603 So.2d 1175 (1992)
STANDARD JURY INSTRUCTIONS CRIMINAL CASES NO. 92-1.
No. 79320.Supreme Court of Florida.
July 2, 1992.Harry Lee Coe III, Chair, Committee on Standard Jury Instructions (Criminal), Tampa, for petitioner.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted recommended amendments to the Florida Standard Jury Instructions in Criminal Cases. The explanatory portion of the report is quoted below:
REPORT (NO. 92-1) OF THE COMMITTEE ON STANDARD JURY INSTRUCTIONS (CRIMINAL)TO THE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA:
Your Committee on Standard Jury Instructions (Criminal) recommends that The Florida Bar be authorized to publish amendments to FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES. The proposed additional instructions and revised instructions are attached.
After the title of each instruction, a parenthetical description of the proposal is given. The proposal is described as "(Amended)," "(Revised)," or "(New)." "Amended" means that the wording is not substantially revised; the added words are underlined and the deleted words have strike-overs. "Revised" means that the language has changed substantially and that no attempt is made to show the changes with underlines and strike-overs. "New" means that the instruction is based on a statute for which no current instruction exists. Short explanations also follow each proposal.
Some of the proposed instructions were published on April 15, 1989. Those proposals along with many new proposals were published in the February 15, 1991, Bar News.
No responses were received to the first publication. Two letters in response to the second publication were received. The committee has considered the responses and has amended its proposals to conform substantially to the suggestions made.
A few of the committee's suggested changes have not been published in the Bar News. To allow all interested parties a final opportunity to review the proposals, the committee is asking The Florida Bar to publish a notice that amendments have been filed, that a copy of this report can be obtained at cost for review, and that comments should be submitted by March 15, 1992, to the court.
A copy of this report also is being sent to the presidents or chairs of the Florida Prosecuting Attorneys Association, the Florida Public Defenders Association, the jury instructions subcommittee of the Criminal Law Section of The Florida Bar, and the Conference of Circuit Court Judges.
One of the committee's recommendations pertained to the instruction on excusable homicide. The so-called short-form instruction on this subject is found in the introduction to homicide on pages 61 and 62 of the manual, and the so-called long form is found on page 76 of the manual. The current instructions provide that the short *1176 form shall be read in all murder and manslaughter cases, and that the long form shall also be read whenever excusable homicide is an issue in the case. The committee concludes that the long form as last amended in State v. Smith, 573 So.2d 306 (Fla. 1990), is incorrect because it requires under all three of the alternative circumstances that the killing be committed by accident and misfortune. The committee believes that a killing upon sudden combat without any dangerous weapon being used and not done in a cruel and unusual manner need not have occurred by accident and misfortune and has recommended an instruction to this effect. The committee suggests that its recommended instruction replace both the current short- and long-form instructions and that the new instruction not be given where there is no basis for it in the evidence. We respectfully disagree with the committee's recommendation on this subject.
Section 782.03, Florida Statutes (1991), reads as follows:
782.03 Excusable homicide. Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
We believe the most logical interpretation of this language is as follows:
Homicide is excusable when committed (1) by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or (2) by accident and misfortune
(a) in the heat of passion upon any sudden and sufficient provocation, or
(b) upon a sudden combat without any dangerous weapon being used and not done in a cruel and unusual manner.
Thus, a killing which results from sudden combat must have been committed by accident and misfortune. This view is supported by logic as well as the language of the statute. We do not believe the legislature would have intended to always excuse a homicide that occurred during sudden combat so long as a dangerous weapon was not used and it was not done in a cruel or unusual manner. If this were so, anyone who became involved in a fight and later purposefully killed his opponent would be excused if he did not use a dangerous weapon and did not do the killing in a cruel and unusual manner. We interpret the sudden combat exception to protect a person who becomes involved in a fight which accidentally leads to the death of the other party.
Furthermore, we do not concur with the committee's suggestion that no portion of the excusable homicide instruction need be read when it has no basis in the evidence. We say this because Florida case law has consistently held that manslaughter is a residual offense which cannot be properly defined without an explanation that justifiable homicide and excusable homicide are excluded from the crime. Rojas v. State, 552 So.2d 914 (Fla. 1989); Hedges v. State, 172 So.2d 824 (Fla. 1965). Because a manslaughter instruction will have to be given in every homicide case, the instruction on excusable homicide will also have to be included. We do, however, concur with the committee's suggestion that only one instruction on excusable homicide need be given rather than both the current short and long forms.
Therefore, we hold that the following instruction on excusable homicide shall be given in every homicide case in place of the short form now found on pages 61 and 62 of the manual.
EXCUSABLE HOMICIDE
The killing of a human being is excusable and therefore lawful, under any one of the following three circumstances:
1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with *1177 usual ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.
"Dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.
Because this instruction will adequately cover the subject even when excusable homicide is an issue in the case, the long-form instruction now found on page 76 of the manual need not be given and shall be eliminated. The new pages 61 and 62 are included in the appendix to this opinion as pages A-10 and A-11 in lieu of the amendment to the long-form instruction on excusable homicide proposed by the committee.
All of the other recommendations of the committee, which are included in the appendix to this opinion, are approved for publication. 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. We wish to express our appreciation to the committee for its dedication in presenting to the Court its comprehensive recommendations.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
*1178 APPENDIX
2.04(c) DEFENDANT TESTIFYING (Amended)
Give if The defendant in this case has become a witness. You should defendant apply the same rules to consideration of [his] [her] testimony requests that you apply to the testimony of the other witnesses.
Explanation of amendments: This instruction is on page 18 of the manual. The note in the margin is being removed because the committee believes that this instruction should be given any time the defendant testifies.
Feminine pronouns have been added to this and the other proposed instructions to avoid gender bias.
[Page A-1]
*1179 MISCELLANEOUS INSTRUCTIONS 3.01 PRINCIPALS (Amended) F.S. 777.011 If two or more persons help each other [commit] [attempt to commit] a crime and the defendant is one of them, the defendant is a principal and must be treated as if [he] [she] had done all of the things the other person or persons did if the defendant: 1. Knew what was going to happen, 2. Intended to participate actively or by sharing in an expected benefit and 3. Actually did something by which [he] [she] intended to help [commit] [attempt to commit] the crime. "Help" means to aid, plan or assist. See State v. To be a principal, the defendant does not have to be Dene, present when the crime is [committed] [or] [attempted]. 533 So.2d 265 (Fla. 1988) Note to Omit last sentence when felony murder is charged. Judge
Explanation of amendments: This instruction is from page 32a of the manual. The note to judge is obsolete in light of State v. Dene.
[Page A-2]
*1180 3.01(a) PRINCIPALS WHEN ACTIVE PARTICIPANT HIRED BY DEFENDANT (Amended) F.S. 777.011 If the defendant paid or promised to pay another person or persons to [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he] [she] had done all of the things the person who received the money did if: 1. The defendant knew what was going to happen, 2. [He] [She] made or promised the payment in exchange for the commission or promise to commit the crime or to help commit the crime and 3. The [crime] [attempt] was committed by (co-conspirator). Note to Omit last sentence when felony murder is charged. Judge See State v. To be a principal, the defendant does not have to be Dene, present when the crime is [committed] [or] [attempted]. 533 So.2d 265 (Fla. 1988)
Explanation of amendments: This instruction is from page 33 of the manual. The note to judge is obsolete in light of State v. Dene.
[Page A-3]
*1181
3.04(e) JUSTIFIABLE USE OF NONDEADLY FORCE
(Amended)
Note to Since there are many defenses applicable to self-defense,
Judge give only those parts of the instructions that are required by
the evidence.
Read in all An issue in this case is whether the defendant acted in
cases self-defense. It is a defense to the offense with which
(defendant) is charged if the [injury to] (victim) resulted
from the justifiable use of force not likely to cause death
or great bodily harm.
In defense of (Defendant) would be justified in using force not likely to
person F.S. cause death or great bodily harm against (victim) if the
776.012 following two facts are proved:
Give if 1. (Defendant) must have reasonably believed that such
applicable conduct was necessary to defend ([himself)], [herself]
([another)], against (victim's) imminent use of unlawful
force against the [defendant] ([other person)].
2. The use of unlawful force by (victim) must have appeared
to (defendant) ready to take place.
In defense of (Defendant) would be justified in using force not likely to
property F.S. cause death or great bodily harm against (victim) if the
776.031 following three facts are proved:
Give if 1. (Victim) must have been trespassing or otherwise
applicable wrongfully interfering with land or personal property.
2. The land or personal property must have lawfully been
in (defendant's) possession, or in the possession of a
member of [his] [her] immediate family or household, or
in the possession of some person whose property [he]
[she] was under a legal duty to protect.
[Page A-4]
*1182
3. (Defendant) must have reasonably believed that [his]
[her] use of force was necessary to prevent or
terminate (victim's) wrongful behavior.
Aggressor The use of force not likely to cause death or great bodily
F.S. 776.041 harm is not justifiable if you find:
Give if 1. (Defendant) was attempting to commit, committing or
applicable escaping after the commission of a (applicable forcible
felony).
Define
applicable 2. (Defendant) initially provoked the use of force against
forcible [himself] [herself], unless:
felony
(a) The force asserted toward the defendant was so great
that [he] [she] reasonably believed that [he] [she]
was in imminent danger of death or great
bodily harm and had exhausted every reasonable means
to escape the danger, other than using force not
likely to cause death or great bodily harm to
(assailant).
(b) In good faith, the defendant withdrew from physical
contact with (assailant) and indicated clearly to
(assailant) that [he] [she] wanted to withdraw and
stop the use of force not likely to cause death or
great bodily harm, but (assailant) continued or
resumed the use of force.
Force in A person is not justified in using force to resist an arrest
resisting by a law enforcement officer who is known, to be or reasonably
arrest appears to be a law enforcement officer.
F.S.
776.051(1)
and F.S.
776.012
Give if However, if an officer uses excessive force to make an
applicable arrest, then a person is justified in the use of reasonable
force
[Page A-5]
*1183 See Ivester to defend [himself] [herself] ([or another)], but only to v. State, the extent [he] [she] reasonably believes such force 398 So.2d 926 is necessary. (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction. Read in all In deciding whether the defendant was justified in the use cases of force not likely to cause death or great bodily harm, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of force not likely to cause death or great bodily harm, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Necessity to The defendant cannot justify his use of force not likely to avoid use of cause death or great bodily harm unless he used every deadly force reasonable means within his power and consistent with his own Read in all safety to avoid the danger before resorting to that force. cases
[Page A-6]
*1184
Reputation of If you find that (victim) had a reputation of being a
victim violent and dangerous person and that [his] [her] reputation
was known to the defendant, you may consider this fact in
determining whether the actions of the defendant were those
Give if of a reasonable person in dealing with an individual of
applicable that reputation.
