No. 69804.
May 28, 1987.
Original Proceeding — Florida Standard Jury Instructions (Criminal).
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted to this Court the following recommendations or changes:
(1) An amendment to SEXUAL BATTERY — VICTIM LESS THAN TWELVE YEARS OF AGE, F.S. 794.011(2);
(2) An amendment to SEXUAL BATTERY — VICTIM TWELVE YEARS OF AGE OR OLDER, F.S. 794.011(3);
(3) An amendment to SEXUAL BATTERY — VICTIM TWELVE YEARS OF AGE OR OLDER — CIRCUMSTANCES SPECIFIED, F.S. 794.011(4);
(4) An amendment to SEXUAL BATTERY — PERSON TWELVE YEARS OF AGE OR OLDER — SLIGHT FORCE, F.S. 794.011(5);
(5) A new instruction: SOLICITATION OF CHILD TWELVE YEARS OF AGE OR OLDER BUT UNDER EIGHTEEN YEARS OF AGE TO ENGAGE IN SEXUAL ACTIVITY BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY, F.S. 794.041(2)(a);
(6) A new instruction: SEXUAL ACTIVITY WITH CHILD TWELVE YEARS OF AGE OR OLDER BUT UNDER EIGHTEEN YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY, F.S. 794.041(2)(b);
(7) An amendment to LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY, F.S. 800.04;
(8) A new instruction: CONTRABAND IN COUNTY DETENTION FACILITY, F.S. 951.22;
(9) A new instruction: 3.04(g) — VOLUNTARY INTOXICATION;
(10) Amended instruction on DUI MANSLAUGHTER, F.S. 316.193;
(11) An addition in instruction 3.04(c) ENTRAPMENT, deleting the last paragraph of the instruction and substituting the following: "On the issue of entrapment, the State must convince you beyond a reasonable doubt that the defendant was not entrapped";
(12) A new instruction on ACCESSORY AFTER THE FACT, F.S. 777.03;
(13) A new definition of the words "obtains or uses" as set forth in section 812.012, F.S. (1985), the following paragraph will replace the old "obtains or uses" paragraph:
"Obtains or uses" means any manner of:
(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.
(d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or
2. Other conduct similar in nature.
(14) An amendment to the theft instruction, F.S. 812.014(b), (c), dealing with value, the figure of $100.00 will be changed to $300.00;
(15) An amendment to the worthless check instruction, F.S. 823.05(2), changing the figure of $50.00, which appears in element 5, is hereby changed to read $150.00;
(16) An amendment to the worthless check-obtaining property, F.S. 823.05(4), the figure of $50.00, which appears in element 7, is changed to read $150.00;
(17) An amendment relating to the schedule of lesser included offenses as attached hereto.
We approve for publication these recommended changes, which follow this opinion. We caution all interested persons, however, that the notes and comments reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, BARKETT and KOGAN, JJ., concur.
SHAW J., concurs specially with an opinion. 794.011 794.023 See Coleman v. State, 484 So.2d 624 794.011 794.023 See Coleman v. State, 484 So.2d 624 794.011 794.023 See Coleman v. State, 484 So.2d 624 794.011 794.023 See Coleman v. State, 484 So.2d 624 800.04 800.04 800.04 800.04 Lanier v. State, 443 So.2d 178 951.22 316.193 316.003 877.111 316.1934 777.03CHARGED OFFENSES CATEGORY 1 CATEGORY 2 782.04 782.04 782.04 782.07 782.04 782.071 784.045 784.045 784.021 784.03 784.011 782.04 782.04 782.04 782.07 782.04 784.045 784.021 784.03 784.011fn_ 782.07 782.04 782.04 782.071 784.05 784.045 784.021 784.03 784.011fn_ 782.04 782.04 782.04 784.021 784.03 784.011fn_ 782.07 784.021 784.03 784.011 782.071 784.05 784.05fn__ fn_ 784.011 784.011 784.021 790.10 790.15 784.011 784.021 784.03 784.03 784.045 784.03 784.045 790.10 790.15 784.05 784.05 784.07 784.011 784.07 784.03fn____ 787.01 787.02 784.021 784.03 784.011 790.01 790.10 790.15 790.17 790.18 790.23 790.01 790.01 784.03 794.011 784.011 784.021 784.045 784.03 794.011 784.045 784.021 784.011 794.011 794.011 784.03 794.011 784.021 784.011 794.011 784.03 794.011 784.011 800.02 800.03 800.02 784.011 784.03 800.04 800.02 806.01 806.01 806.13 806.13 806.13 893.13 893.13 806.13 806.13 806.13 806.13 806.13 806.13 806.13 810.02 810.02 810.02 810.08 810.08 810.02 810.08 810.02 810.08 810.02 810.08 810.06 812.016 812.019 812.019 812.019 812.13 812.13 812.13 812.014 812.014 812.014 784.03 784.045 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 812.13 812.13 812.014 812.014 812.014 784.03 784.045 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 812.13 812.014 812.014 812.014 784.03 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 827.04 827.04 827.04 831.01 831.02 King v. State, 317 So.2d 852 832.04 832.04 832.041 832.04 832.041 832.05 832.05 849.25 849.25 849.25 316.193 316.193 316.193 316.193 316.193 316.193 316.193 316.193 782.071 316.193 316.193 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.13 893.147 893.147 893.147 893.135 893.13 893.13 893.135 893.13 893.13 893.13 893.135 893.13 893.13 893.13 893.135 893.13 893.13 893.13 893.135 893.13 893.13 893.13
