenses) must
have been committed out of [duress][necessity] to
avoid the [danger][emergency].
6. The harm that the defendant avoided must outweigh
the harm caused by committing the (crime
charged) (lesser included offenses).
*141
Definitions "Imminent and impending" means the [danger][emergency]
is about to take place and cannot be avoided by using other
means. A threat of future harm is not sufficient to prove this
defense. Nor can the defendant use the defense of [duress][necessity]
if [he][she] committed the crime after the danger from
the threatened harm had passed.
The reasonableness of the defendant's belief that [a danger][an
emergency] existed should be examined in the light of
all the evidence.
In deciding whether it was necessary for the defendant to
commit the (crime charged) (lesser included offenses), you must
judge the defendant by the circumstances by which [he][she]
was surrounded at the time the crime was committed.
The [danger][emergency] facing the defendant need not
have been actual; however to justify the commission of the
(crime charged) (lesser included offenses), the appearance of the
[danger][emergency] must have been so real that a reasonably
cautious and prudent person under the same circumstances
would have believed that the [danger][emergency] could be
avoided only by committing the (crime charged) (lesser included
offenses). Based upon appearances, the defendant must have
actually believed that the [danger][emergency] was real.
If you find from the evidence that the defendant committed
the (crime charged) (lesser included offenses) out of [duress][necessity],
you should find the defendant not guilty.
However if you find that the defendant did not commit the
(crime charged) (lesser included offenses) out of [duress][necessity]
you should find the defendant guilty if all the elements of
the charge have been proved.
Note to Duress is not a defense to an intentional homicide. See Wright v.
Judge State, 402 So. 2d 193 (Fla. 3d DCA 1981).
PENALTY PROCEEDINGS-CAPITAL CASES
After the first paragraph on page 114 of the manual, the following additional
language is proposed:
Note to Give before a new penalty phase jury
Judge
[A reasonable doubt is not a mere possible doubt, a speculative,
imaginary or forced doubt. Such a doubt must not influence
you to disregard an aggravating circumstance if you have
an abiding conviction that it exists. On the other hand, if, after
carefully considering, comparing and weighing all the evidence,
you do not have an abiding conviction that the aggravating
circumstance exists, or if, having a conviction, it is one which is
not stable but one which wavers and vacillates, then the aggravating
not stance has not been proved beyond a reasonable0
doubt and you should disregard it, because the doubt is reasonable.
It is to the evidence introduced in this proceeding, and to it
alone, that you are to look for that proof.
*142
A reasonable doubt as to the existence of an aggravating
circumstance may arise from the evidence, conflicts in the
evidence or the lack of evidence.
If you have a reasonable doubt as to the existence of an
aggravating circumstance, you should find that it does not exist.
However, if you have no reasonable doubt, you should find that
the aggravating circumstance does exist and give it whatever
weight you feel it should receive.]
3.04(c)(2) ENTRAPMENT
Note to This instruction is to be used for offenses occurring on or
Judge after October 1, 1987.
The defense of entrapment has been raised. (Defendant) was
entrapped if
1. [he] [she] was, for the purpose of obtaining evidence
of the commission of a crime, induced or encouraged
to engage in conduct constituting the crime of (crime
charged), and
2. [he] [she] engaged in such conduct as the direct result
of such inducement or encouragement, and
3. the person who induced or encouraged [him] [her] was
a law enforcement officer or a person engaged in
cooperating with or acting as an agent of a law
enforcement officer, and
4. the person who induced or encouraged [him] [her]
employed methods of persuasion or inducement which
created a substantial risk that the crime would be
committed by a person other than one who was ready
to commit it, and
5. (defendant) was not a person who was ready to commit
the crime.
When claim It is not entrapment if (defendant) had the predisposition to
of entrapment commit the (crime charged). (Defendant) had the predisposition
no defense if before any law enforcement officer or person acting for the
er persuaded, induced, or lured (defendant), [he] [she] had a
ness or willingness to commit (crime charged) if the opportunity
nted itself.
When claim It is also not entrapment merely because a law enforcement
of entrapment officer in a good faith attempt to detect crime
no defense
Give a, b, (a) [provided the defendant the opportunity, means and
or c as facilities to commit the offense, which the defendant
applicable intended to commit and would have committed otherwise.]
(b) [used tricks, decoys or subterfuge to expose the defendant's
oriminal acts.]
(c) [was present and pretending to aid or assist in the
commission of the offense.]