Physical In considering the issue of self-defense, you may take into
abilities account the relative physical abilities and capacities of
Read in all the defendant and (victim).
cases
Read in all If in your consideration of the issue of self-defense you
cases have a reasonable doubt on the question of whether or not
the defendant was justified in the use of force not likely to
cause death or great bodily harm, you should find the
defendant not guilty.
However, if from the evidence you are convinced that the
defendant was not justified in the use of force not likely to
cause death or great bodily harm, then you should find [him]
[her] guilty if all the elements of the charge have been
proved.
Explanation of amendments: This instruction is on pages 44-45b of the manual. The paragraph being deleted does not seem to be a correct statement of law. The note in the margin indicates that the paragraph is about the use of deadly force, but the paragraph actually talks about nondeadly force. In doing so, it apparently is inaccurate. The committee is in agreement that no duty to use "every reasonable means ... to avoid the danger exists under Florida law." See Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1980) (footnote 1).
[Page A-7]
*1185
3.05(c) AGGRAVATION OF A FELONY BY COMMITTING AN
AGGRAVATED BATTERY (New)
F.S. 775.087(1)
Note to This instruction should not be given in conjunction with
Judge the instructions pertaining to any felony in which the use of
a weapon is an essential element.
If you find that (defendant) committed (felony as identified
by F.S. 775.087(1)) and you also find that during the
commission of the crime the defendant committed an aggravated
battery, you should find the defendant guilty of (felony) with
an aggravated battery.
Definitions "Aggravated battery" is legally defined as (read applicable
instructions).
If you find only that defendant committed (felony, as
identified in F.S. 775.087(1)) but did not commit an
aggravated battery, then you should find the defendant
guilty only of (felony).
Explanation of proposed instruction: This instruction is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(1) in 1989.
[Page A-8]
*1186
3.05(d) AGGRAVATION OF A FELONY BY POSSESSION OF A
FIREARM OR DESTRUCTIVE DEVICE (New)
F.S. 775.087(2)
If you find that (defendant) committed (felony identified by
F.S. 775.087(2)) and you also find that during the commission
of the crime the defendant possessed
[a firearm]
[a destructive device]
[a semiautomatic firearm and its high-capacity
detachable box magazine]
[a machine gun],
you should find the defendant guilty of (felony) with
(applicable firearm(s)/device).
Definitions Give applicable definitions as contained in F.S. 790.001(4),
F.S. 790.001(6), F.S. 775.087(2)(b), and F.S. 790.001(9).
If you find only that defendant committed (felony, as
identified in F.S. 775.087(2)) but did not possess a
(applicable firearm(s)/device), then you should find the
defendant guilty only of (felony).
Explanation of proposed instruction: This is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(2) in 1989.
[Page A-9]
*1187
INTRODUCTION TO HOMICIDE
Note to Read in all murder and manslaughter cases.
Judge
In this case (defendant) is accused of (crime charged).
Give degrees Murder in the First Degree includes the lesser crimes of
as applicable Murder in the Second Degree, Murder in the Third Degree and
Manslaughter, all of which are unlawful.
A killing that is excusable or was committed by the use of
justifiable deadly force is lawful.
If you find (victim) was killed by (defendant), you will
then consider the circumstances surrounding the killing in
deciding if the killing was (crime charged) or was [Murder
in the Second Degree] [Murder in the Third Degree]
[Manslaughter], or whether the killing was excusable or
resulted from justifiable use of deadly force.
JUSTIFIABLE HOMICIDE
F.S. 782.02 The killing of a human being is justifiable homicide and
lawful if necessarily done while resisting an attempt to
murder or commit a felony upon the defendant, or to commit a
felony in any dwelling house in which the defendant was at the
time of the killing.
EXCUSABLE HOMICIDE
F.S. 782.03 The killing of a human being is excusable, and therefore
lawful, under any one of the following three circumstances:
1. When the killing is committed by accident and misfortune
in doing any lawful act by lawful means with usual
ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident or misfortune in the
heat of passion, upon any sudden and sufficient
provocation, or
[Page A-10]
*1188
3. When the killing results from a sudden combat, without
any dangerous weapon being used and not done in a cruel
and unusual manner.
3. When the killing is committed by accident and misfortune
resulting from a sudden combat, if a dangerous weapon is
not used and the killing is not done in a cruel or
unusual manner.
Definition "Dangerous weapon" is any weapon that, taking into account
the manner in which it is used, is likely to produce death or
great bodily harm.
I now instruct you on the circumstances that must be proved
before (defendant) may be found guilty of (crime charged) or
any lesser included crime.
Note to For complete instructions on Self-defense and Excusable
Judge Homicide, if in issue, see pages [40, 44] and 76 respectively
40 and 44.
[Page A-11]
*1189
FELONY MURDER FIRST DEGREE
F.S. 782.04(1)(a)
Before you can find the defendant guilty of First Degree
Felony Murder, the State must prove the following three
elements beyond a reasonable doubt:
Elements 1. (Victim) is dead.
Give 2a, 2b 2. a. [The death occurred as a consequence of and while
or 2c as (defendant) was engaged in the commission of
applicable (crime alleged).]
b. [The death occurred as a consequence of and while
(defendant), was attempting to commit (crime
alleged).]
c. [The death occurred as a consequence of and while
(defendant), or an accomplice, was escaping from the
immediate scene of (crime alleged).]
Give 3a if 3. a. [(Defendant) was the person who actually killed
defendant (victim).]
actual
perpetrator
Give 3b if b. [(Victim) was killed by a person other than
defendant not (defendant); who was involved in the commission or
actual attempt to commit (crime alleged) but both (defendant)
perpetrator and the person who killed (victim) was present and did
knowingly aid, abet, counsel, hire or otherwise
procure were principals in the commission of (crime
alleged).]
In order to convict of First Degree Felony Murder, it is not
necessary for the State to prove that the defendant had a
premeditated design or intent to kill.
[Page A-12]
*1190
Notes to 1. Define the crime alleged. If Burglary, also define
Judge crime that was the object of burglary.
2. If 2b above is given, also define "attempt" (see page
55).
3. If 3b is given, immediately give principal instruction
(3.01 on page 32a).
4. Since the statute does not require its proof, it is
not necessary to define "premeditation."
Explanation of amendments: This instruction is on page 64 of the manual. The changes are intended to conform the instruction to the holding of State v. Dene, 533 So.2d 265 (Fla. 1988).
[Page A-13]
*1191
MURDER THIRD DEGREE
F.S. 782.04(4)
Before you can find the defendant guilty of Third Degree
Murder, the State must prove the following three elements
beyond a reasonable doubt:
Elements 1. (Victim) is dead.
Give 2a, 2b 2. a. [The death occurred as a consequence of and while
or 2c as (defendant) was engaged in the commission of (crime
applicable alleged).]
b. [The death occurred as a consequence of and while
(defendant) was attempting to commit (crime alleged).]
c. [The death occurred as a consequence of and while
(defendant), or an accomplice, was escaping from the
immediate scene of (crime alleged).]
Give 3a if 3. a. [(Defendant) was the person who actually killed
defendant (victim).]
actual
perpetrator
Give 3b if b. [(Defendant) was not the person who actually killed
defendant not (victim), but was present and did knowingly aid, abet,
actual counsel, hire or otherwise procure the commission of
perpetrator (crime alleged).] [(Victim) was killed by a person
other than (defendant); but both (defendant) and the
person who killed (victim) were principals in the
commission of (crime alleged).]
It is not necessary for the State to prove the killing was
perpetrated with a design to effect death.
Notes to 1. Define the crime alleged.
Judge
[Page A-14]
*1192
2. If 2b above is given, also define "attempt" (see page
55).
3. If 3b is given, immediately give principal instruction
(3.01 on page 32a).
Explanation of amendments: This instruction is on page 67 of the manual. The changes are intended to conform the instruction to the holding of State v. Dene, 533 So.2d 265 (Fla. 1988).
[Page A-15]
*1193 MANSLAUGHTER (Amended) F.S. 782.07 Before you can find the defendant guilty of Manslaughter, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Victim) is dead. Give 2(a), 2. The death was caused by the (b) or (c) depending (a) intentional act of (defendant). upon allegations (b) intentional procurement of (defendant). and proof. (c) culpable negligence of (defendant). However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms. Note to In the event of any reinstruction on manslaughter, the Judge instructions on justifiable and excusable homicide as previously given on page 61 should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla. 1965). Definitions Give only if To "procure" means to persuade, induce, prevail upon or 2(b) alleged cause a person to do something. and proved. Give only if I will now define "culpable negligence" for you. Each of us 2(c) alleged has a duty to act reasonably toward others. If there is a and proved. violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of
[Page A-16]
*1194
care as to raise a presumption of a conscious indifference to
consequences, or which shows wantonness or recklessness, or a
grossly careless disregard of the safety and welfare of the
public, or such an indifference to the rights of others as is
equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with
an utter disregard for the safety of others. Culpable
negligence is consciously doing an act or following a course
of conduct that the defendant must have known, or reasonably
should have known, was likely to cause death or great bodily
injury.
Explanation of amendments: The instruction begins on page 68 of the manual. The addition of "intentional" to (2)(a) and (2)(b) was approved by the committee after discussion of Taylor v. State, 444 So.2d 931 (Fla. 1983).
[Page A-17]
*1195 DUI MANSLAUGHTER (Amended) F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) operated a vehicle. See Magaw 2. (Defendant), by reason of such operation, caused or v. State, contributed to the cause of the death of (victim). 537 So.2d 564 (Fla. 1989) 3. At the time of such operation (defendant) Give 3a a. [was under the influence of [alcoholic beverages] [a and/or 3b as chemical substance] [a controlled substance] to the applicable extent that [his] [her] normal faculties were impaired.] b. [had a blood alcohol level of 0.10 percent or higher.] Definitions "Vehicle" is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or Give as tracks. applicable F.S. "Normal faculties" mean those faculties of a person, such as 316.003(75) 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. (___) is a chemical substance under Florida law. 877.111(1) 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.