Provided that charged offense is a second degree felony under section 893.13(1)(a)1.
SEXUAL BATTERY — VICTIM LESS THAN TWELVE YEARS OF AGE — F.S. (2) Before you can find the defendant guilty of sexual battery upon a person less than twelve years of age, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Victim) was less than twelve years of age. 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.] The punishment provided by law for sexual battery upon a person less than twelve years of age is greater depending upon the age of the defendant. Therefore, if you find the defendant guilty of sexual battery upon a person less than twelve years of age and you further find that at the time of the sexual battery the defendant was eighteen years of age or older, you should find him or her guilty of sexual battery upon a person less than twelve years of age by a person eighteen years of age or older. If you find that the defendant was not eighteen years of age or older but did commit the sexual battery, you should find him or her guilty only of sexual battery upon a person less than twelve years of age by a person under eighteen years of age. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Definition Give if "Union" is an alternative to penetration and means coming applicable into contact. Note to Judge In the event of multiple perpetrators, give instruction on enhancement, F.S. . Note to Judge The option of the word "[with] (victim)" in 2a and 2c is provided to reflect the manner in which the crime was committed. (Fla. 1st DCA 1986), at pages 627, 628. SEXUAL BATTERY — VICTIM TWELVE YEARS OF AGE OR OLDER — GREAT FORCE — F.S. (3) Before you can find the defendant guilty of sexual battery upon a person twelve years of age or older with the use of a deadly weapon or physical force, the State must prove the following four elements beyond a reasonable doubt: Elements 1. (Victim) was twelve years of age or older. 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.] 3. (Defendant) in the process a. [used or threatened to use a deadly weapon.] b. [used actual physical force likely to cause serious personal injury.] 4. The act was done without the consent of (victim). Definitions Give in all "Consent" means intelligent, knowing and voluntary consent cases and does not include coerced submission. Give if Evidence of the victim's mental incapacity or defect, if applicable any, may be considered in determining whether there was an intelligent, knowing and voluntary consent. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or intoxicating substance administered to that person without his or her consent or due to any other act committed upon that person without his or her consent. "Mentally defective" means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct. "Union" is an alternative to penetration and means coming into contact. Give if A weapon is a "deadly weapon" if it is used or threatened 3a alleged to be used in a way likely to produce death or great bodily harm. Give if "Serious personal injury" means great bodily harm or pain, 3b alleged permanent disability, or permanent disfigurement. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Note to Judge In the event of multiple perpetrators, give instruction on enhancement, F.S. . Note to Judge The option of the word "[with] (victim)" in 2a is provided to reflect the manner in which the crime was committed. (Fla. 1st DCA 1986), at pages 627, 628. SEXUAL BATTERY — VICTIM TWELVE YEARS OF AGE OR OLDER — CIRCUMSTANCES SPECIFIED — F.S. (4) Before you can find the defendant guilty of sexual battery upon a person twelve years of age or older under specified circumstances, the State must prove the following four elements beyond a reasonable doubt: Elements 1. (Victim) was twelve years of age or older. 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.] 