Summary
adding instructions for sections 782.051 and, and expressly providing that neither section includes lesser offenses
Summary of this case from Rodgers v. StateOpinion
No. SC06-2303.
July 12, 2007.
Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has filed a report, proposing amendments to Standard Jury Instructions in Criminal Cases 8.4 — Aggravated Battery; 8.10 — Assault on Law Enforcement Officer or Firefighter; 8.11 — Battery on Law Enforcement Officer or Firefighter; 8.12 — Aggravated Assault on Law Enforcement Officer or Firefighter; 8.13 — Aggravated Battery on Law Enforcement Officer or Firefighter; 8.14 — Aggravated Battery on Person 65 Years of Age or Older; 11.1 — Sexual Battery — Victim Less than 12 Years of Age; 13.1 — Burglary; 14.2 — Dealing in Stolen Property (Fencing); 14.3 — Dealing in Stolen Property (Organizing); and 27.1 — Escape. The Committee also proposes new instructions 6.3 — Attempted Felony Murder; 6.3(a) — Attempted Felony Murder — Injury Caused by Another; 8.4(a) — Aggravated Battery (Pregnant Victim); 10.16 — Use of a Firearm While Under the; Influence; 13.5(a) — Trespass on School Grounds or Facilities; 13.5(b) — Trespass on School Grounds or Facilities after Warning by Principal or Designee; 20.13 — Fraudulent Use or Possession of Personal Identification Information; 20.14 — Harassment by Use of Personal Identification Information; 20.15 — Fraudulent Use of Personal Identification Information of a Minor; 20.16 — Fraudulent Use of Personal Identification Information of a Minor by a, Parent or Guardian; 20.17 — Fraudulent Use or Possession of Personal Identification Information Concerning a Deceased Individual; and 20.18 — Fraudulent Creation, Use or Possession of Counterfeit Personal Identification Information. The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. We have jurisdiction. See art. V, § 2(a), Fla. Const.
We decline to authorize proposed new instructions 20.13 — Fraudulent Use or Possession of Personal Identification Information, and 20.17 — Fraudulent Use or Possession of Personal Identification Information Concerning a Deceased Individual. Unlike the other instructions pertaining to the unlawful use or possession of personal identification information, these proposed instructions include provisions for an enhanced penalty based upon the use of a public record to facilitate or further the identity theft, pursuant to sections 817.568(5) and (10), as well as based upon the pecuniary benefit, value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated, or the number of individuals victimized. See §§ 817.568(2)(b) and (c); 817.568(8)(b) and (c), Fla. Stat. While the basis for the enhanced penalty under sections 817.568(2) and 817.568(8) is fraudulent use, an enhancement under section 817.568(5) or section 817.568(10) does not require fraudulent use. However, proposed new instructions 20.13 and 20.17 cite sections 817.568(5) and 817.568(10), and state "Give if applicable and Fraudulent Use is charged." We are concerned that these proposed instructions fail to distinguish between the two distinct bases for application of an enhanced penalty, i.e., use of a public record to facilitate or further the identity theft, as distinguished from fraudulent use of personal identification information in respect to the pecuniary benefit, value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated, or the number of individuals victimized. Therefore, we refer these proposed instructions back to the Committee to address this issue.
Having considered the Committee's report and one comment filed, we hereby authorize the publication and use of the other proposals, as set forth in the appendix to this opinion, with minor modifications. In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and 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. New language is indicated by underlining, and deleted language is struck-through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.
The amendments to instructions 14.2 — Dealing in Stolen Property (Fencing) and 14.3 — Dealing in Stolen Property (Organizing), add the four inferences enacted under sections 812.022(2)-(5), Florida Statutes, pertaining to evidence of dealing in stolen property. Subsequent to the Committee's approval of its proposed changes to instructions 14.2 and 14.3, on June 7, 2006, Chapter 2006-107, section 1, Laws of Florida, was signed into law, creating an additional inference in respect to evidence of dealing in stolen property, i.e., specific to possession of a stolen motor vehicle. See § 812.022(6), Fla. Stat. (2006). Because it appears that the Committee intended to incorporate all inferences created by section 812.022, Florida Statutes, relating to dealing in stolen property, instructions 14.2 and 14.3 are modified to include the inference under section 812.022(6), Florida Statutes (2006).
In addition, new instructions 20.14 — Harassment by Use of Personal Identification Information; 20.15 — Fraudulent Use of Personal Identification Information of a Minor; 20.16 — Fraudulent Use of Personal Identification Information of a Minor by a Parent or Guardian; and 20.18 — Fraudulent Creation, Use or Possession of Counterfeit Personal Identification Information, are modified to include the term "telephone number" under "Personal identification information" at the beginning of the fourth line, to bring the definition into accord with section 817.568(1)(f)1, Florida Statutes (2006).
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
APPENDIX
6.3 ATTEMPTED FELONY MURDER —FIRSTDEGREE[ENUMERATED FELONY] [NON-ENUMERATEDFELONY]
§§ 782.04(1)(a) and 777.04§ 782.051(1) and (2), Fla. Stat.
The instructions on attempted first and third degreefelony murder have been deleted. See State v. Gray,654 So.2d 552 (Fla. 1995).To prove the crime of Attempted Felony Murder, the Statemust prove the following three elements beyond a reasonabledoubt:
1.(Defendant)[committed][attempted to commit] a(crime alleged).