[Page A-18]
*1196 Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c). See State v. Rolle, 560 So.2d 1154 (Fla. 1990).
Explanation of amendments: This instruction begins on page 70 of the manual. The words "or contributed to the cause of" were added to paragraph 2 after discussing Magaw v. State, 537 So.2d 564 (Fla. 1989). The committee decided that the definition of alcoholic beverages was unnecessary and perhaps too limiting.
[Page A-19]
*1197 FELONY DUI PRIOR CONVICTIONS (New) F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) drove or was in actual physical control of a vehicle. 2. While driving or in control of the vehicle, (defendant) Give 2a a. [was under the influence of [alcoholic beverages] [a and/or 2b as chemical substance] [a controlled substance] to the applicable extent that [his] [her] normal faculties were impaired.] b. [had a blood alcohol level of 0.10 percent or higher.] Definitions "Vehicle" is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, Give as except devices used exclusively upon stationary rails or applicable tracks. F.S. "Normal faculties" mean those faculties of a person, such 316.003(75) 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. (___) is a chemical substance under Florida law. 877.111(1) Ch. 893, F.S. (___) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle, 560 So.2d 1154 (Fla. 1990).
[Page A-20]
*1198 Explanation of proposed instruction: This instruction is based on F.S. 316.193(2)(b), which was created in 1986. The instruction covers the elements of DUI only. It does not mention three prior convictions, the element that separates felony DUI from misdemeanor DUI. The issue of previous convictions must be determined after a guilty finding on the basic elements of DUI. State v. Rodriguez, 575 So.2d 1262 (Fla. 1991).
[Page A-21]
*1199
FELONY DUI SERIOUS BODILY INJURY (New)
F.S. 316.193(3)(c)2
Before you can find the defendant guilty of DUI with
serious bodily injury, the State must prove the following
three elements beyond a reasonable doubt:
Elements 1. (Defendant) drove or was in actual physical control of a
vehicle.
2. While driving or in control of the vehicle, (defendant)
Give 2a or a. [was under the influence of [alcoholic beverages] [a
2b as chemical substance] [a controlled substance] to the
applicable extent that [his] [her] normal faculties were
impaired.]
b. [had a blood alcohol level of 0.10 percent or higher.]
3. As a result (defendant) caused serious bodily injury to
(victim).
Definitions "Vehicle" is any device in, upon, or by which any person
or property is or may be transported or drawn upon a highway,
Give as except devices used exclusively upon stationary rails or
applicable tracks.
F.S. "Normal faculties" mean those faculties of a person, such
316.003(75) 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. (___) is a chemical substance under Florida law.
877.111(1)
Ch. 893, F.S. (___) is a controlled substance under Florida law.
F.S. "Serious bodily injury" means a physical condition that
316.1933 creates a substantial risk of death, serious personal
[Page A-22]
*1200 disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle, 560 So.2d 1154 (Fla. 1990).
Explanation of proposed instruction: This instruction is based on F.S. 316.193(3)(c)2, which was created in 1986.
[Page A-23]
*1201
PENALTY PROCEEDINGS CAPITAL CASES (Amended)
F.S. 921.141
Note to Give 1a at the beginning of penalty proceedings before a
Judge jury that did not try the issue of guilt. In addition, give
the jury other appropriate general instructions.
1. a. Ladies and gentlemen of the jury, the defendant has
been found guilty of (crime charged). Consequently,
you will not concern yourselves with the question of
[his] [her] guilt.
Note to Give 1b at beginning of penalty proceedings before the
Judge jury that found the defendant guilty.
b. Ladies and gentlemen of the jury, you have found the
defendant guilty of (crime charged).
2. The punishment for this crime is either death or life
imprisonment without the possibility of parole for 25
years. Final decision as to what punishment shall be
imposed rests solely with the judge of this court;
however, the law requires that you, the jury, render to
the court an advisory sentence as to what punishment
should be imposed upon the defendant.
Note to When the victim is a law enforcement officer, correctional
Judge officer, state attorney, assistant state attorney, justice,
or judge, "eligibility for release" should be inserted in
place of "possibility of parole for 25 years." See F.S.
775.0823.
Note to Give in all cases before taking evidence in penalty
Judge proceedings.
The State and the defendant may now present evidence
relative to the nature of the crime and the character of
the defendant. You are instructed that [this evidence
when considered with the evidence you have already heard]
[this evidence] is presented in order that you might
determine, first, whether sufficient aggravating
circumstances exist that
[Page A-24]
*1202
would justify the imposition of the death penalty and,
second, whether there are mitigating circumstances
sufficient to outweigh the aggravating circumstances, if
any. At the conclusion of the taking of the evidence and
after argument of counsel, you will be instructed on the
factors in aggravation and mitigation that you may consider.
Note to Give after the taking of evidence and argument.
Judge
Ladies and gentlemen of the jury, it is now your duty to
advise the court as to what punishment should be imposed
upon the defendant for [his] [her] crime of (crime charged).
As you have been told, the final decision as to what
punishment shall be imposed is the responsibility of the
judge; however, it is your duty to follow the law that will
now be given you by the court and render to the court an
advisory sentence based upon your determination as to whether
sufficient aggravating circumstances exist to justify the
imposition of the death penalty and whether sufficient
mitigating circumstances exist to outweigh any aggravating
circumstances found to exist.
Your advisory sentence should be based upon the evidence
[that you have heard while trying the guilt or innocence of
the defendant and evidence that has been presented to you
in these proceedings] [that has been presented to you in
these proceedings].
F.S. The aggravating circumstances that you may consider are
921.141(5) limited to any of the following that are established by the
evidence:
Note to Give only those aggravating circumstances for which
Judge evidence has been presented.
1. The crime for which (defendant) is to be sentenced was
committed while [he] [she] [was under sentence of
imprisonment] [or] [was placed on community control];
2. The defendant has been previously convicted of another
capital offense or of a felony involving the
Page A-25]
*1203
[use] [threat] of violence to some person;
Note to Since the character of a crime if involving violence or
Judge threat of violence is a matter of law, when the State offers
evidence under aggravating circumstance "2" the court should
instruct the jury of the following, as applicable:
Give a or b a. The crime of (previous crime) is a capital felony;
as applicable
b. The crime of (previous crime) is a felony involving
the [use] [threat] of violence to another person;
3. The defendant, in committing the crime for which [he]
[she] is to be sentenced, knowingly created a great risk
of death to many persons;
4. The crime for which the defendant is to be sentenced
was committed while [he] [she] was
[engaged]
[an accomplice]
in
[the commission of]
[an attempt to commit]
[flight after committing or attempting to commit]
the crime of
[robbery]
[sexual battery]
[arson]
[burglary]
[kidnapping]
[aircraft piracy]
[the unlawful throwing, placing or discharging of
a destructive device or bomb];
[Page A-26]
*1204
5. The crime for which the defendant is to be sentenced
was committed for the purpose of avoiding or preventing
a lawful arrest or effecting an escape from custody;
6. The crime for which the defendant is to be sentenced was
committed for financial gain;
7. The crime for which the defendant is to be sentenced was
committed to disrupt or hinder the lawful exercise of
any governmental function or the enforcement of laws;
8. The crime for which the defendant is to be sentenced was
especially heinous, atrocious or cruel. "Heinous" means
extremely wicked or shockingly evil. "Atrocious" means
outrageously wicked and vile. "Cruel" means designed to
inflict a high degree of pain with utter indifference
to, or even enjoyment of, the suffering of others. The
kind of crime intended to be included as heinous,
atrocious, or cruel is one accompanied by additional
acts that show that the crime was conscienceless or
pitiless and was unnecessarily torturous to the victim.
Applicable 9. The crime for which the defendant is to be sentenced was
only if committed in a cold, calculated and premeditated manner
defendant without any pretense of moral or legal justification.
committed a
homicide 10. The victim of the crime for which defendant is to be
sentenced was a law enforcement officer engaged in the
performance of the officer's official duties.
11. The victim of the crime for which the defendant is to
be sentenced was an elected or appointed public official
engaged in the performance of [his] [her] official
duties and the crime was related, in whole or in part,
to the victim's official capacity.
[Page A-27]
*1205
If you find the aggravating circumstances do not justify
the death penalty, your advisory sentence should be one of
life imprisonment without possibility of parole for 25 years.
Note to When the victim is a law enforcement officer, correctional
Judge officer, state attorney, assistant state attorney, justice,
or judge, "eligibility for release" should be inserted in
place of "possibility of parole for 25 years." See F.S.
775.0823.
F.S. Should you find sufficient aggravating circumstances do
921.141(6) exist, it will then be your duty to determine whether
mitigating circumstances exist that outweigh the aggravating
circumstances. Among the mitigating circumstances you may
consider, if established by the evidence, are:
Note to Give only those mitigating circumstances for which
Judge evidence has been presented.
1. (Defendant) has no significant history of prior criminal
activity;
Note to If the defendant offers evidence on this circumstance and
Judge the State, in rebuttal, offers evidence of other crimes,
also give the following:
Conviction of (previous crime) is not an aggravating
circumstance to be considered in determining the penalty to
be imposed on the defendant, but a conviction of that crime
may be considered by the jury in determining whether the
defendant has a significant history of prior criminal
activity.
2. The crime for which the defendant is to be sentenced
was committed while [he] [she] was under the influence
of extreme mental or emotional disturbance;
3. The victim was a participant in the defendant's conduct
or consented to the act;
4. The defendant was an accomplice in the offense for
which [he] [she] is to be sentenced but the offense
[Page A-28]
*1206
was committed by another person and the defendant's
participation was relatively minor;
5. The defendant acted under extreme duress or under the
substantial domination of another person;
6. The capacity of the defendant to appreciate the
criminality of [his] [her] conduct or to conform [his]
[her] conduct to the requirements of law was
substantially impaired;
7. The age of the defendant at the time of the crime;
8. Any other aspect of the defendant's character or
record, and any other circumstance of the offense.
Each aggravating circumstance must be established beyond a
reasonable doubt before it may be considered by you in
arriving at your decision.
If one or more aggravating circumstances are established,
you should consider all the evidence tending to establish
one or more mitigating circumstances and give that evidence
such weight as you feel it should receive in reaching your
conclusion as to the sentence that should be imposed.
A mitigating circumstance need not be proved beyond a
reasonable doubt by the defendant. If you are reasonably
convinced that a mitigating circumstance exists, you may
consider it as established.