3. a [(Victim) was physically helpless to resist.] b. [(Defendant) coerced (victim) to submit by threatening to use force or violence likely to cause serious personal injury and (victim) reasonably believed that (defendant) had the present ability to execute the threat.] c. [(Defendant) coerced (victim) to submit by threat of retaliation against (victim) or any other person and (victim) reasonably believed that (defendant) had the ability to execute the threat in the future.] d. [(Defendant), without prior knowledge or consent of (victim), administered or had knowledge of someome else administering to (victim) a narcotic, anesthetic or other intoxicating substance that mentally or physically incapacitated (victim).] e. [(Victim) was mentally defective and (defendant) had reason to believe this or had actual knowledge of that fact.] 4. The act was committed without the consent of (victim). Definitions Give in all "Consent" means intelligent, knowing, and voluntary consent cases and does not include coerced submission. Give if Evidence of the victim's mental incapacity or defect, if applicable any, may be considered in determining whether there was an intelligent, knowing and voluntary consent. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent. "Mentally defective" means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct. "Union" is an alternative to penetration and means coming into contact. Give if "Physically helpless" means that a person is unconscious, 3a alleged asleep or for any other reason physically unable to communicate unwillingness to act. Give if "Serious personal injury" means great bodily harm or pain, 3b alleged permanent disability, or permanent disfigurement. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Note to Judge In the event of multiple perpetrators, give instruction on enhancement, F.S. . Note to Judge The option of the word "[with] (victim)" in 2a is provided to reflect the manner in which the crime was committed. (Fla. 1st DCA 1986), at pages 627, 628. SEXUAL BATTERY — PERSON TWELVE YEARS OF AGE OR OLDER — SLIGHT FORCE — F.S. (5) Before you can find the defendant guilty of sexual battery upon a person twelve years of age or older by the use of slight force, the State must prove the following four elements beyond a reasonable doubt: Elements 1. (Victim) was twelve years of age or older. 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.] 3. (Defendant) in the process used physical force and violence not likely to cause serious personal injury. 4. The act was committed without the consent of (victim). Definitions Give in "Consent" means intelligent, knowing and voluntary consent all cases and does not include coerced submission. "Serious personal injury" means great bodily harm or pain, permanent disability, or permanent disfigurement. Give if Evidence of the victim's mental incapacity or defect, if applicable any, may be considered in determining whether there was an intelligent, knowing and voluntary consent. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person with his or her consent. "Mentally defective" means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct. "Union" is an alternative to penetration and means coming into contact. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Note to Judge In the event of multiple perpetrators, give instruction on enhancement, F.S. . Note to Judge The option of the word "[with] (victim)" in 2a is provided to reflect the manner in which the crime was committed. (Fla. 1st DCA 1986), at pages 627, 628. SOLICITATION OF CHILD TWELVE YEARS OF AGE OR OLDER BUT UNDER EIGHTEEN YEARS OF AGE TO ENGAGE IN SEXUAL ACTIVITY BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY — F.S. 794.041(2)(a) Before you can find the defendant guilty of solicitation of a child to engage in sexual activity by a person in familial or custodial authority, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Child) was twelve years of age or older but less than eighteen years of age. 2. (Defendant) stood in the position of familial or custodial authority with regard to (child); 3. (Defendant) [commanded] [encouraged] [hired] [requested] [tried to induce] (child) to engage in sexual activity in which: a. [the sexual organ of the [(defendant)] [(victim)] would penetrate or have union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].] b. [the [anus] [vagina] of (victim) would be penetrated by an object.] It is not necessary that such sexual activity actually take place for the crime to be completed. It is not a defense that (child) was willing to engage in such sexual activity or consented to engage in such sexual activity. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Definition Give if "Union" is an alternative to penetration and means coming applicable into contact. SEXUAL ACTIVITY WITH CHILD TWELVE YEARS OF AGE OR OLDER BUT UNDER EIGHTEEN YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY F.S. 794.041(2)(b) Before you can find the defendant guilty of sexual activity with a child by a person in familial or custodial authority, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Child) was twelve years of age or older but less than eighteen years of age. 2. (Defendant) stood in the position of familial or custodial authority with regard to (child). 