On the issue of entrapment, the defendant must prove to
you by a preponderance the greater weight of the evidence that
his criminal conduct occurred as the result of entrapment. a
law enforcement officer or agent induced or encouraged the
crime charged. Greater weight of the evidence means that
evidence which is more persuasive and convincing. If the defendant
does so, the State must prove beyond a reasonable doubt
*143
that the defendant was predisposed to commit the (crime charged).
The state must prove defendant's predisposition to commit the
(crime charged) existed prior to and independent of the enducement
or encouragement.
Give if An informant is an agent of law enforcement for purposes
applicable of the entrapment defense.
If you find that the defendant was entrapped, you should
find the defendant not guilty of (crime charged). If, however,
you find that the defendant was not entrapped, you should find
the defendant guilty if all of the elements of the charge have
been proved.
Note to This instruction should be given only if there is some evidence of
Judge the defendant's lack of predisposition to commit the crime. See
Munoz v. State, 629 So.2d 90 (Fla. 1993).
FALSE IMPRISONMENT
F.S. 787.02
Before you can find the defendant guilty of False Imprisonment,
the State must prove the following threetwo elements
beyond a reasonable doubt:
Elements 1. (Defendant) [forcibly] [secretly] [by threat] [confined]
[abducted] [imprisoned] [restrained] (victim) against
[his] [her] will.
2. (Defendant) had no lawful authority.
Give (a),(b), 3. (Defendant) acted for any purpose other than to:
(c) or (d) as
applicable
a. hold for ransom or reward or as a shield or
hostage.
b. commit or facilitate commission of any felony,
c. inflict bodily harm upon or to terrorize the victim
or another person.
d. interfere with the performance of any governmental
or political function.
Read only if Confinement of a child under the age of thirteen (13) is
confinement against [his] [her] will if such confinement is without the
is consent of [his] [her] parent or legal guardian.
alleged and
child is
under 13
thirteen years
of age.
FELONY DUIPRIOR CONVICTIONS
F.S. 316.193(2)(b)
Before you can find the defendant guilty of DUI, the State
must prove the following two elements beyond a reasonable
doubt:
Elements 1. (Defendant) drove or was in actual physical control of
a vehicle.
2. While driving or in actual physical control of the
vehicle, (defendant)
Give 2a a. [ was under the influence of [alcoholic beverages]
and/or 2b as [a chemical substance] [a controlled substance] to
*144
applicable the extent that [his] [her] normal faculties were
impaired.] or
b. [had a blood or breath alcohol level of 0.10 0.08
percent or higher.]
Definitions; "Vehicle" is any device in, upon, or by which any person or
give as property is or may be transported or drawn upon a highway,
applicable except devices used exclusively upon stationary rails or tracks.
F.S.
316.003(75) "Normal faculties" mean those faculties of a person, such
as include but are not limited to the ability to see, hear, walk,
talk, judge distances, drive an automobile, make judgments, act
in emergencies and, in general, to normally perform the many
mental and physical acts of our daily lives.
"Actual physical control of a vehicle" means the defendant
must be physically in or on the vehicle and have the capability to
operate the vehicle, regardless of whether [he] [she] is actually
operating the vehicle at the time.
"Alcoholic beverages" are considered to be substances of
any kind and description which contain alcohol.
F.S. ( ) is a chemical substance under Florida law.
877.111(1)
Ch. 893, ( ) is a controlled substance under Florida law.
Note to In appropriate cases, an instruction may be given on one or
Judge more of the presumptions of impairment established by F.S.
316.1934(2)(a), (2)(b), and (2)(c), as follows:
(2)(a)1. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.05 percent or less, you
shall presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] or [her] normal
faculties were impaired.
(2)(b)2. If you find from the evidence that the defendant
had a blood or breath alcohol level in excess of 0.05 percent but
less than 0.08 percent, you may consider that evidence with other
competent evidence in determining whether the defendant was
under the influence of alcoholic beverages to the extent that
[his] or [her] normal faculties were impaired; or,
(2)(c)3. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.08 percent or more, that
evidence would be sufficient by itself to establish that the
defendant was under the influence of alcohol to the extent that
[his] or [her] normal faculties were impaired. However, such
evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other
evidence presented in deciding whether the defendant was under
the influence of alcoholic beverages to the extent that [his] or
[her] normal faculties were impaired.
Defense of It is a defense to the charge of driving or being in actual
inoperability; physical control of a vehicle while under the influence if at the
give if applicable time of the alleged offense the vehicle was inoperable.
*145
However, it is not a defense if, while impaired, the defendant
drove or was in actual physical control of the vehicle before
it became inoperable.
Therefore, if you are not convinced beyond a reasonable
doubt that the vehicle was operable at the time of the alleged
offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable
at the time of the alleged offense, then you should find the
defendant guilty if all the other elements of the charge have
been proved beyond a reasonable doubt.