2.While engaged in the [commission][attempted commission] [escape from the immediatescene] of(crime alleged), thedefendant [committed] [aided or abetted] anintentional act that is not an essential elementof(crime alleged).
3. This intentional act could have but did notcause the death of(victim).(Crime alleged)is defined by Florida lawas(define the crime).In order to convict(defendant)ofAttempted Felony Murder, it is not necessary for the State toprove that [he] [she] had a premeditated design or intent tokill.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
Section 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section 782.04(3). Section 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section 782.04(3), Fla. Stat.This instruction was adopted in 2007. See Battle v. State, 911 So.2d 85 (Fla. 2005).
6.3(a) ATTEMPTED FELONY MURDER INJURY CAUSED BYANOTHER§ 782.051(3) Fla. Stat.
To prove the crime of Attempted Felony Murder, the Statemust prove the following two elements beyond a reasonabledoubt:
1.(Defendant)[committed] [attempted to commit] a(crime alleged).
2.(Victim)was injuredduring the [commission] [attempted commission] of anescape from the immediate scene of the(crime alleged)by an individual otherthan the person(s) [committing] [attempting to commit][escaping from the immediate scene of] the(crime alleged).(Crime alleged)is defined by Florida lawas(define the crime).In order to convict the defendant of attempted felonymurder, it is not necessary for the state to prove that thedefendant had a premeditated design or intent to kill.
Lesser Included Offenses
No lesser included offenses have been identified for this offense
Comment
Section 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in section 782.04(3).This instruction was adopted in 2007.
8.4 AGGRAVATED BATTERY § 784.045, Fla. Stat.
To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.1. (Defendant)
[intentionally touched or struck (victim) against [his] [her] will].
[intentionally caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a.[intentionally or knowingly caused
[great bodily harm to (victim)]].
[permanent disability to (victim)]].
[permanent disfigurement to (victim)]].
b.[used a deadly weapon.]
c. [knew or should have known that(victim)was pregnant.]
Definition. Give if 2b alleged.A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.Lesser Included Offenses ______________________________________________________________________________ AGGRAVATED BATTERY-784.045(1)(a) ______________________________________________________________________________
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
______________________________________________________________________________ Battery 784.03 8.3 ______________________________________________________________________________ Felony battery 784.041 8.5 ______________________________________________________________________________ Attempt 777.04(1) 5.1 ______________________________________________________________________________ Improper exhibition of dangerous weapons 790.10 10.5 or firearms ______________________________________________________________________________ Discharging a firearms in public 790.15 10.6 ______________________________________________________________________________Comment
The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.
This instruction was approved in 1981 and amended in 1989[ 543 So.2d 1205], and 2007.
8.4(a) AGGRAVATED BATTERY (Pregnant Victim) § 784.045, Fla. Stat.
To prove the crime of Aggravated Battery, the State mustprove the following three elements beyond a reasonable doubt.The first element is a definition of battery.
1.(Defendant)[intentionally touched or struck(victim)against her will][intentionally caused bodily harm to(victim)].
2.(Victim)was pregnantat the time.
3.(Defendant)incommitting the battery knew or should have knownthat(victim)was pregnant.Lesser Included Offenses _____________________________________________________ AGGRAVATED BATTERY(PREGNANT VICTIM)-784.045(1)(b) _____________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. _____________________________________________________ Battery 784.03 8.3 _____________________________________________________ Attempt 777.04(1) 5.1
Comment
This instruction was approved in 2007. See Small v. State, 889 So.2d 862 (Fla. 1st DCA 2004).8.10 ASSAULT ON A [ LAW ENFORCEMENT OFFICER ],[ FIREFIGHTER ], ETC. § 784.07(2)(a), Fla. Stat.
To prove the crime of Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical CareProvider] [Traffic Accident Investigation Officer] [TrafficInfraction Enforcement Officer] [Parking Enforcement Specialist][Security Officer employed by the Board of Trustees of aCommunity College], the State must prove the following six elements beyond a reasonable doubt:
1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
4. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [trafficaccident investigation officer] [traffic infractionenforcement officer] [parking enforcement specialist][security officer employed by the board of trustees ofa community college].
5. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical careprovider] [traffic accident investigation officer][traffic infraction enforcement officer] [parkingenforcement specialist] [security officeremployed by the board of trustees of a communitycollege].
6. At the time of the assault , (victim) was engaged in the lawful performance of [his] [her] duties.The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medicalcare provider] [traffic accident investigation officer] [trafficinfraction enforcement officer] [parking enforcement specialist][security officer employed by the board of trustees of acommunity college].In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).Lesser Included Offenses ________________________________________________________ ASSAULT ON LAW
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
________________________________________________________ Assault 784.011 8.1 ________________________________________________________ Attempt 777.04(1) 5.1 ________________________________________________________Comment
Several statutes have been added in recent years providing for reclassification of assaults and batteries on designated classes: §§ 784.074, 784.075, 784.076, 784.078, 784.081, 784.082, 784.083, and 784.085. This instruction was adopted in 1981 and amended in 1992[ 603 So.2d 1175], and 1995[ 657 So.2d 1152], and 2007.