3. (Defendant) engaged in sexual activity with (child) in which: a. [the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)].] b. [the [anus] [vagina] of (victim) was penetrated by an object.] It is not a defense that (child) was willing to engage in such sexual activity or consented to engage in such sexual activity. Give if However, any act done for bona fide medical purposes is not applicable a sexual battery. Definition Give if "Union" is an alternative to penetration and means coming applicable into contact. LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY F.S. Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Victim) was under the age of sixteen years. Give as 2. (Defendant) applicable Subsection (1) [made an assault upon (victim) in a lewd, lascivious or indecent manner.] [handled or fondled (victim) in a lewd, lascivious or indecent manner.] Subsection (2) [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)].] [committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.] Subsection (3) [knowingly committed a lewd or lascivious act in the presence of (victim).] Definitions Give in all Neither the victim's lack of chastity nor the victim's cases consent is a defense to the crime charged. Give when As used in regard to this offense the words "lewd," F.S. (1) "lascivious" and "indecent" mean the same thing. They mean is charged a wicked, lustful, unchaste, licentious or sensual intent on the part of the person doing an act. Give when An "assault" is an intentional, unlawful threat by word assault is or act to do violence to the person of another, coupled charged under with an apparent ability to do so, and doing some act which F.S. (1) creates a well-founded fear in such other person that such violence is imminent. Give when As used in regard to this offense the words "lewd" and F.S. (3) "lascivious" mean the same thing and mean a wicked, is charged lustful, unchaste, licentious or sensual intent on the part of the person doing an act. Note to Judge There is no need to make reference to the words "without committing the crime of sexual battery" because this refers to forcible sexual relations. (Fla. 3d DCA 1983); Chapter 84-86, Laws of Florida. CONTRABAND IN COUNTY DETENTION FACILITY (F.S. ) Before you can find the defendant guilty of the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [introduced contraband into] [knowingly possessed contraband in] [gave contraband to an inmate in] [received contraband from an inmate in] [took contraband from] [attempted to take or send contraband from] a county detention facility. 2. (Defendant) did not do so through regular channels as duly authorized by the Sheriff or officer in charge of the facility. The court now instructs you that for purposes of this offense, "contraband" means: Select definition (any currency or coin.) depending upon (any article of food or clothing.) item alleged (any written or recorded communication.) (any intoxicating beverage or beverage which causes or may cause an intoxicating effect.) (any narcotic, hypnotic or excitative drug.) (any drug of any kind, including nasal inhalation) (sleeping pill) (barbiturate.) (any controlled substance, [item alleged] is a controlled substance.) (any firearm.) (any instrumentality that may be or is intended to be used as a dangerous weapon.) (any instrumentality that may be or is intended to be used as an aid in attempting to escape.) Note to Judge: "County detention facility" means a county jail, a county In event stockade, a county prison camp and any other place used by municipal a county or county officer to detain persons charged with facility or convicted of crimes, including the grounds thereof. involved, see statute. Definitions To "introduce" means to put inside or into. Give as applicable Note to Judge: See p. 220 for definition of "possession." 