The sentence that you recommend to the court must be
based upon the facts as you find them from the evidence and
the law. You should weigh the aggravating circumstances
against the mitigating circumstances, and your advisory
sentence must be based on these considerations.
In these proceedings it is not necessary that the advisory
sentence of the jury be unanimous.
[Page A-29]
*1207
The fact that the determination of whether you recommend
a sentence of death or sentence of life imprisonment in this
case can be reached by a single ballot should not influence
you to act hastily or without due regard to the gravity of
these proceedings. Before you ballot you should carefully
weigh, sift and consider the evidence, and all of it,
realizing that human life is at stake, and bring to bear your
best judgment in reaching your advisory sentence.
If a majority of the jury determine that (defendant) should
be sentenced to death, your advisory sentence will be:
A majority of the jury, by a vote of ______, advise and
recommend to the court that it impose the death penalty
upon (defendant).
On the other hand, if by six or more votes the jury
determines that (defendant) should not be sentenced to death,
your advisory sentence will be:
The jury advises and recommends to the court that it
impose a sentence of life imprisonment upon (defendant)
without possibility of parole for 25 years.
Note to When the victim is a law enforcement officer, correctional
Judge officer, state attorney, assistant state attorney, justice,
or judge, "eligibility for release" should be inserted in
place of "possibility of parole for 25 years." See F.S.
775.0823.
You will now retire to consider your recommendation. When
you have reached an advisory sentence in conformity with
these instructions, that form of recommendation should be
signed by your foremanperson and returned to the
court.
Explanation of amendment: This instruction begins on page 77 of the manual. The Note to Judge is added to bring F.S. 775.0823 to the court's attention in appropriate cases.
[Page A-30]
*1208
ASSAULT OFON LAW ENFORCEMENT OFFICER OR
FIREFIGHTER (Amended)
F.S. 784.07A(2)(a)
Before you can find the defendant guilty of Assault on a
[law enforcement officer] [firefighter], the State must
prove the following six elements beyond a reasonable doubt:
Elements 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].
5. (Defendant) knew (victim) was a [law enforcement
officer] [firefighter].
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].
Explanation of proposed changes: The instruction is on page 92 of the manual. The changes are editorial.
[Page A-31]
*1209
BATTERY OF LAW ENFORCEMENT OFFICER OR FIREFIGHTER
(Amended)
F.S. 784.07B(2)(b)
Before you can find the defendant guilty of Battery of a
[law enforcement officer] [firefighter], the State must prove
the following four elements beyond a reasonable doubt:
Elements 1. (Defendant) intentionally
[touched or struck (victim) against [his] [her] will.]
[caused bodily harm to (victim).]
2. (Victim) was a [law enforcement officer] [firefighter].
3. (Defendant) knew (victim) was a [law enforcement
officer] [firefighter].
4. (Victim) was engaged in the lawful performance of [his]
[her] duties when the battery was committed. against
him.
The court now instructs you that (name of official position
of victim designated in charge) is a [law enforcement
officer] [firefighter].
Explanation of proposed changes: The instruction is on page 93 of the manual. The changes are editorial.
[Page A-32]
*1210
AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER OR
FIREFIGHTER (New)
F.S. 784.07(2)(c)
Before you can find the defendant guilty of aggravated
assault of a [law enforcement officer] [firefighter], the
state must prove the following seven elements beyond a
reasonable doubt. The first three elements define assault.
Elements 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 4. a. [The assault was made with a deadly weapon.]
4b as
applicable b. [The assault was made with a fully-formed, conscious
intent to commit (crime charged) upon (victim).]
Note to If 4b is alleged, define the crime charged.
Judge
5. (Victim) was at the time a [law enforcement officer]
[firefighter].
6. (Defendant) knew (victim) was a [law enforcement
officer] [firefighter].
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].
[Page A-33]
*1211
Definition; A weapon is a "deadly weapon" if it is used or threatened
give if 4a to be used in a way likely to produce death or great bodily
alleged harm.
Give if 4a It is not necessary for the state to prove that the
alleged defendant had an intent to kill.
Explanation of proposed instruction: This instruction is new based on F.S. 784.07(2)(c), which was created in 1988. The wording is similar to the instruction for assault of law enforcement officer on page 92 of the manual.
[Page A-34]
*1212
AGGRAVATED BATTERY ON LAW ENFORCEMENT OFFICER OR
FIREFIGHTER (New)
F.S. 784.07(2)(d)
Before you can find the defendant guilty of aggravated
battery of a [law enforcement officer] [firefighter], the
state must prove the following five elements beyond a
reasonable doubt. The first element is a definition of
battery.
Elements 1. (Defendant)
[intentionally touched or struck (victim) against [his]
[her] will.]
[intentionally caused bodily harm to (victim).]
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].
4. (Defendant) knew (victim) was a [law enforcement
officer] [firefighter].
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].
[Page A-35]
*1213
Definition; A weapon is a "deadly weapon" if it is used or threatened
give if 2b to be used in a way likely to produce death or great bodily
alleged harm.
Explanation of proposed instruction: This instruction is new based on F.S. 784.07(2)(d), which was created in 1988. The wording is similar to the instruction for battery of a law enforcement officer on page 93 of the manual.
[Page A-36]
*1214
PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON
(Amended)
F.S. 790.07(1) and (2)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two elements
beyond a reasonable doubt:
Elements; 1. (Defendant)
give 1a or 1b
as applicable a. [[displayed] [used] [threatened to use] [attempted
to use]
[a weapon].]
[a firearm].]
[an electric weapon or device].]
b. [carried] a [weapon] [firearm], which was concealed
from the ordinary sight of another person.]
2. [He] [She] did so while committing or attempting to
commit the felony of (felony alleged).
Notes to 1. Define the felony alleged. If Burglary, also define
Judge crime that was object of the burglary.
2. Define "attempt" (see page 55) and.
3. Adapt the definition of the weapon or firearm alleged
from F.S. 790.001 as required by the allegations.
Explanation of amendments: This instruction appears on page 99 of the manual. The addition of "or firearm" clarifies the second Note to Judge.
[Page A-37]
*1215
THROWING, MAKING, PLACING, PROJECTING, OR
DISCHARGING DESTRUCTIVE DEVICE (New)
F.S. 790.161(1)
Before you can find the defendant guilty of (crime
charged), the State must prove the following element beyond
a reasonable doubt:
Element 1. (Defendant) willfully and unlawfully
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place]
[project] [discharge]]
a destructive device.
Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations).
Explanation of proposed instructions: This instruction is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.
[Page A-38]
*1216
THROWING, MAKING, PLACING, PROJECTING, OR
DISCHARGING DESTRUCTIVE DEVICE (New)
F.S. 790.161(2)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two elements
beyond a reasonable doubt:
Elements 1. (Defendant) willfully and unlawfully
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place]
[project] [discharge]]
a destructive device.
Give those 2. (a) The act was committed with the intent to
parts of
paragraph 2 [do bodily harm to another.]
as applicable [do property damage.]
(b) The act resulted in
[a disruption of governmental operations.]
[a disruption of commerce.]
[a disruption of the private affairs of
(victim).]
Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations).
Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.
[Page A-39]
*1217
THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
DESTRUCTIVE DEVICE (New)
F.S. 790.161(3)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two elements
beyond a reasonable doubt:
Elements 1. (Defendant) willfully and unlawfully
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place]
[project] [discharge]]
a destructive device.
2. The act resulted in
[bodily harm to another.]
[property damage.]
Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations).
Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.
[Page A-40]
*1218
THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
DESTRUCTIVE DEVICE (New)
F.S. 790.161(4)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two elements
beyond a reasonable doubt:
Elements 1. (Defendant) willfully and unlawfully
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place]
[project] [discharged]]
a destructive device.
2. The act resulted in the death of another.
Definition A "destructive device" is defined as (adapt from F.S.
790.001(4) as required by the allegations).
Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.
[Page A-41]
*1219
DEALER SELLING ARMS TO MINORS (Amended)
F.S. 790.18
Before you can find the defendant guilty of (crime
charged), the State must prove the following three elements
beyond a reasonable doubt:
Elements 1. (Defendant) was engaged in the business of dealing in
arms as a source of revenue.
2. In the course of that business (defendant) sold to
(minor alleged) the (weapon alleged).
3. (Minor alleged) was at the time under the age of
eighteen years.
Definitions A "dealer in arms" is a person who buys and sells weapons
or firearms.
A "(weapon or firearm alleged)" is legally defined as
(adapt from F.S. 790.001 as required by the allegations).
Explanation of amendments: This instruction is on page 108 of the manual. The addition of "or firearm" clarifies the last sentence of this instruction.
[Page A-42]
*1220
FELONS POSSESSING WEAPONS (Amended)
F.S. 790.23
Before you can find the defendant guilty of (crime
charged), the State must prove the following two elements
beyond a reasonable doubt:
Elements 1. (Defendant) had been convicted of (prior offense).
2. After the conviction (defendant) knowingly
Give 2a or a. [owned] [had in [his] [her] care, custody,
2b as possession or control]
applicable
[a firearm.]
[an electric weapon or device.]
b. [carried a (weapon alleged), which was concealed
from the ordinary sight of another person.]
Defense If you find that the defendant's civil rights had been
restored at the time of the offense, you shall find the
defendant not guilty.
Definitions "Convicted" means that a judgment has been entered in a
criminal proceeding by a competent court pronouncing the
accused guilty.
A ["firearm"] ["electric weapon or device"] ["concealed
weapon"] is legally defined as (adapt from F.S. 790.001 as
required by the allegations).
Give if 2a "Care" and "custody" mean immediate charge and control
alleged exercised by a person over the named object. The terms
care, custody and control may be used interchangeably.
To "possess" means to have personal charge of or exercise
the right of ownership, management or control over the thing
possessed.
[Page A-43]
*1221
Possession may be actual or constructive. If a thing is in
the hand of or on the person, or in a bag or container in the
hand of or on the person, or is so close as to be within
ready reach and is under the control of the person, it is
in the actual possession of that person.
If a thing is in a place over which the person has control
or in which the person has hidden or concealed it, it is in
the constructive possession of that person.
Possession may be joint, that is, two or more persons may
jointly have possession of an article, exercising control
over it. In that case, each of those persons is considered
to be in possession of that article.
If a person has exclusive possession of a thing, knowledge
of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing,
knowledge of its presence may not be inferred or assumed.
Explanation of amendment: This instruction begins on page 111b of the manual. This change (addition of "knowingly" in paragraph (2)) is based on White v. State, 539 So.2d 577 (Fla.5th DCA 1989).