8.11 BATTERY ON [ LAW ENFORCEMENT OFFICER ],[ FIREFIGHTER ], ETC. § 784.07(2)(b), Fla. Stat.
To prove the crime of Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical CareProvider] [Traffic Accident Investigation Officer] [TrafficInfraction Enforcement Officer] [Parking Enforcement Specialist][Security Officer Employed by the Board of Trustees of aCommunity College], the State must prove the following four elements beyond a reasonable doubt:
1. (Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim)].
2. (Victim) was a [law enforcement officer] [firefighter] [emergency medical careprovider] [traffic accident investigation officer][traffic infraction enforcement officer] [parkingenforcement specialist] [security officer employed bythe board of trustees of a community college].
3. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
4. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed.The court now instructs you that (name of official position of victim designated in charge) is a [lawenforcement officer] [firefighter][emergency medicalcare provider] [traffic accident investigation officer] [trafficinfraction enforcement officer] [parking enforcement specialist][security officer employed by the board of trustees of acommunity college].In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).Lesser Included Offenses _____________________________________________________ BATTERY ON
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
_____________________________________________________ Battery 784.03 8.3 _____________________________________________________ Attempt 777.04(1) 5.1 _____________________________________________________Comment
This instruction was adopted in 1981 and amended in 1992[ 603 So.2d 1175],8.12 AGGRAVATED ASSAULT ON[ LAW ENFORCEMENT OFFICER ],[ FIREFIGHTER ], ETC. § 784.07(2)(c), Fla. Stat.
To prove the crime of Aggravated Assault on a [Law Enforcement Officer] [Firefighter] [Emergency MedicalCare Provider] [Traffic Accident Investigation Officer] [TrafficInfraction Enforcement Officer] [Parking Enforcement Specialist][Security Officer Employed by the Board of Trustees of aCommunity College], the State must prove the following seven elements beyond a reasonable doubt. The first three elements define assault.
1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.Give 4a or 4b as applicable.
4. a.[The assault was made with a deadly weapon.]
b.If 4b is alleged, define the crime charged.[The assault was made with a fully-formed, conscious intent to commit (crime charged) upon (victim).]
5. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [trafficaccident investigation officer] [traffic infractionenforcement officer] [parking enforcement specialist][security officer employed by the board of trustees ofa community college].
6. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical careprovider] [traffic accident investigation officer][traffic infraction enforcement officer] [parkingenforcement specialist] [security officeremployedby the board of trustees of a communitycollege].
7. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medicalcare provider] [traffic accident investigation officer] [trafficinfraction enforcement officer] [parking enforcement specialist][security officer employed by the board of trustees of acommunity college].In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).Definition. Give if 4a alleged.A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.Give if 4a alleged.It is not necessary for the State to prove that the defendant had an intent to kill.Lesser Included Offenses _____________________________________________________________________________________ AGGRAVATED ASSAULTON ON
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
_____________________________________________________________________________________ Aggravated assault 784.021 8.2 _____________________________________________________________________________________ Assault on law on 784.07(2)(a) 8.10 enforcement officer _____________________________________________________________________________________ Assault 784.011 8.1 _____________________________________________________________________________________ Attempt 777.04(1) 5.1 _____________________________________________________________________________________ Improper exhibition of dangerous weapons 790.10 10.5 of firearms _____________________________________________________________________________________ Discharging firearms in public 790.15 10.6 _____________________________________________________________________________________Comment
This instruction was approved in 1992[ 603 So.2d 1175], and amended in 1995 [ 657 So.2d 1152], and 2007.8.13 AGGRAVATED BATTERY ON [LAW ENFORCEMENT OFFICER], [FIREFIGHTER], ETC. § 784.07(2)(d), Fla. Stat.
To prove the crime of Aggravated Battery on a [Law Enforcement Officer] [Firefighter] [Emergency MedicalCare Provider] [Traffic Accident Investigation Officer] [TrafficInfraction Enforcement Officer] [Parking Enforcement Specialist][Security Officer Employed by the Board of Trustees of aCommunity College], the State must prove the following five elements beyond a reasonable doubt. The first element is a definition of battery.
1. (Defendant)
[intentionally touched or struck (victim) against [his] [her] will]
[intentionally caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a.[intentionally or knowingly caused
[great bodily harm to (victim)]]
[permanent disability to (victim)]] [ permanent disfigurement to (victim)]]
b.[used a deadly weapon[.
3. (Victim) was a [law enforcement officer] [firefighter] [emergency medicalcare provider] [traffic accident investigationofficer] [traffic infraction enforcement officer][parking enforcement specialist] [security officeremployed by the board of trustees of a communitycollege].
4. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] emergency medical careprovider] [traffic accident investigation officer][traffic infraction enforcement officer] [parkingenforcement specialist] [security officer employed bythe board of trustees of a community college].
5. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed against [him] [her].The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medicalcare provider] [traffic accident investigation officer] [trafficinfraction enforcement officer] [parking enforcement specialist][security officer employed by the board of trustees of acommunity college].In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla. 1991).Definition. Give if 2b alleged.A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.Lesser Included Offenses _______________________________________________________________________________________ AGGRAVATED ASSAULT ON
CATEGORY ONE CATEGORY TWO FLA.STAT INS. NO.