3.04(g) — VOLUNTARY INTOXICATION A defense asserted in this case is voluntary intoxication by use of [alcohol] [drugs]. The use of [alcohol] [drugs] to the extent that it merely arouses passions, diminishes perceptions, releases inhibitions or clouds reason and judgment does not excuse the commission of a criminal act. However, where a certain mental state is an essential element of a crime, and a person was so intoxicated that he was incapable of forming that mental state, the mental state would not exist and therefore the crime could not be committed. As I have told you, [the intent to (specific intent charged)] [premeditated design to kill] [(other mental state)] is an essential element of the crime of (crime charged). Therefore, if you find from the evidence that the defendant was so intoxicated from the voluntary use of [alcohol] [drugs] as to be incapable of forming [the intent to (specific intent charged)] [premeditated design to kill] [(other mental state)], or you have a reasonable doubt about it, you should find the defendant not guilty of (crime charged). Give where other Voluntary intoxication is not a defense to (lesser applicable included crimes) (crimes charged in additional counts). crimes are general intent crimes DUI MANSLAUGHTER F.S. 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 a vehicle. 2. (Defendant), by reason of such operation, caused the death of (victim). 3. At the time of such operation (defendant) Give 3a and/or 3b a. [was under the influence of] [alcoholic beverages] as applicable [a chemical substance] [a controlled substance] to the extent that his normal faculties were impaired.] b. [had a blood alcohol level of 0.10 percent or higher.] Definitions Give as "Vehicle" is any device, in, upon, or by which any person applicable or property is or may be transported or drawn upon a F.S. highway, except devices used exclusively upon stationary (76) rails or tracks. "Normal faculties" means those faculties of a person, such as the ability to see, hear, walk, talk, make judgments, and, in general, to normally perform the many mental and physical acts of our daily lives. F.S. (1) (_________) is a chemical substance under Florida law. Ch. 893, F.S. (_________) is a controlled substance under Florida law. "Alcoholic beverages" are considered to be beer, wine, whiskey, and all other alcoholic beverages of any kind and description which are made for human consumption. Note to Judge In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by F.S. . ACCESSORY AFTER THE FACT F.S. Before you can find the defendant guilty of being an accessory after the fact, the State must prove the following five elements beyond a reasonable doubt: Elements 1. A (felony alleged) was committed by (name of person committing felony). 2. After the (felony alleged) was committed (defendant) maintained, assisted or gave any other aid to (name of person committing felony). 3. At that time (defendant) knew that (name of person committing felony) had committed the (felony alleged). 4. (Defendant) did so with the intent that (name of person committing felony) avoid or escape detection, arrest, trial or punishment. 5. (Defendant) was not related to (name of person committing felony) by blood or marriage as husband, wife, parent, grandparent, child, grandchild, brother or sister. Note to Judge Define the felony 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. First degree Second degree (depraved Second degree (felony) (premeditated) murder mind) murder — (2) murder — (3) — (1) Manslaughter — Third degree (felony) murder — (4) Attempt Vehicular homicide — Culpable negligence — (2) Aggravated battery — Aggravated assault — Battery — Assault — First degree (felony) None Attempt murder — (1) Second degree (depraved mind) murder — (2) Second degree (felony) murder — (3) Manslaughter — Third degree (felony) murder — (4) Aggravated battery — Aggravated assault — Battery — Assault — Second degree (depraved Manslaughter — Third degree (felony) mind) murder — murder — (4) (2) Attempt Vehicular homicide — Culpable negligence — (2) Aggravated battery — Aggravated assault — Battery — Assault — Second degree (felony) None Third degree (felony) murder — (3) murder — (4) Attempt Third degree (felony) None Attempt murder — Aggravated assault (4) — Battery — Assault — Manslaughter — None Attempt Aggravated assault — Battery — Assault — Vehicular homicide — Culpable negligence — (2) Culpable negligence — (1) Assault — None Attempt Aggravated assault — Assault — Attempt (1)(a) Improper exhibition of dangerous weapons or firearms — Discharging firearms in public — Aggravated assault — Assault — Attempt (1)(b) Battery — None Attempt Aggravated battery Battery — Attempt — (1)(a) Aggravated battery Battery — Attempt — (1)(b) Improper exhibition of dangerous weapons or firearms — Discharging firearms in public — Culpable negligence — Culpable negligence None (2) — (1) Assault of law None Attempt enforcement officer Assault — — (2) Battery of law None Attempt enforcement officer Battery — — (2) Kidnapping — False imprisonment Attempt — Aggravated assault — (1)(b) Battery — (1)(a) Assault — Carrying concealed firearm — (2) Improper exhibition of dangerous firearms — Discharging firearms in None Attempt public — Furnishing weapons to None Attempt minors under 18 years of age, etc. — Selling arms to minors None Attempt by dealers — Felons; possession of None Attempt (may be firearms unlawful; applicable when exception; penalty — concealed weapon is charged) Carrying concealed firearm — (2) Carrying concealed weapon — (1) Sexual battery — Battery — Attempt (2) Assault — Aggravated assault — (1)(a) Aggravated battery — (1)(a) Sexual battery — Battery — Attempt (3) Aggravated battery — (1)(a) Aggravated assault — (1)(a) Assault — Sexual battery — (4) Sexual battery — (5) Sexual battery — Battery — Attempt (4) Aggravated assault — (1)(a) Assault — Sexual battery — (5) Sexual battery — Battery — Attempt (5) Assault — Unnatural and lascivious None Attempt act — Exposure of sexual None Unnatural and organs — lascivious act — Lewd, lascivious, or None Attempt indecent assault or Assault — act upon or in Battery — presence of child — Unnatural and lascivious act — Arson — (1) Arson — (2) Attempt Criminal mischief Criminal mischief — (1)(b)1 — (1)(b)2 Criminal mischief — (1)(b)3 Possession of cannabis — (1)(e) Possession or delivery of cannabis — (1)(f) Criminal mischief — (2) Criminal mischief — None Attempt (1)(b)1 Criminal mischief — Criminal mischief Attempt (1)(b)2 — (1)(b)1 Criminal mischief Criminal mischief Attempt — (1)(b)3 — (1)(b)1 Criminal mischief — (1)(b)2 Burglary with assault Burglary — Attempt or battery or while (3) Burglary of dwelling armed — (2) or with human being inside — (3) Trespass — (2)(a) Trespass — (2)(c) Burglary of dwelling or Burglary — (3) Attempt with human being Trespass — inside — (2)(a) (3) Trespass — (2)(b) Burglary — None Attempt (3) Trespass — (2)(a) Possession of burglary None None tools — Possession of altered None Attempt property — Dealing in stolen None None property — trafficking — (1) Dealing in stolen (1) Attempt property — managing and trafficking — (2) Robbery with a firearm Robbery with a weapon Attempt or deadly weapon — — (2)(b) Grand theft 1st (2)(a) Robbery — degree — (2)(c) (2)(a) Petit theft — Grand theft 2d (2)(c) degree — (2)(b) Battery — Aggravated battery — Assault — Aggravated assault — Extortion — See (Fla.2d DCA 1973) Robbery with a weapon Robbery — Attempt — (2)(b) (2)(c) Grand theft 1st Petit theft — degree — (2)(c) (2)(a) Grand theft 2d degree — (2)(b) Battery — Aggravated battery — Assault — Aggravated assault — Extortion — See (Fla.2d DCA 1973) Robbery — Petit theft — Attempt (2)(c) (2)(c) Grand theft 1st degree — (2)(a) Grand theft 2d degree — (2)(b) Battery — Assault — Aggravated assault — Extortion — See (Fla.2d DCA 1973) Child abuse — Child abuse — Attempt, if willfully (1) (2) Negligent treatment of child — 827.05 Child abuse — None Attempt, if willfully (2) Negligent treatment of child — 827.05 Forgery — None Attempt Uttering forged None No attempt — instrument — (Fla. 1st DCA 1975) Stopping payment; None Attempt, except when purchase of farm or uttering is charged grove products — — under $50 Stopping payment with None Attempt, except when intent to defraud — uttering is charged; if farm or grove product under $50 Worthless check — (2) (second degree misdemeanor) Worthless checks — None Attempt, except when (2) uttering is charged Bookmaking — None Attempt (2) Bookmaking — Bookmaking — Attempt (3) (2) Bookmaking on grounds of permit-holder — 550.361 Driving under the None Attempt influence — (1) DUI with damage to DUI — (1) None property or person — (3)(c)1. DUI with serious bodily DUI — (1) DUI — (3)(c)1. injury — (3)(c)2. DUI manslaughter — DUI — (1) Vehicular homicide (3)(c)3. — DUI — (3)(c)2. DUI — (3)(c)1. Sale, manufacture, None Attempt, except when delivery or possession delivery is charged; with intent to sell, (1)(f) if possession or manufacture or deliver delivery of cannabis controlled substance charged — (1)(a) (1)(e) if possession is charged Sale, delivery or None Attempt, except when possession of more delivery is charged than 10 grams of (1)(a) controlled substance (1)(e) if — (1)(b) possession is charged Delivery of controlled None (1)(a) substance to person (1)(f) if under 18 years old — cannabis charged (1)(c) Bringing controlled None Attempt substance into state — (1)(e) (1)(d) (1)(f) if cannabis charged Possession of controlled None Attempt; (1)(f) substance — if cannabis charged (1)(e) Offense of possession or None Attempt, except when delivery of not more delivery is charged than 20 grams of cannabis — (1)(f) Obtaining