[Page A-44]
*1222
SEXUAL BATTERY VICTIM TWELVE YEARS OF AGE OR OLDER
CIRCUMSTANCES SPECIFIED (Amended)
F.S. 794.011(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 the (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 someone
else administering to (victim) a narcotic, anesthetic
or other intoxicating substance that mentally or
[Page A-45]
*1223
physically incapacitated (victim).]
e. [(Victim) was mentally defective and (defendant)
had reason to believe this or had actual knowledge
of that fact.]
f. [(Victim) was physically incapacitated.]
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 3a "Physically helpless" means that a person is unconscious,
alleged asleep, or for any other reason physically unable to
communicate unwillingness to act.
Give if 3b "Serious personal injury" means great bodily harm or pain,
alleged permanent disability, or permanent disfigurement.
[Page A-46]
*1224 Give if 3f "Physically incapacitated" means that a person is bodily alleged impaired or handicapped and substantially limited in his or her ability to resist or flee an act. Give if However, any act done for bona fide medical purposes is applicable not a sexual battery. Note to In the event of multiple perpetrators, give instruction on Judge enhancement, F.S. 794.023. Note to The option of the word "[with] (victim)" in 2a is provided Judge to reflect the manner in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.
Explanation of amendments: The instruction begins on page 119 of the manual. The addition of "physically incapacitated" is based on 1989 amendments to F.S. 794.011.
[Page A-47]
*1225
LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN
THE PRESENCE OF CHILD; SEXUAL BATTERY (Revised)
F.S. 800.04
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. a. (Defendant)
applicable
Subsection [made an assault upon (victim) in a lewd, lascivious
(1) or indecent manner.]
[handled or fondled (victim) in a lewd, lascivious
or indecent manner.]
Subsection b. (Defendant) committed upon (victim) or forced or
(2) enticed (victim) to commit
[actual or simulated sexual intercourse.]
[deviate sexual intercourse.]
[sexual bestiality.]
[masturbation.]
[sadomasochistic abuse.]
[actual lewd exhibition of the genitals.]
[any act or conduct which simulated that sexual
battery was being or would be committed on (victim).]
Subsection c. (Defendant)
(3)
[Page A-48]
*1226 [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 [(victim)] [(defendant)].] [committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.] Subsection d. (Defendant) knowingly committed a lewd or lascivious (4) 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. "lascivious" and "indecent" mean the same thing. They mean a 800.04(1) wicked, lustful, unchaste, licentious, or sensual intent on charged the part of the person doing an act. Give when An "assault" is an intentional, unlawful threat by word or assault is act to do violence to the person of another, coupled with an charged apparent ability to do so, and doing some act which creates under F.S. a well-founded fear in such other person that such violence 800.04(1) is imminent. Give when As used in regard to this offense the words "lewd" and F.S. "lascivious" mean the same thing and mean a wicked, lustful, 800.04(4) is unchaste, licentious, or sensual intent on the part of the charged person doing an act. Note to Give applicable definitions from F.S. 847.001 when F.S. Judge 800.04(2) is charged. Note to There is no need to make reference to the words "without Judge committing the crime of sexual battery" because this refers to forcible sexual relations. Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983); Chapter 84-86, Laws of Florida.
[Page A-49]
*1227 Explanation of proposed revision: The instruction begins on page 122 of the manual. The revision is based on F.S. 800.04 as amended in 1990.
[Page A-50]
*1228
ARSON FIRST DEGREE (Amended)
F.S. 806.01(1)
Before you can find the defendant guilty of Arson, the
State must prove the following [three] [four] elements
beyond a reasonable doubt:
Elements 1. (Defendant) [damaged] [caused to be damaged] (structure
or contents alleged) by [fire] [explosion].
Give 2a or 2. a. The damage was done willfully and unlawfully.
2b
b. The damage was caused while defendant was engaged in
the commission of (felony alleged).
3. The (structure alleged) was
Give 3a if a. [a dwelling.]
charged
under F.S.
806.01(1)(a)
Give 3b if b. [an institution in which the damage occurred during
charged normal hours of occupancy.]
under F.S.
806.01(1)(b)
[an institution where persons are normally present.]
Give 3c if c. [a structure.]
charged
under F.S.
806.01(1)(c)
Give only if 4. The defendant knew or had reasonable grounds to believe
charged the (structure alleged) was occupied by a human being.
under F.S.
806.01(1)(c)
[Page A-51]
*1229
Definition; "Structure" means:
give if
applicable 1. Any building of any kind.
F.S. 2. Any enclosed area with a roof over it.
806.01(3) 3. Any real property and its appurtenances.
4. Any tent or other portable building.
5. Any vehicle.
6. Any vessel.
7. Any watercraft.
8. Any aircraft.
Give only if Define the crime alleged. If burglary, also define crime
2b is alleged that was the object of burglary.
Explanation of amendments: The instruction begins on page 127 of the manual. The new language is added based on 1990 amendments to F.S. 806.01(1).
[Page A-52]
*1230
ARSON SECOND DEGREE (Amended)
F.S. 806.01(2)
Before you can find the defendant guilty of Arson
Second Degree, the State must prove the following three
elements beyond a reasonable doubt:
Elements 1. (Defendant) [caused to be damaged] [damaged] a
(structure alleged), owned by the defendant or
another, by [explosion] [fire].
Give 2a or 2. a. The damage was done willfully and unlawfully.
2b
b. The damage was caused while defendant was engaged
in the commission of (felony alleged).
3. The (structure alleged) is a structure.
Definition "Structure" means:
F.S.
806.01(3) 1. Any building of any kind.
2. Any enclosed area with a roof over it.
3. Any real property and its appurtenances.
4. Any tent or other portable building.
5. Any vehicle.
6. Any vessel.
7. Any watercraft.
8. Any aircraft.
Give only if Define the crime alleged. If burglary, also define crime
2b is alleged that was the object of burglary.
Explanation of amendments: The instruction begins on page 128 of the manual. The new language is added based on 1990 amendments to F.S. 806.01(2).
[Page A-53]
*1231
CRIMINAL MISCHIEF (Amended)
F.S. 806.13
Before you can find the defendant guilty of criminal
mischief, the state must prove the following three
elements beyond a reasonable doubt:
Elements 1. (Defendant) injured or damaged (copy from charge).
2. The property injured or damaged belonged to (person
alleged).
3. The injury or damage was done willfully and
maliciously.
Give if Among the means by which property can be injured or
applicable damaged under the law is the placement of graffiti on it
or other acts of vandalism to it.
Definitions "Willfully" means intentionally, knowingly and
purposely.
"Maliciously" means wrongfully, intentionally, without
legal justification or excuse, and with the knowledge that
injury or damage will or may be caused to another person
or the property of another person.
Degrees; The punishment provided by law for the crime of criminal
give up to mischief is greater depending upon the value of the
the extent of property damaged. Therefore, if you find the defendant
the chargeas guilty of criminal mischief, you must
applicable determine by your verdict whether:
a. [The damage to the property was $1,000 or greater.]
[By reason of the damage there was an interruption or
impairment of a business operation or public
communication, transportation, supply of water, gas
or power, or other public service which cost $1,000 or
more in labor and supplies to restore.]
[Page A-54]
*1232
b. [The damage to the property was greater than $200 but
less than $1,000.]
c. [The damage to the property was $200 or less.]
Explanation of amendment: The instruction appears on page 130 of the manual. The underlined sentence is based on a 1988 amendment to F.S. 806.13(1)(a).
[Page A-55]
*1233
THEFT (Amended)
F.S. 812.014
Before you can find the defendant guilty of Theft, the
State must prove the following two elements beyond a
reasonable doubt:
Elements 1. (Defendant) knowingly and unlawfully [obtained]
[used] [endeavored to obtain] [endeavored to use]
the (property alleged) of (victim).
2. [He] [She] did so with intent to, either temporarily
or permanently,
[deprive (victim) of [his] [her] right to the
property or any benefit from it.]
[appropriate the property of (victim) to [his]
[her] own use or to the use of any person not
entitled to it.]
Degrees; If you find the defendant guilty of theft, you must
give if determine by your verdict
whether:
property is of
monetary a. [The value of the property taken was $100,000 or
value up to more.]
extent of b. [The value of the property taken was $20,000 or more
charge but less than $100,000.]
c. [The value of the property taken was $300 or more but
less than $20,000.]
d. [The value of the property taken was less than $300.]
Give if e. [The property was [a will, codicil, or other
applicable testamentary instrument.] [a firearm.] [a motor
vehicle.] [a horse.] [a cow.] [a pig.] [a kind of
livestock.] [a commercially farmed animal.] [an
aquaculture species raised at a permitted
[Page A-56]
*1234
aquaculture facility.] [a fire extinguisher.] [2000 or
more pieces of fruit.] [taken from a posted
construction site.]]
Inferences; Proof that a person presented false identification not
give if current in respect to name, address, place of employment
applicable or other material aspect in connection with the leasing of
F.S. personal property, or failed to return leased property
812.022(1) within 72 hours of the termination of the leasing
agreement, unless satisfactorily explained, gives rise to
an inference that the property was obtained or is now used
with unlawful intent to commit theft.
Inferences; Proof of possession of recently stolen property, unless
give if satisfactorily explained, give rise to an inference that
applicable the person in possession of the property knew or should
F.S. have known that the property had been stolen.
812.022(2)
Definitions; "Obtains or uses" means any manner of:
give if
applicable (a) Taking or exercising control over property.
F.S.
812.012(2) (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, deception; or
2. Other conduct similar in nature.
"Endeavor" means to attempt or try.
[Page A-57]
*1235 F.S. "Property" means anything of value, and includes: 812.012(3) 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. F.S. "Services" means anything of value resulting from a 812.012(5) person's physical or mental labor or skill, or from the use, possession or presence of property, and includes: repairs or improvements to property; professional services; private, public or government communication, transportation, power, water or sanitation services; lodging accommodations; and admissions to places of exhibition or entertainment. Note to It is error to inform the jury of a prior conviction. Judge Therefore, do not read the allegation of prior conviction or send the information or indictment into the jury room. The historical fact of a previous conviction shall be determined by the judge, and shall thereby fix the degree of the crime. State of Florida v. Harris, 356 So.2d 315 (Fla. 1978). F.S. "Value" means: 812.012(9) The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. In the case of a written instrument that does not have a readily ascertainable market value, such as a
[Page A-58]
*1236
check, draft or promissory note, the value is the amount
due or collectible.