_______________________________________________________________________________________ Aggravated battery 784.045 8.4 _______________________________________________________________________________________ Felony battery 784.041 8.5 _______________________________________________________________________________________ Battery on enforcement 784.07(2)(b) 8.11 officer _______________________________________________________________________________________ Battery 784.03 8.3 _______________________________________________________________________________________ Attempt 777.04(1) 5.1 _______________________________________________________________________________________ Improper exhibition of dangerous weapons 790.10 10.5 or firearms _______________________________________________________________________________________ Discharging firearms in public 790.15 10.6 _______________________________________________________________________________________Comment
The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.This instruction was adopted in 1992[ 603 So.2d 1175] and was amended in 1995 [ 657 So.2d 1152], and 2007.
8.14 AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(a), Fla. Stat.
To prove the crime of Aggravated Battery on a Person 65 Years of Age or Older, the State must prove the followingthree elements beyond a reasonable doubt. The first element is a definition of battery.
1. (Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim)].Give 2a or 2b as applicable.
2. (Defendant) in committing the batteryGive 2a, 2b, or 2c as applicable.
a.[intentionally or knowingly caused
[great bodily harm to (victim)]].
[permanent disability to (victim)]].
b.[used a deadly weapon].
c. [knew or should have known that (victim) waspregnant],
3. (Victim) was at the time 65 years of age or older.
Definition. Give if 2b alleged.A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.Lesser Included Offenses ___________________________________________________________________________________ AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OROLDER — 784.08(a2)(a) ___________________________________________________________________________________
CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.
___________________________________________________________________________________ Aggravated battery 784.045 8.4 ___________________________________________________________________________________ Felony battery 784.041 8.5 ___________________________________________________________________________________ Battery on person 784.08(2)(C) 8.16 65 years of age or older ___________________________________________________________________________________ Battery 784.03 8.3 ___________________________________________________________________________________ Attempt 777.04(1) 5.1 ___________________________________________________________________________________ Improper exhibition of dangerous weapons 790.10 10.5 or firearms ___________________________________________________________________________________ Discharging firearms in public 790.15 10.6 ___________________________________________________________________________________Comment
The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.This instruction was adopted in 1997 [ 697 So.2d 84] and amended in 2007.
10.16 USING A FIREARM WHILE UNDER THE INFLUENCE[ § 790.151, Fla. Stat.RESERVED]
To prove the crime of Using a Firearm While Under theInfluence, the State must prove the following two elementsbeyond a reasonable doubt:
1.(Defendant)used afirearm.
2.(Defendant)was underthe influence of [an alcoholic beverage] [any chemicalsubstance] [any controlled substance] when affected tothe extent that [his] [her] normal faculties wereimpaired, when using the firearm.Definitions.§ 790.001(6), Fla. Stat."Firearm" means any weapon (including a starter gun)which will, is designed to, or may readily be converted to expela projectile by the action of an explosive; the frame orreceiver of any such weapon; any firearm muffler or firearmsilencer; any destructive device;or any machine gun. The term "firearm" does not includean antique firearm unless the antique firearm is used in thecommission of a crime."Use a firearm" means to discharge a firearm or to havea firearm readily accessible for immediate discharge."Readily accessible for immediate discharge" meansloaded and in a person's hand.Give if applicable."Alcoholic beverages" are considered to be substances ofany kind and description which contain alcohol.§ 877.111, Fla. Stat.(Chemical substance)is a chemical substanceunder Florida law.Ch. 893, Fla. Stat.(Controlled substance)is a controlledsubstance under Florida law.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007.
11.1 SEXUAL BATTERY — VICTIM LESS THAN 12 YEARS OF AGE § 794.011(2), Fla. Stat.
To prove the crime of Sexual Battery upon a Person Less Than 12 Years of Age, the State must prove the following twothreeelements beyond a reasonable doubt:
1. (Victim) was less than 12 years of age.
Give 2a, 2b, 2c, or 2d as applicable.
2. a.[(Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].
b.[(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.]
c.[(Defendant) injured the sexual organ of (victim) in an attempt to commit an act [upon] [with] (victim) in which the sexual organ of the [(defendant)] [(victim)] would have penetrated or would have had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].[
d.[(Defendant) injured the sexual organ of (victim) in an attempt to commit an act upon (victim) in which the [anus] [vagina] of (victim) would be penetrated by an object.]
Give 3a or 3b as applicable.
3. a.(Defendant)was 18years of age or older at the time of the sexualbattery.
b.(Defendant)was lessthan 18 years of age at the time of the sexualbattery.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
___________________________________________________________________________________ Battery 784.03 8.3 ___________________________________________________________________________________ Solicitation by person in familial authority 794.011(8)(c) 11.5 ___________________________________________________________________________________ Attempt 777.04(1) 5.1 ___________________________________________________________________________________ Assault 784.011 8.1 ___________________________________________________________________________________ Aggravated assault 784.021(1)(a) 8.2 ___________________________________________________________________________________ Aggravated battery 784.045(1)(a) 8.4 ___________________________________________________________________________________Comment
This instruction was adopted in 1981 and was amended in 1987[ 508 So.2d 1221],13.1 BURGLARY § 810.02, Fla. Stat.
Give this statement of the elements if the charge is unlawful entry:To prove the crime of Burglary, the State must prove the following three[two] [three] elements beyond a reasonable doubt:
1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).