FELONY DUI- SERIOUS BODILY INJURY
F.S. 316.193(3)(c)(2)
Before you can find the defendant guilty of DUI with
Causing Serious Bodily Injury, the State must prove the following
three elements beyond a reasonable doubt:
Elements 1. (Defendant) drove or was in actual physical control of
a vehicle.
2. While driving or while in actual physical control of
the vehicle, (defendant)
Give 2a or a. [was under the influence of [alcoholic beverages]
2b as [a chemical substance] [a controlled substance] to
applicable the extent that [his] [her] normal faculties were
impaired.] or
b. [had a blood or breath alcohol level of 0.10 0.08
percent or higher.]
3. As a result (defendant) caused serious bodily injury to
(victim).
Definitions; "Vehicle" is any device in, upon, or by which any person or
give as property is or may be transported or drawn upon a highway,
applicable except devices used exclusively upon stationary rails or tracks.
F.S. "Normal faculties" mean those faculties of a person, such
316.003(75) as include but are not limited to the ability to see, hear, walk,
talk, judge distances, drive an automobile, make judgments, act
in emergencies and, in general, to normally perform the many
mental and physical acts of our daily lives.
"Actual physical control of a vehicle" means the defendant
must be physically in or on the vehicle and have the capability to
operate the vehicle, regardless of whether [he][she] is actually
operating the vehicle at the time.
"Alcoholic beverages" are considered to be substances of
any kind and description which contain alcohol.
F.S. ( ) is a chemical substance under Florida law.
877.111(1)
Ch. 893, ( ) is a controlled substance under Florida law.
F.S.
F.S. 316.1933 "Serious bodily injury" means a physical condition that
creates a substantial risk of death, serious personal disfigurement,
or protracted loss or impairment of the function of any
bodily member or organ.
Note to In appropriate cases, an instruction may be given on one or
Judge more of the presumptions of impairment established by F.S.
316.1934(2)(a), (2)(b), and (2)(c), as follows:
*146
(2)(a)1. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.05 percent or less, you
shall presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] or [her] normal
faculties were impaired.
(2)(b)2. If you find from the evidence that the defendant
had a blood or breath alcohol level in excess of 0.05 percent but
less than 0.08 percent, you may consider that evidence with other
competent evidence in determining whether the defendant was
under the influence of alcoholic beverages to the extent that
[his] or [her] normal faculties were impaired; or
(2)(c)3. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.08 percent or more, that
evidence would be sufficient by itself to establish that the
defendant was under the influence of alcohol to the extent that
[his] or [her] normal faculties were impaired. However, such
evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other
evidence presented in deciding whether the defendant was under
the influence of alcoholic beverages to the extent that [his] or
[her] normal faculties were impaired.
Defense of It is a defense to the charge of driving or being in actual
inoperability; physical control of a vehicle while under the influence if at the
give if applicable time of the alleged offense the vehicle was inoperable.
However, it is not a defense if, while impaired, the defendant
drove or was in actual physical control of the vehicle before
it became inoperable.
Therefore, if you are not convinced beyond a reasonable
doubt that the vehicle was operable at the time of the alleged
offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable
at the time of the alleged offense, then you should find the
defendant guilty if all the other elements of the charge have
been proved beyond a reasonable doubt.
DUI MANSLAUGHTER
F.S. 316.193(3)(c)3
Before you can find the defendant guilty of DUI Manslaughter,
the State must prove the following three elements beyond a
reasonable doubt:
Elements 1. (Defendant) operated drove or was in actual physical
control of a vehicle.
See Magaw 2. (Defendant), by reason of such operation, caused or
v. State, contributed to the cause of the death of (victim). While
537 So.2d driving or while in actual physical control of the
564 (Fla. vehicle, (defendant)
1989)
Give 2(a) or a. was under the influence of [alcoholic beverages]
2(b) as [a chemical substance] [a controlled substance] to
applicable the extent that [his] [her] normal faculties were
impaired, or
b. had a blood or breath alcohol level of 0.08 or
higher.
Give 3a and 3. At the time of such operation(defendant)
or 3b as applicable
a. [was under the influence of [alcoholic beverages]
[a chemical substance] [a controlled substance]
to
*147
the extent that [his] [her] normal faculties were
impaired.]
b. [had a blood or breath alcohol level of 0.10 percent
or higher.]
See Magaw As a result, (defendant) caused or contributed to the
v. State, cause of the death of (victim).
537 So.2d
564 (Fla.