In the case of any other instrument that creates,
releases, discharges or otherwise affects any valuable
legal right, privilege or obligation, the value is the
greatest amount of economic loss that the owner of the
instrument might reasonably suffer by virtue of the
loss of the instrument.
The value of a trade secret that does not have a readily
ascertainable market value is any reasonable value
representing the damage to the owner suffered by reason of
losing an advantage over those who do not know of or use
the trade secret.
If the exact value of the property cannot be
ascertained, you should attempt to determine a minimum
value. If you cannot determine the minimum value, you must
find the value is less than $300.
Amounts of value of separate properties, involved in
thefts committed pursuant to one scheme or course of
conduct, whether the thefts are from the same person or
several persons, may be totaled in determining the grade
of the offense.
Explanation of amendments: The instruction begins on page 147 of the manual. The changes are based on 1990 amendments to F.S. 812.014(2)(c)5.
[Page A-59]
*1237
CONTRIBUTING TO CHILD DELINQUENCY OR DEPENDENCY OR
TO CHILD IN NEED OF SERVICES (Amended)
F.S. 827.04(3)
Before you can find the defendant guilty of contributing
to a child's becoming a [delinquent child] [dependent
child] [child in need of services] Delinquency or
Dependency, the State must prove the following element
beyond a reasonable doubt:
Element [(Defendant) knowingly (read act alleged from charge),
which
[caused]
[tended to cause or encourage]
[contributed to]
(victim) [to become] [becoming] a [delinquent]
[dependent] child [in need of services].]
[(Defendant), by
[act]
[threat]
[command]
[persuasion]
[induced] [endeavored to induce] (victim) to
[perform any act]
[follow any course of conduct]
[live]
so as to cause or tend to cause (victim) to
[become a dependent child]
[remain a dependent child]
[become a delinquent child]
[remain a delinquent child]
[become a child in need of services]
[remain a child in need of services].]
[Page A-60]
*1238
Definitions; "Child" means any person under the age of eighteen
F.S. years.
827.01(1)
Note to Prepare the definition of "delinquency," or of
Judge "dependency," or "child in need of services" based on the
statutory definitions in effect at the time of the alleged
offense. See F.S. 39.01.
Explanation of amendments: The instruction begins on page 163 of the manual. The changes are based on 1990 amendments to F.S. 827.04.
[Page A-61]
*1239
WORTHLESS CHECK OBTAINING PROPERTY (Amended)
F.S. 832.05(4)
Note to This statute applies to a variety of orders to pay money
Judge and "commercial paper," and a variety of types of drawees
and transactions. The charge has been framed to cover the
most common transaction encountered in criminal
litigation. It can be readily modified to fit other
transactions covered by the statute.
Before you can find the defendant guilty of (crime
charged), the State must prove the following seven
elements beyond a reasonable doubt:
Elements 1. (Defendant)
[drew]
[made]
[uttered]
[issued]
[delivered]
the check admitted in evidence as State Exhibit ____.
2. (Defendant) did so to obtain
[services.]
[goods.]
[wares.]
[(other thing of value alleged).]
3. The [services] [goods] [wares] [(other thing of value
alleged)] had some monetary value.
4. When (defendant) did so, there was not sufficient
money on deposit in the bank to pay the check.
5. (Defendant) knew when he wrote the check that he did
not have was written there was not sufficient money
on deposit with the bank.
[Page A-62]
*1240
6. (Defendant) knew he had there was no arrangement or
understanding with the bank for the payment of the check
when it was presented.
7. The check was in the amount of $150.00 or more.
Defenses; Even if you find all these elements are proved, you
give if should go on to consider the defense. You must find the
applicable defendant not guilty if you find either of the following
two defenses to have been proved:
1. (Name of payee) knew that (defendant's) funds and
credit at the bank at the time the check was given
were insufficient to pay the check; or
2. (Name of payee) had good reason to believe that
(defendant's) funds and credit at the bank at the
time the check was given were insufficient to pay the
check.
Give if When an employee of a business receives a check, the
applicable business must be regarded as knowing whatever the employee
knows about the check.
Give if The fact that (defendant) had previously issued a
applicable worthless check to the payee did not, by itself, give
(payee) reason to believe that (defendant)
had insufficient funds to ensure payment of this check.
Explanation of amendment: This instruction is on pages 171-172 of manual. The underlined sentence is based on a 1988 amendment to F.S. 832.05(4)(a). Wording originally drawn by the committee was criticized in a letter from Mark F. Lewis. The committee agreed with Mr. Lewis and redrafted the paragraph based on his recommendation.
[Page A-63]
*1241
PERJURY (Amended) (NOT IN AN OFFICIAL PROCEEDING
F.S. 837.012) (IN AN OFFICIAL PROCEEDING F.S.
837.02)
Before you can find the defendant guilty of [Perjury Not
in an Official Proceeding] [Perjury in an Official
Proceeding], the State must prove the following five
elements beyond a reasonable doubt:
Elements 1. (Defendant) took an oath or otherwise affirmed that
[he] [she] was obligated by conscience or by law to
speak the truth in (describe proceedings,
official or unofficial, in which the alleged oath was
taken).
2. The oath or affirmation was made to (person allegedly
administering oath), who was a (official capacity).
3. (Defendant), while under an oath, made the statement
(read from charge).
4. The statement was false.
5. (Defendant) did not believe the statement was true
when [he] [she] made it.
Give if Knowledge of the materiality of the statement is not an
applicable element of this crime, and the defendant's mistaken belief
F.S. that [his] [her] statement was not material is not a
837.012(2) & defense to the charge.
837.02(2)
Note to Questions of the authority to administer oaths, whether
Judge F.S. the form of the oath or attestation is required or
837.011 authorized by law, the official or unofficial nature of
the proceedings and the materiality of a statement are
matters of law.
Give if The law requires the judge to decide if the alleged
applicable statement is material, and I have decided that it is
F.S. material. Therefore, you will not further concern yourself
837.011(3) with this issue.
[Page A-64]
*1242 Note to An instruction on recantation should be given when Judge raised as a defense. See F.S. 837.07; Carter v. State, 384 So.2d 1255 (Fla. 1980).
Explanation of amendment: The instruction begins on page 175 of the manual. "F.S. 837.07" is added to the note.
[Page A-65]
*1243
MAINTAINING A GAMBLING ESTABLISHMENT (Amended)
F.S. 849.01-A (849.02)
Note to F.S. 849.01 covers both the maintaining of a gambling
Judge establishment and the permitting of gambling. Accordingly,
separate instructions have been prepared for these
offenses with the designations "A" and "B." F.S. 849.02
proscribes the same conduct when one is acting as a
servant, clerk, agent or employee. Therefore, the
instructions for F.S. 849.01 may be given for charges
under 849.02 by using appropriate language as indicated.
Before you can find the defendant guilty of Maintaining a
Gambling Establishment, the State must prove the following
two elements beyond a reasonable doubt:
Elements 1. (Defendant),
a. [in person or by a servant, clerk or agent,]
Give 1b if b. [acting as servant, clerk, agent or employee of
applicable another,]
under F.S. had a substantial degree of control over and kept or
849.02 maintained (place or articles alleged).
2. The [place was] [articles were] habitually kept or
maintained for the purpose of gambling.
A single instance or rare and isolated instances of
placing bets or gambling would be insufficient to
constitute the crime. But if the property was used at
frequent intervals as a place or means for betting,
gaming or gambling, the crime has been committed even if
the principal use of the property is for some other lawful
purpose.
It is not necessary to prove that the defendant gambled,
or received any profit from the gambling, or that [he]
[she] wholly owned or controlled the property.
[Page A-66]
*1244
It is not necessary to a conviction of this offense that
there be direct and positive evidence of gambling. It is
sufficient if implements, devices or apparatus commonly
used by gambling houses or by gamblers are found under
circumstances that convince you that the premises were
kept or maintained for the purpose of gambling.
Give if A servant, clerk, agent or employee of another who keeps
applicable or maintains property for the purpose of gambling is
under F.S. equally guilty with [his] [her] employer.
849.02
Definition "Gambling" is a game of chance in which the participant
risks money or property on the outcome with the
expectation of gaining or losing as a result of the game.
Note to If there is evidence of the exception referred to in
Judge F.S. 849.093 and .085, an appropriate instruction should
be given.
Explanation of amendments: This instruction is on page 199 of the manual. The addition of "and .085" is to ensure that F.S. 849.085 is not overlooked.
[Page A-67]
*1245
DRUG ABUSE USE OR POSSESSION OF DRUG PARAPHERNALIA
(Amended)
F.S. 893.147(1)
Before you can find the defendant guilty of Use or
Possession of Drug Paraphernalia, the State must prove the
following two elements beyond a reasonable doubt:
Elements 1. (Defendant) used or had in [his] [her] possession
with intent to use drug paraphernalia.
2. (Defendant) had knowledge of the presence of the drug
paraphernalia.
Definitions
Possession To "possess" means to have personal charge of or exercise
the right of ownership, management or control over the
thing possessed.
Possession may be actual or constructive. If a thing is
in the hand of or on the person, or in a bag or container
in the hand of or on the person, or is so close as to be
within ready reach and is under the control of the person,
it is in the actual possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or concealed it,
it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons
may jointly have possession of an article, exercising
control over it. In that case, each of those persons is
considered to be in possession of that article.
If a person has exclusive possession of a thing,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a
thing, knowledge of its presence may not be inferred or
assumed.
[Page A-68]
*1246
Drug The term "drug paraphernalia" means all equipment,
Paraphernalia products, and materials of any kind which are used,
F.S. 893.145 intended for use, or designed for use in planting,
propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into
the human body a controlled substance in violation of
this chapter. It includes, but is not limited to:
Give specific (1) Kits used, intended for use, or designed for use in
definition as planting, propagating, cultivating, growing, or harvesting
applicable of any species of plant which is a controlled substance or
from which a controlled substance can be derived.
(2) Kits used, intended for use, or designed for use in
manufacturing, compounding, converting, producing, processing,
or preparing controlled substances.
(3) Isomerization devices used, intended for use, or
designed for use in increasing the potency of any species
of plant which is a controlled substance.
(4) Testing equipment used, intended for use, or
designed for use in identifying, or in analyzing the
strength, effectiveness, or purity of, controlled
substances.
(5) Scales and balances used, intended for use, or
designed for use in weighing or measuring controlled
substances.