2.(Defendant)did not havethe permission or consent of (person alleged), oranyone authorized to act for him, to [enter] [remainin] the [structure] [conveyance] at the time.
The offense intended cannot be trespass orburglary.Give element 3 only if defendant meets his or her burdenof production that he or she had an invitation or license toenter, or that the premises were open to the public. See Statev. Hicks, 421 So.2d 510 (Fla. 1982) and State v. Waters,436 So.2d 66 (Fla. 1983).3.2. At the time of entering the [structure] [conveyance], (defendant) hada fully-formed,consciousthe intent to committhe offense of[anoffense][(the crime alleged) ]in that [structure] [conveyance].
3.[ (Defendant)was not [licensed] [invited] to enter the[structure] [conveyance].] [The premises were not opento the public at the time of the entering.]Give if applicable.If the [license] [invitation] to enter was obtained by(defendant's) trick or fraud or deceit, then the [license][invitation] to enter was not valid.
Give if applicable.If(defendant)entered premisesthat were open to the public, but then entered an area of thepremises that [he] [she] knew was not open to the public,(defendant) committed a burglary if [he] [she] entered thatnon-public area with the intent to commit [an offense][(the crime alleged)]in that non-publicarea.Give if applicable. § 810.07 Fla. Stat.You may infer that(defendant)hadthe intent to commit a crime inside a [structure] [conveyance]if the [entering] [attempted entering] of the [structure][conveyance] was done stealthily and without the consent of theowner or occupant.The entry necessary need not be the whole body of thedefendant. It is sufficient if the defendant extends any part ofthe body far enough into the [structure] [conveyance] to commit[an offense][(the crime alleged)].Give this statement of the elements if the charge is unlawfully remaining:.To prove the
1. (Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged).
2. (Defendant),after entering the [structure] [conveyance],remained therein
Give2a, 2b, or2c, as applicable.
a. surreptitiously and with thefully-formed consciousintent to committhe offense of(crime alleged)[an offense][(the crime alleged)]inside the [structure][conveyance].
b. after permission to remain had been withdrawn and with thefully-formed consciousintent to committhe offense of(crime alleged)[an offense] [(thecrime alleged)] inside the [structure][conveyance].
c. with theDefine the crime or forcible felony alleged.The offense intended cannot be trespass or burglary.fully-formedconsciousintent to commit or attempt to committhe offense of[a forcible felony] [(the forcible felony alleged)].
[or]
[if he or she entered into or remained in areas of thepremises which he or she knew or should have known were not opento the public].
if he or she had the intent to commit the crimedescribed in the charge.§ 810.07 Fla. Stat.Proof of the entering of a [structure] [conveyance]stealthily and without the consent of the owner or occupant mayjustify a finding that the entering was with the intent tocommit a crime if, from all the surrounding facts andcircumstances, you are convinced beyond a reasonable doubt thatthe intent existed.The entry necessary need not be the whole body of thedefendant. It is sufficient if the defendant extends any part ofthe body far enough into the [structure] [conveyance] tocommit(crime alleged)
Proof of intent.The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit
1. used a motor vehicle as an instrumentality,other than merely as a getaway vehicle, to assist incommitting the offense, and thereby damaged the[dwelling] [structure],
or
2. caused damage to the [dwelling] [structure][property] within the [dwelling] [structure], inexcess of $1,000.
In an area that is subject to a state ofemergency, the definition of structure, dwelling, andconveyance may be different during a state ofemergency. See § 810.011, Fla. Stat.
If you find(defendant)guilty of burglary, you must also determine ifthe State has proved beyond a reasonable doubtwhether, in the course of committing the burglary, the[structure] [conveyance] was within an area that thegovernor had declared was subject to a state ofemergency under Chapter252, the "State Emergency Management Act."
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
______________________________________________________________ Burglary 810.02(4) 13.1 ______________________________________________________________ Aggravated battery 784.045 8.4 ______________________________________________________________ Battery 784.03 8.3 ______________________________________________________________ Aggravated assault 784.021 8.2 ______________________________________________________________ Assault 784.011 8.1 ______________________________________________________________ Attempt 777.04(1) 5.1 ______________________________________________________________BURGLARY — 810.02(4)CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. 777.04TrespassTrespassCriminal Mischief 806.13 12.4
______________________________________________________________ Trespass 810.08(2)(b) 13.3 ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ None ______________________________________________________________ Attempt (1) 5.1 ______________________________________________________________ Trespass 810.08(2)(a) 13.3 ______________________________________________________________ 810.08(2)(b) 13.3 ______________________________________________________________ 810.08(2)(c) 13.3 ______________________________________________________________ ______________________________________________________________Comment.
This instruction was adopted in 1981 and amended in 1985[ 477 So.2d 985], 1997 [ 697 So.2d 84],13.5 (a) TRESPASS ON SCHOOL GROUNDS ORFACILITIES§ 810.097, Fla. Stat.
To prove the crime of Trespass on School Grounds orFacilities, the State must prove the following two elementsbeyond a reasonable doubt:Give 1a or 1b as applicable.
1.a.(Defendant)entered or remained on the campus of(school name).
b.(Defendant)entered orremained on(facility name)ownedby(school name).Give 2a or 2b as applicable.