1989)
Definitions; "Vehicle" is any device in, upon, or by which any person or
give as property is or may be transported or drawn upon a highway,
applicable except devices used exclusively upon stationary rails or tracks.
F.S. "Normal faculties" mean those faculties of a person such as
316.003(75) include but are not limited to the ability to see, hear, walk, talk,
judge distances, drive an automobile, make judgments, act in
emergencies and, in general, to normally perform the many
mental and physical acts of our daily lives.
"Actual physical control of a vehicle" means the defendant
must be physically in or on the vehicle and have the capability to
operate the vehicle, regardless of whether [he] [she] is actually
operating the vehicle at the time.
"Alcoholic beverages" are considered to be substances of
any kind and description which contain alcohol.
F.S. ( ) is a chemical substance under Florida law.
877.111(1)
Ch. 893, ( ) is a controlled substance under Florida law.
F.S.
Note to In appropriate cases, an instruction may be given on one or
Judge more of the presumptions of impairment established by F.S.
316.1934(2)(a), (2)(b), and (2)(c), as follows:
(2)(a)1. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.05 percent or less, you
shall presume that the defendant was not under the influence of
alcoholic beverages to the extent that [his] or [her] normal
faculties were impaired.
(2)(b)2. If you find from the evidence that the defendant
had a blood or breath alcohol level in excess of 0.05 percent but
less than 0.08 percent, you may consider that evidence with other
competent evidence in determining whether the defendant was
under the influence of alcoholic beverages to the extent that
[his] or [her] normal faculties were impaired; or,
(2)(c)3. If you find from the evidence that the defendant
had a blood or breath alcohol level of 0.08 percent or more, that
evidence would be sufficient by itself to establish that the
defendant was under the influence of alcohol to the extent that
[his] or [her] normal faculties were impaired. However, such
evidence may be contradicted or rebutted by other evidence.
These presumptions may be considered along with any other
evidence presented in deciding whether the defendant was under
the influence of alcoholic beverages to the extent that [his] or
[her] normal faculties were impaired.
Defense of It is a defense to the charge of driving or being in actual
inoperability; physical control of a vehicle while under the influence if at the
give if applicable time of the alleged offense the vehicle was inoperable,
However, it is not a defense if, while impaired, the defendant
drove or was in actual physical control of the vehicle before
it became inoperable.
*148
Therefore, if you are not convinced beyond a reasonable
doubt that the vehicle was operable at the time of the alleged
offense, you should find the defendant not guilty.
However, if you are convinced that the vehicle was operable
at the time of the alleged offense, then you should find the
defendant guilty if all the other elements of the charge have
been proved beyond a reasonable doubt.
UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS
F.S. 794.05 [NEW]
Before you can find the defendant guilty of sexual activity
with a minor, the State must prove the following three elements
beyond a reasonable doubt:
Elements 1. (Victim) was 16 or 17 years of age.
2. (Defendant) was age 24 or older.
3. [(Defendant) engaged in sexual activity with a minor in
which the sexual organ of the [(defendant)] [(victim)]
penetrated or had union with the [anus] [vagina]
[mouth] of the [(victim)] [(defendant)].
Give if Sexual activity does not include an act done for a bona fide
applicable medical purpose.
NOTES
[1] The revised schedule completely replaces the present version. The entire schedule, which is included in the appendix to this opinion, has been reorganized chronologically by statute number and also includes substantive changes.
Related
Hill v. State
873 So. 2d 491 (District Court of Appeal of Florida, 2004)
Knight v. State
338 So. 2d 201 (Supreme Court of Florida, 1976)
Kama v. State
507 So. 2d 154 (District Court of Appeal of Florida, 1987)
State v. Alcantaro
407 So. 2d 922 (District Court of Appeal of Florida, 1981)
Magaw v. State
537 So. 2d 564 (Supreme Court of Florida, 1989)
Munoz v. State
629 So. 2d 90 (Supreme Court of Florida, 1993)
Muro v. State
445 So. 2d 374 (District Court of Appeal of Florida, 1984)
Williams v. Aetna Ins. Co.
402 So. 2d 192 (Louisiana Court of Appeal, 1981)
Brown v. State
206 So. 2d 377 (Supreme Court of Florida, 1968)
State v. Carpenter
417 So. 2d 986 (Supreme Court of Florida, 1982)
Ray v. State
403 So. 2d 956 (Supreme Court of Florida, 1981)
Standard Jury Instructions in Criminal Cases (97-2)
723 So. 2d 123 (Supreme Court of Florida, 1998)
Cite This Page — Counsel Stack
Bluebook (online)
723 So. 2d 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/standard-jury-instructions-fla-1998.