(6) Diluents and adulterants, such as quinine
hydrochloride, mannitol, mannite, dextrose, and lactose
used, intended for use, or designed for use in cutting
controlled substances.
(7) Separation gins and sifters used, intended for use,
or designed for use in removing twigs and seeds from, or
in otherwise cleaning or refining, cannabis.
[Page A-69]
*1247
(8) Blenders, bowls, containers, spoons, and mixing
devices used, intended for use, or designed for use in
compounding controlled substances.
(9) Capsules, balloons, envelopes, and other containers
used, intended for use, or designed for use in packaging
small quantities of controlled substances.
(10) Containers and other objects used, intended for
use, or designed for use in storing or concealing
controlled substances.
(11) Hypodermic syringes, needles, and other objects
used, intended for use, or designed for use in
parenterally injecting controlled substances into the
human body.
(12) Objects used, intended for use, or designed for
use in ingesting, inhaling, or otherwise introducing
cannabis, cocaine, hashish, or hashish oil into the
human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or
ceramic pipes with or without screens, permanent screens,
hashish heads, or punctured metal bowls.
(b) Water pipes.
(c) Carburetion tubes and devices.
(d) Smoking and carburetion masks.
(e) Roach clips: meaning objects used to hold burning
material, such as a cannabis cigarette, that has become
too small or too short to be held in the hand.
(f) Miniature cocaine spoons, and cocaine vials.
(g) Chamber pipes.
(h) Carburetor pipes.
(i) Electric pipes.
[Page A-70]
*1248
(j) Air-driven pipes.
(k) Chillums.
(l) Bongs.
(m) Ice pipes or chillers.
Relevant In addition to all other logically relevant factors, the
factors F.S. following factors shall be considered in determining whether
893.146 an object is drug paraphernalia:
(1) Statements by an owner or by anyone in control of
the object concerning its use.
(2) The proximity of the object, in time and space, to a
direct violation of this act.
(3) The proximity of the object to controlled
substances.
(4) The existence of any residue of controlled
substances on the object.
(5) Direct or circumstantial evidence of the intent of
an owner, or of anyone in control of the object, to
deliver it to persons whom [he] [she] knows, or should
reasonably know, intend to use the object to
facilitate a violation of this act. The innocence of an owner,
or of anyone in control of the object, as to a direct
violation of this act shall not prevent a finding that the
object is intended for use, or designed for use, as drug
paraphernalia.
(6) Instructions, oral or written, provided with the
object concerning its use.
(7) Descriptive materials accompanying the object which
explain or depict its use.
(8) Any advertising concerning its use.
[Page A-71]
*1249
(9) The manner in which the object is displayed for
sale.
(10) Whether the owner, or anyone in control of the
object, is a legitimate supplier of like or related items
to the community, such as a licensed distributor or dealer
of tobacco products.
(11) Direct or circumstantial evidence of the ratio of
sales of the object or objects to the total sales of the
business enterprise.
(12) The existence and scope of legitimate uses for the
object in the community.
(13) Expert testimony concerning its use.
Explanation of amendments: This instruction begins on page 245 of the manual. The title and paragraph (1) is revised to conform to the wording of F.S. 893.147(1).
[Page A-72]
*1250 SCHEDULE OF LESSER INCLUDED OFFENSES
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
First degree Second degree (depraved Second degree (felony)
(premeditated) murder mind) murder 782.04(2) murder 782.04(3)
782.04(1) Manslaughter 782.07 Third degree (felony)
murder 782.04(4)
Attempt
Vehicular homicide
782.071
Culpable negligence
784.05(2)
Aggravated battery
784.045
Aggravated assault
784.021
Battery 784.03
Assault 784.011
[*]
First degree (felony) Second degree (depraved Attempt
murder 782.04(1) mind)[*a] murder
782.04(2) Second degree
Manslaughter 782.07 (depraved mind)
murder 782.04(2)
Second degree (felony)
murder 782.04(3)
[Page A-73]
*1251
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Third degree (felony)
murder 782.04(4)
Manslaughter 782.07
Aggravated battery
784.045
Aggravated assault
784.021
Battery 784.03
Assault 784.011
[*b]
Second degree (depraved Manslaughter 782.07 Third degree (felony)
mind) murder 782.04(4)
murder 782.04(2) Attempt
Vehicular homicide
782.071
Culpable negligence
784.05(2)
Aggravated battery
784.045
Aggravated assault
784.021
Battery 784.03
Assault 784.011
[*b]
Second degree (felony) None Third degree (felony)
murder murder 782.04(4)
782.04(3) Attempt
[Page A-74]
*1252
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Third degree (felony) None Attempt
murder 782.04(4) Aggravated assault
784.021
Battery 784.03
Assault 784.011
Manslaughter 782.07 None Attempt[*c]
Aggravated assault
784.021
Battery 784.03
Assault 784.011
Vehicular homicide
782.071
Culpable negligence
784.05(1)[*d]
Culpable negligence
784.05(2)[*d]
Assault 784.011 None Attempt
Aggravated assault Assault 784.011 Attempt
784.021(1)(a) Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms
in public 790.15
Aggravated assault Assault 784.011 Attempt
784.021(1)(b)
[Page A-75]
*1253
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Battery 784.03 None Attempt
Aggravated battery Battery 784.03 Attempt
784.045(1)(a)
Aggravated battery Battery 784.03 Attempt
784.045(1)(b) Improper exhibition of
dangerous weapons or
firearms 790.10
Discharging firearms
in public 790.15
Culpable negligence Culpable negligence None
784.05(2) 784.05(1)
Assault of law None Attempt
enforcement officer Assault 784.011[*e]
784.07(2)
Battery of law None Attempt
enforcement officer Battery 784.03[*e]
784.07(2)
Kidnapping 787.01 False imprisonment 787.02 Attempt
Aggravated assault
784.021(1)(b)
Battery 784.03(1)(a)
Assault 784.011
[Page A-76]
*1254
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
False imprisonment None Attempt
787.02 Assault 784.011
Battery 784.03(1)(a)
Carrying concealed None Attempt
weapons 790.01(1)
Carrying concealed None Attempt
firearms 790.01(2)
Carrying pistol or None Attempt
repeating rifle
without first
obtaining license
790.06
Persons engaged in None Attempt (may be
criminal offense, applicable when
having weapons concealed weapon
790.07(1) is charged)
Carrying concealed
weapons 790.01(1)
Improper exhibition
of dangerous weapons
790.10
Persons engaged in None Attempt (may be
criminal offense, applicable when
having weapons concealed firearm
790.07(2) is charged)
Carrying concealed
firearm 790.01(2)
Improper exhibition of
dangerous firearms
790.10
[Page A-77]
*1255
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Discharging firearms None Attempt
in public 790.15
Furnishing weapons to None Attempt
minors under 18
years of age, etc.
790.17
Selling arms to minors None Attempt
by dealers 790.18
Felons; possession of None Attempt (may be
firearms unlawful; applicable when
exception; penalty concealed weapon is
790.23 charged)
Carrying concealed
firearm 790.01(2)
Carrying concealed
weapon 790.01(1)
Sexual battery Battery 784.03 Attempt
794.011(2) Assault 784.011
Aggravated assault
784.021(1)(a)
Aggravated battery
784.045(1)(a)
Sexual battery Battery 784.03 Attempt
794.011(3) Aggravated battery
784.045(1)(a)
Aggravated assault
784.021(1)(a)
Assault 784.011
Sexual battery
794.011(4)
Sexual battery
794.011(5)
[Page A-78]
*1256
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Sexual battery Battery 784.03 Attempt
794.011(4) Aggravated assault
784.021(1)(a)
Assault 784.011
Sexual battery
794.011(5)
Sexual battery 794.011(5) Battery 784.03 Attempt
Assault 784.011
Unnatural and lascivious act None Attempt
800.02
Exposure of sexual organs None Unnatural and
800.03 lascivious act
800.02
Lewd, lascivious, or indecent None Attempt
assault or act upon or in Assault 784.011
presence of child 800.04 Battery 784.03
Unnatural and
lascivious act
800.02
Arson 806.01(1) None Arson 806.01(2) Arson 806.01(2)[*f]
Criminal mischief Attempt
806.13(1)(b)1 Criminal mischief
806.13(1)(b)2
Criminal mischief
806.13(1)(b)3
Criminal mischief
806.13(2)
Criminal mischief None Attempt
806.13(1)(b)1
[Page A-79]
*1257
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Criminal mischief Criminal mischief Attempt
806.13(1)(b)2 806.13(1)(b)1
Criminal mischief Criminal mischief Attempt
806.13(1)(b)3 806.13(1)(b)1
Criminal mischief
806.13(1)(b)2
Burglary with assault or Burglary 810.02(3) Attempt
battery or while armed Burglary of dwelling
810.02(2) or with human
being inside
810.02(3)
Trespass
810.08(2)(a)
Trespass
810.08(2)(c)
Burglary of dwelling or with Burglary 810.02(3) Attempt
human being inside Trespass
810.02(3) 810.08(2)(a)
Trespass
810.08(2)(b)
Burglary 810.02(3) None Attempt
Trespass
810.08(2)(a)
Possession of burglary tools None None
810.06
Trespass in structure or None Attempt (except
conveyance 810.08 refuse to depart)
Trespass on property other than None Attempt
structure or conveyance
810.09
[Page A-80]
*1258 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Grand theft first degree None Grand theft second 812.014(2)(a) degree 812.014(2)(b) Grand theft third degree 812.014(2)(c) Petit theft 812.014(2)(c) Cf. Gilford v. State, 313 So.2d 729 (Fla. 1975) Trade secrets 812.081 Grand theft second degree None If value is alleged 812.014(2)(b) Grand theft third degree 812.014(2)(c) Petit theft 812.014(2)(d) Trade secrets 812.081 Grand theft third degree None If value is alleged 812.014(2)(c) Petit theft 812.014(2)(d) Trade secrets 812.081 Petit theft 812.014(2)(d) None No attempt endeavor is included within definition of theft Possession of altered property None Attempt 812.016 Dealing in stolen property None None trafficking 812.019(1)