2.a.(Defendant)did not have any legitimate business on thecampus or any other authorization, license, orinvitation to enter or remain upon school property.
b.(Defendant)was astudent under suspension or expulsion at the time heor she entered or remained on the campus or any otherfacility owned by a school.Definition."School" means the grounds or any facility of anykindergarten, elementary school, middle school, junior highschool, or secondary school, whether public or non-public.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2007.
13.5 (b) TRESPASS ON SCHOOL GROUNDS OR FACILITIES AFTERWARNING BY PRINCIPAL OR DESIGNEE
§ 810.097(2), Fla. Stat.
To prove the crime of Trespass on School Grounds orFacilities After Warning by Principal or Designee, the Statemust prove the following two elements beyond a reasonabledoubt:
1.(Defendant)entered orremained on the campus or any facility of(school name).
2.The principal or [his] [her]designee [told or directed the defendant to leave thecampus or facility] [told the defendant not to enterthe campus or facility] of(school name).
Definition."School" means the grounds or any facility of anykindergarten, elementary school, middle school, junior highschool, or secondary school, whether public or non-public.
Lesser Included Offenses
No lesser included offenses have been identified for this offense
Comment
This instruction was adopted in 2007.
14.2 DEALING IN STOLEN PROPERTY (FENCING) § 812.019(1), Fla. Stat.
To prove the crime of ( crime charged) Dealing in Stolen Property (Fencing), the State must prove the following two elements beyond a reasonable: doubt:
1. (Defendant) [trafficked in] [endeavored to traffic in] (property alleged).
2. (Defendant) knew or should have known that (property alleged) was stolen.Inferences. Give if applicable. § 812.022(2), Fla.Stat.Proof of possession of recently stolen property, unlesssatisfactorily explained, gives rise to an inference that theperson in possession of the property knew or should have knownthat the property had been stolen.Inferences. Give applicable. § 812.022(3), Fla.Stat.Proof of the purchase or sale of stolen property at aprice substantially below the fair market value, unlesssatisfactorily explained, gives rise to an inference that theperson buying or selling the property knew or should have knownthat the property had been stolen.Inferences. Give if applicable. § 812.022(4), Fla.Stat.Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.Inferences. Give if applicable. § 812.022(5), Fla.Stat.Proof that a dealer who regularly deals in used propertypossesses stolen property, upon which a name and phone number ofa person other than the offer-or of the property areconspicuously displayed, gives rise to an inference that thedealer possessing the property knew or should have known thatthe property was stolen.Inferences. Give if applicable. § 812.022(6), Fla.Stat.Proof that a person was in possession of a stolen motorvehicle and that the ignition mechanism of the motor vehicle hadbeen bypassed or the steering wheel locking mechanism had beenbroken or bypassed, unless satisfactorily explained, gives riseto an inference that the person in possession of the stolenmotor vehicle knew or should have known that the motor vehiclehad been stolen.Definitions.§ 812.012(3), Fla. Stat."Property" means anything of value, and includes:
real property, including things growing on, affixed to and found in land;
tangible or intangible personal property, including rights, privileges, interests, and claims; and services.§§ 812.012(6), 812.028(3), Fla. Stat."Stolen property" means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.§ 812.012(7), Fla. Stat."Traffic" means:
to sell, transfer, distribute, dispense or otherwise dispose of property; and
to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.Lesser Included Offenses _______________________________________________________________________ DEALING IN STOLEN PROPERTY — TRAFFICKING — 812.019(1) _______________________________________________________________________
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
_______________________________________________________________________ None Grand theft — third degree 812.014(2)(c) _______________________________________________________________________ Petit theft — first degree 812.014(2)(e) _______________________________________________________________________ Petit theft — second degree 812.014(3)(a) _______________________________________________________________________Comment
This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and in 2007, by adding the Inferences in § 812.022(2)-(6), Fla. Stat.14.3 DEALING IN STOLEN PROPERTY (ORGANIZING) § 812.019(2), Fla.Stat.
To prove the crime of (crime charged) Dealing in Stolen Property (Organizing), the State mustprove the following two elements beyond a reasonable doubt:
1. (Defendant) [initiated] [organized] [planned] [financed] [directed] [managed] [supervised] the theft of (property alleged).