controlled None substances by fraud — (3)(a)(1) Possession of drug None Attempt paraphernalia — (1) Delivery, possession None Attempt, except when with intent to delivery is charged deliver, or manufacture with intent to deliver drug paraphernalia — (2) Delivery of drug None None paraphernalia to a minor — (3) Trafficking in cannabis None Attempt, except when — (1)(a) delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing cannabis into state — (1)(d) Trafficking in cocaine — None Attempt, except when (1)(b) delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing cocaine into state — (1)(d) Possession of cocaine — (1)(e) Trafficking in illegal None Attempt, except when drugs — (1)(c) delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing same illegal drug as charged into state — (1)(d) Possession of same illegal drug — (1)(e) Trafficking in None Attempt, except when phencyclidine — delivery is charged (1)(d) (1)(a) if sale, manufacture or delivery is charged Bringing phencyclidine into state — (1)(d) Possession of phencyclidine — (1)(e) Trafficking in None Attempt, except when methaqualone — delivery is charged (1)(e) (1)(a) if sale, manufacture or delivery is charged Bringing methaqualone into state — (1)(d) Possession of methaqualone — (1)(e)
SHAW, Justice, specially concurring.
The last comprehensive review and revision of the Standard Jury Instructions in Criminal Cases occurred during the period 1977-81. We approved the report of the committee, with modifications, in April 1981. In the matter of USE BY the TRIAL COURTS OF the STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES and the Standard Jury Instructions in Misdemeanor Cases, 431 So.2d 594 (Fla. 1981). The Schedule of Lesser Included Offenses included therein was grounded on Brown v. State, 206 So.2d 377 (Fla. 1968), and the single transaction rule.
The schedule of lesser included offenses has not been reviewed and revised to conform it to section 775.021(4), Florida Statutes (1976), as amended thereafter by chapter 83-156, section 1, Laws of Florida. Section 775.021(4), Florida Statutes (1983), abrogates the single transaction rule by mandating that there be separate convictions and sentences for all separate offenses occurring in the course of one criminal transaction or episode. The statute, as amended in 1983, also mandates that offenses are separate if each offense requires proof of an element not present in the other and that this determination will be based exclusively on the statutory elements of the offenses, not the accusatory pleadings or the proof adduced at trial. The effect of the 1983 change was to define and limit lesser included offenses to those offenses whose statutory elements are completely subsumed within the greater charged offense, i.e., those which are not separate offenses. This requires that two basic changes be made to the schedule of lesser included offenses. First, because permissive lesser included offenses (category two) are based on the accusatory pleadings and proof at trial and their statutory elements are, by this Court's definition, not subsumed within the charged greater offense, they are, by legislative definition, separate offenses. Consequently, category two offenses, if truly permissive, cannot be instructed on as lesser included offenses and the entire category must be deleted from the schedule of lesser included offenses. Second, the definition and method of determining separate offenses must be rigorously applied to category one, necessarily included lesser offenses, to ensure that each category one offense is in fact statutorily subsumed within the charged greater offense and not a separate offense.
I agree with the recommendations and changes contained herein because they are necessary in order to ensure consistency within the schedule as it now exists. However, because we have never tasked the committee with reexamining the schedule in light of section 775.021(4), the changes perpetuate the inherent errors which result from faulty policy premises, i.e., the single transaction rule and Brown. Accordingly, I call again for a comprehensive review and revision of the schedule of lesser included offenses and Florida Rules of Criminal Procedure 3.490 and 3.510 to conform them to section 775.021(4). For a fuller examination of these faulty premises, errors, and flaws, see my dissents in Wilcott v. State, 509 So.2d 261 (Fla. 1987), State v. Wimberly, 498 So.2d 929 (Fla. 1986); Linehan v. State, 476 So.2d 1262 (Fla. 1985); and Green v. State, Shaw, J., concurring in result only, 475 So.2d 235 (Fla. 1985).