[Page A-81]
*1259 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Dealing in stolen property 812.019(1) Attempt managing and trafficking 812.019(2) Robbery with a firearm or deadly Robbery with a Attempt weapon 812.13(2)(a) weapon Grand theft 1st 812.13(2)(b) degree 812.013(2)(a) Robbery Grand theft 2d degree 812.13(2)(c) 812.014(2)(b) Petit theft Grand theft 3d degree 812.014(2)(d) 812.014(2)(c) Battery 784.03 Aggravated battery 784.045 Assault 784.011 Aggravated assault 784.021 Extortion 836.05 See Davis v. State, 277 So.2d 300 (Fla. 2d DCA 1973) Robbery with a weapon Robbery Attempt 812.13(2)(b) 812.13(2)(c) Petit theft Grand theft 1st degree 812.014(2)(d) 812.014(2)(a) Grand theft 2d degree 812.014(2)(b) Grand theft 3d degree 812.014(2)(c) Battery 784.03 Aggravated battery 784.045 Assault 784.011[*g]
[Page A-82]
*1260 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Aggravated assault 784.021 Extortion 836.05 See Davis v. State, 277 So.2d 300 (Fla. 2d DCA 1973) Robbery 812.13(2)(c) Petit theft Attempt 812.014(2)(d) Grand theft 1st degree 812.014(2)(a) Grand theft 2d degree 812.014(2)(b) Grand theft 3d degree 812.014(2)(c) Battery 784.03 Assault 784.011 Aggravated assault 784.021 Extortion 836.05 See Davis v. State, 277 So.2d 300 (Fla. 2d DCA 1973) Child abuse 827.04(1) Child abuse Attempt, if willfully 827.04(2) Negligent treatment of child 827.05 Child abuse 827.04(2) None Attempt, if willfully Negligent treatment of child 827.05 Forgery 831.01 None Attempt Uttering forged instrument None No attempt King v. 831.02 State, 317 So.2d 852 (Fla. 1st DCA 1975
[Page A-83]
*1261
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Stopping payment; purchase of None Attempt, except when
farm or grove products uttering is
832.04 charged 832.04
under $50
Stopping payment with intent None Attempt, except when
to defraud 832.041 uttering is
charged; 832.04 if
farm or grove
product; 832.041
under $50
Worthless check
832.05(2) (second
degree misdemeanor)
Worthless checks 832.05(2) None Attempt, except when
uttering is charged
Obtaining property by Worthless check Attempt, except when
worthless 832.05(2) uttering is charged
checks 832.05(4) (second degree
misdemeanor)
Perjury not in official None None
proceeding 837.012
Perjury if official proceeding None None
837.02
Perjury by contradictory None None
statements 837.021
False reports to law None None
enforcement authorities
837.05
False official statements None None
837.06
[Page A-84]
*1262
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Bribery 838.015 None Attempt if only give
or accept is
charged
Unlawful compensation for None Attempt if only give
official behavior 838.016 or accept is
charged
Corruption by threat against None Attempt if only harm
public servant 838.021 is charged
Bribery in athletic contests None Attempt only if give
838.12(1) is charged
Bribery in athletic contests None Attempt only if
838.12(2) accept is charged
Keeping gambling house 849.01 None Lottery
849.09(1)(f)
Lottery
849.09(1)(k)
Lottery 849.11
Agents, servants, etc., of None Lottery
keeper of gambling house 849.09(1)(f)
849.02
Renting house for gambling None Lottery
purposes 849.02 849.09(1)(k)
None
Permitting minors and persons None Permitting gambling
under guardianship to gamble and billiard or
849.04 pool table by holder
of license 849.07
Playing at games of
chance by lot
849.11
[Page A-85]
*1263
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Gambling 849.08 None None
Lottery 849.09(1)(a) None Attempt
Lottery
849.09(1)(f)
Lottery
849.09(1)(g)
Lottery
849.09(1)(h)
Lottery
849.09(1)(i)
Lottery
849.09(1)(j)
Lottery
849.09(1)(k)
Playing at game of
chance by lot
849.11
Gambling devices,
etc. 849.231
Lottery 849.09(1)(b) None Attempt
Lottery
849.09(1)(f)
Lottery
849.09(1)(g)
Lottery
849.09(1)(h)
Lottery
849.09(1)(i)
Lottery
849.09(1)(j)
Lottery
849.09(1)(k)
Gambling devices,
etc. 849.231
Lottery 849.09(1)(c) None Attempt
Lottery
849.09(1)(f)
Lottery
849.09(1)(g)
[Page A-86]
*1264
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Lottery
849.09(1)(h)
Lottery
849.09(1)(i)
Lottery
849.09(1)(j)
Lottery
849.09(1)(k)
Gambling devices,
etc. 849.231
Lottery 849.09(1)(d) None Attempt
Lottery
849.09(1)(f)
Lottery
849.09(1)(g)
Lottery
849.09(1)(h)
Lottery
849.09(1)(i)
Lottery
849.09(1)(j)
Lottery
849.09(1)(k)
Playing at game of
chance by lot
849.11
Gambling devices,
etc. 849.231
Lottery 849.09(1)(g) None Attempt
Lottery 849.09(1)(h) None Attempt
Lottery 849.09(1)(k) None Attempt
Bookmaking on grounds of None Attempt
permit-holder 550.361
(adapted from former 849.24)
Bookmaking 849.25(1) and (2) None Attempt
[Page A-87]
*1265
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Bookmaking 849.25(3) Bookmaking 849.25(2) Attempt
Bookmaking on grounds
of permit
holder 550.361
Driving under the influence None Attempt
316.193(1)
DUI with damage to property or DUI 316.193(1) None
person 316.193(3)(c)1
DUI with serious bodily injury DUI 316.193(1) DUI 316.193(3)(c)1
316.193(3)(c)2
DUI manslaughter DUI 316.193(1) Vehicular homicide
316.193(3)(c)3 782.071
DUI 316.193(3)(c)2
DUI 316.193(3)(c)1
Sale, manufacture, delivery or None Attempt, except when
possession with intent to delivery is
sell, manufacture or deliver charged;
controlled substance 893.13(1)(g) if
893.13(1)(a) possession or
delivery of
cannabis charged
893.13(1)(f) if
possession is
charged[*h]
[Page A-88]
*1266
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Sale, delivery or possession None Attempt, except when
of more than 10 grams of delivery is charged
controlled substance 893.13(1)(a)
893.13(1)(b) 893.13(1)(f) if
possession is
charged
Delivery of controlled None 893.13(1)(a)
substance to person under 893.13(1)(g) if
18 years old 893.13(1)(c) cannabis charged
Bringing controlled substance None Attempt
into state 893.13(1)(d) 893.13(1)(f)
893.13(1)(g) if
cannabis charged
Possession of controlled None Attempt 893.13(1)(g)
substance 893.13(1)(f) if cannabis
charged
Offense of possession or None Attempt, except when
delivery of not more than delivery is charged
20 grams of cannabis
893.13(1)(g)
Obtaining controlled None
substances by fraud
893.13(3)(a)1
Sale, purchase, etc., near None Sale, purchase,
public school 893.13(1)(e) manufacture, etc.,
893.13(1)-(4)
Possession of drug None Attempt
paraphernalia
893.147(1)
[Page A-89]
*1267
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Delivery, possession with None Attempt, except when
intent to deliver, or delivery is charged
manufacture with intent
to deliver drug
paraphernalia 893.147(2)
Delivery of drug paraphernalia None None
to a minor 893.147(3)
Trafficking in cannabis None Attempt, except when
893.135(1)(a) delivery is charged
893.13(1)(a) if sale,
manufacture or
delivery is charged
Bringing cannabis
into state
893.13(1)(d)
Possession of
cannabis
893.13(1)(f)
Possession or
delivery of
cannabis
893.13(1)(g)
Trafficking in cocaine None Attempt, except when
893.135(1)(b) delivery is charged
893.13(1)(a) if sale,
manufacture or
delivery is charged
Bringing cocaine into
state
893.13(1)(d)
Possession of cocaine
893.13(1)(f)
[Page A-90]
*1268
CHARGED OFFENSES CATEGORY 1 CATEGORY 2
Trafficking in illegal drugs None Attempt, except when
893.135(1)(c) delivery is charged
893.13(1)(a) if sale,
manufacture or
delivery is charged
Bringing same illegal
drug as charged
into state
893.13(1)(d)
Possession of same
illegal drug
893.13(1)(f)
Trafficking in phencyclidine None Attempt, except when
893.135(1)(d) delivery is charged
893.13(1)(a) if sale,
manufacture or
delivery is charged
Bringing
phencyclidine into
state
893.13(1)(d)
Possession of
phencyclidine
893.13(1)(f)
Trafficking in methaqualone None Attempt, except when
893.135(1)(d) delivery is charged
893.13(1)(a) if sale,
manufacture or
delivery is charged
Bringing methaqualone
into state
893.13(1)(d)
Possession of
methaqualone
893.13(1)(f)
[Page A-91]
*1269 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Contraband 951.22 None The nature of the contraband may give rise to misdemeanor, lesser included offenses. See Cooper v. State, 512 So.2d 1071 (Fla. 1st DCA 1987); Moore v. State, 512 So.2d 1149 (Fla. 1st DCA 1987).
Explanation of amendments: The committee has not reviewed the Schedule in detail. The changes, therefore, do not necessarily fully update it. Only matters specifically brought to the committee's attention are addressed above.
[Page A-92]
NOTES
[*] But see Martin v. State, 342 So.2d 501 (Fla. 1977); Drotar v. State, 433 So.2d 1005 (Fla. 3d DCA 1983), holding that nonhomicide lessers should not be given when the only issue is whether the death was a lawful or unlawful homicide, but should be given if there is an issue of causation, i.e., whether death was caused by defendant's act or some other unconnected cause. When a nonhomicide offense is a necessarily lesser included offense of the homicide offense, an instruction on the lesser may be necessary. See certified question in Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987), rev'd, 531 So.2d 338 (Fla. 1988).
[*a] See Scurry v. State, 521 So.2d 1077 (Fla. 1988).
[*b] But see Martin v. State, 342 So.2d 501 (Fla. 1977).
[*c] But see Smith v. State, 330 So.2d 526 (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976).
[*d] See Taylor v. State, 444 So.2d 931 (Fla. 1984).
[*e] Rotenberry v. State, 468 So.2d 971 (Fla. 1985)
[*f] See Higgins v. State, 565 So.2d 698 (Fla. 1990).
[*g] But see Richardson v. State, 523 So.2d 746 (Fla. 5th DCA 1988); Sands v. State, 542 So.2d 436 (Fla. 2d DCA 1989).
[*h] Provided that charged offense is a second degree felony under section 893.13(1)(a)1.