2. (Defendant) trafficked in the (property alleged).Inferences. Give if applicable. § 812.022(2), Fla.Stat.Proof of possession of recently stolen property, unlesssatisfactorily explained, gives rise to an inference that theperson in possession of the property knew or should have knownthat the property had been stolen.Inferences. Give applicable. § 812.022(3), Fla.Stat.Proof of the purchase or sale of stolen property at aprice substantially below the fair market value, unlesssatisfactorily explained, gives rise to an inference that theperson buying or selling the property knew or should have knownthat the property had been stolen.Inferences. Give if applicable. § 812.022(4), Fla.Stat.Proof of the purchase or sale of stolen property by adealer in property, out of the regular course of business orwithout the usual indicia of ownership other than merepossession, unless satisfactorily explained, gives rise to aninference that the person buying or selling the property knew orshould have known that it had been stolen.Inferences. Give applicable. § 812.022(5), Fla.Stat.Proof that a dealer who regularly deals in used propertypossesses stolen property, upon which a name and phonenumber of a person other than the offer of the propertyare conspicuously displayed, gives rise to an inference that thedealer possessing the property knew or should have known thatthe property was stolen.Inferences. Give if applicable. § 812.022(6), Fla.Stat.Proof that a person was in possession of a stolen motorvehicle and that the ignition mechanism of the motor vehicle hadbeen bypassed or the steering wheel locking mechanism had beenbroken or bypassed, unless satisfactorily explained, gives riseto an inference that the person in possession of the stolenmotor vehicle knew or should have known that the motor vehiclehad been stolen.Definitions.§ 812.012(3), Fla.Stat."Property" means anything of value, and includes:
real property, including things growing on, affixed to and found in land;
tangible or intangible personal property, including rights, privileges, interests, and claims; and services.§§ 812.012(6), 812.028(3), Fla. Stat."Stolen property" means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.§ 812.012(7), Fla. Stat."Traffic" means:
to sell, transfer, distribute, dispense or otherwise dispose of property; and
to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.Lesser Included Offenses _______________________________________________________ DEALING IN STOLEN PROPERTY — MANAGING ANDTRAFFICKING — 812.019(2) _______________________________________________________
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
_______________________________________________________ Dealing in stolen 812.019(1) 14.2 property _______________________________________________________ None _______________________________________________________Comment
This instruction was adopted in 1981 and amended in 1989[ 543 So.2d 1205], and in 2007, by adding the Inferences in § 812.022(2)-(6), Fla. Stat.20.14 HARASSMENT BY USE OF PERSONAL IDENTIFICATIONINFORMATION§ 817.568(4), Fla. Stat.
To prove the crime of Harassment by Use of PersonalIdentification Information, the State must prove the followingthree elements beyond a reasonable doubt:
1.(Defendant)willfullyand without authorization [possessed] [used][attempted to use] personal identification informationconcerning(victim).
2.[He] [She] did so without firstobtaining the consent of(victim).
3.[He] [She] did so with the purposeof harassing(victim).Definitions."Willfully" means intentionally and purposely."Authorization" means empowerment, permission, orcompetence to act."Personal identification information" means any name ornumber that may be used, alone or in conjunction with any otherinformation, to identify a specific individual, including anyname, postal or electronic mail address, telephone number,social security number, date of birth, mother's maiden name,official state or United States issued driver's license oridentification number, alien registration number, governmentpassport number, employer or taxpayer's identification number,Medicaid or food stamp account number, bank account number,credit or debit card number or personal identification number orcode assigned to the holder of a debit card by the issuer topermit authorized use of such card, unique biometric data suchas fingerprint, voice print, retina or iris image, or otherunique physical representation, unique electronic identificationnumber, address, or routing code, medical record,telecommunication identifying information or access device, orother number or information that can be used to access aperson's financial resources."Harass" means to engage in conduct directed at aspecific person that is intended to cause substantial emotionaldistress to such person and serves no legitimate purpose."Harass" does not mean to use personal identificationinformation for accepted commercial purposes and does notinclude constitutionally protected conduct such as organizedprotests.Enhanced penalty. Give if applicable. See §817.568(5) and (10), Fla. Stat, which if alleged will require aninterrogatory.Lesser Included Offenses _____________________________________________________________ HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION — 817.568(4) _____________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. _____________________________________________________________ NoneAttempt (possession only) 777.04(1) 5.1 _____________________________________________________________
Comment
This instruction was adopted in 2007.20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATIONINFORMATION OF A MINOR § 817.568(6), Fla. Stat.
To prove the crime of Fraudulent Use of PersonalIdentification Information of a Minor, the State must provethefollowing three elements beyond a reasonable doubt:
1.(Defendant)willfullyand without authorization fraudulently used personalidentification information concerning(victim).
2.(Victim)was less than18 years of age.
3.(Defendant)did sowithout first obtaining the consent of(victim)or [his] [her] legalguardian.Definitions."Willfully" means intentionally and purposely."Fraudulently" means purposely or intentionallysuppressing the truth or perpetrating a deception."Authorization" means empowerment, permission, orcompetence to act."Personal identification information" means any name ornumber that may be used, alone or in conjunction with any otherinformation, to identify a specific individual, including anyname, postal or electronic mail address, telephone number,social security number, date of birth, mother's maiden name,official state or United States issued driver's license oridentification number, alien registration number, governmentpassport number, employer or taxpayer's identification number,Medicaid or food stamp account number, bank account number,credit or debit card number or personal identification number orcode assigned to the holder of a debit card by the issuer topermit authorized use of such card, unique biometric data suchas fingerprint, voice print, retina or iris image, or otherunique physical representation, unique electronic identificationnumber, address, or routing code, medical record,telecommunication identifying information or access device, orother number or information that can be used to access aperson's financial resources.Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat, which if alleged will require an interrogatory.Lesser Included Offenses _______________________________________________________ FRAUDULENT USE OF PERSONAL IDENTIFICATIONINFORMATION OF A MINOR — 817.568(6) _______________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. _______________________________________________________ None _______________________________________________________ Attempt 777.04(1) 5.1 _______________________________________________________
Comment
This instruction was adopted in 2007.20.16 FRAUDULENT USE OF PERSONAL IDENTIFICATIONINFORMATION OF A MINOR BY A PARENT OR GUARDIAN§ 817.568(7), Fla. Stat.
To prove the crime of Fraudulent Use of PersonalIdentification Information of a Minor by a [Parent] [Guardian],the State must prove the following three elements beyond areasonable doubt:
1. (Defendant)willfully andfraudulently used personal identification informationconcerning(victim)
2. (Victim)was less than 18years of age.
3. (Defendant)was [the parent of][the legal guardian of] [exercisedcustodial authority over](victim)at the time.Definitions."Willfully" means intentionally and purposely."Fraudulently" means purposely or intentionallysuppressing the truth or perpetrating a deception."Personal identification information" means any name ornumber that may be used, alone or in conjunction with any otherinformation, to identify a specific individual, including anyname, postal or electronic mail address, telephone number,social security number, date of birth, mother's maiden name,official state or United States issued driver's license oridentification number, alien registration number, governmentpassport number, employer or taxpayer's identification number,Medicaid or food stamp account number, bank account number,credit or debit card number or personal identification number orcode assigned to the holder of a debit card by the issuer topermit authorized use of such card, unique biometric data suchas fingerprint, voice print, retina or iris image, or otherunique physical representation, unique electronic identificationnumber, address, or routing code, medical record,telecommunication identifying information or access device, orother number or information that can be used to access aperson's financial resources.Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat, which if alleged will require an interrogatory.Lesser Included Offenses __________________________________________________________ FRAUDULENT USE OF PERSONAL IDENTIFICATIONINFORMATION OF A MINOR BY A [PARENT] [GUARDIAN] —817.568(7) __________________________________________________________ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. __________________________________________________________ None __________________________________________________________ Attempt 777.04(1) 5.1 __________________________________________________________ CommentThis instruction was adopted in 2007.
20.18 FRAUDULENT CREATION, USE OR POSSESSION OFCOUNTERFEIT PERSONAL IDENTIFICATION INFORMATION
§ 817.568(9), Fla. Stat.
To prove the crime of Fraudulent [Creation] [Use][Possession] of Counterfeit Personal Identification Information,the State must prove the following three elements beyond areasonable doubt:
1.(Defendant)willfullyand fraudulently [created], [used] [possessed withintent to use] counterfeit or fictitious personalidentification information.
Give 2a or 2b as applicable.
2.a.The personalidentification information concerned a fictitiousindividual.
b.The personal identificationinformation concerned a real individual whose consenthad not first been obtained.
3.[He] [She] did so with intent tocommit or facilitate the commission of a fraud onanother person.Definitions."Willfully" means intentionally and purposely."Fraudulently" means purposely or intentionallysuppressing the truth or perpetrating a deception."Authorization" means empowerment, permission, orcompetence to act."Personal identification information" means any name ornumber that may be used, alone or in conjunction with any otherinformation, to identify a specific individual, including anyname, postal or electronic mail address, telephone number,social security number, date of birth, mother's maiden name,official state or United States issued driver's license oridentification number, alien registration number, governmentpassport number, employer or taxpayer's identification number,Medicaid or food stamp account number, bank account number,credit or debit card number or personal identification number orcode assigned to the holder of a debit card by the issuer topermit authorized use of such card, unique biometric data suchas fingerprint, voice print, retina or iris image, or otherunique physical representation, unique electronic identificationnumber, address, or routing code, medical record,telecommunication identifying information or access device, orother number or information that can be used to access aperson's financial resources."Counterfeit or fictitious personal identificationinformation" means any counterfeit, fictitious or fabricatedinformation in the similitude of the data just defined to youthat, although not truthful or accurate, would in context lead areasonably prudent person to credit its truthfulness andaccuracy.Enhanced penalty. Give if applicable. See §817.568(5) and (10), Fla. Stat, which if alleged will require aninterrogatory.
Lesser Included Offenses
FRAUDULENT CREATION, USE OR POSSESSION OFCOUNTERFEIT PERSONAL IDENTIFICATION INFORMATION —817.568(9)CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO.NoneAttempt 777.04(1) 5.1 ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________Comment
This instruction was adopted in 2007.27.1 ESCAPE § 944.40, Fla. Stat.
To prove the crime of Escape, the State must prove the following three elements beyond a reasonable doubt:Give la or lb as applicable.
1. (Defendant) was
a.[under arrest and in the lawful custody of a law enforcement official]
b.Give 2a, 2b, or 2c as applicable.[convicted of a crime and sentenced to a term of imprisonment and committed to (institution alleged) by a court]
2. While a prisoner, (defendant) was
a.[confined at (name of institution)].
b.[being transported to or from a place of confinement].
c.[working on a public road].
3. (Defendant) escaped or attempted to escape by (read overt act from charge), intending to avoid lawful confinement.Give if requested and applicable. See Kearse v. State, 662 So.2d 677 (Fla. 1995) andApplewhite v. State,874 So.2d 1276 (Fla. 5th DCA 200k).Definitions."Transportation to a place of confinement" begins at thetime an individual is placed under arrest.An "arrest" takes place when the arresting officerintends to arrest; the arresting officer actually orconstructively seizes the person to be arrested; the officer'sintent to arrest is communicated by the arresting officer to theperson to be arrested; and the person to be arrested understandsthat communication. An "arrest" does not require that the lawenforcement officer complete the act of acquiring total physicalcontrol over the person to be arrested.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 1989and 2007.