Amendments to criminal case jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing amendments to jury instructions 25.2 (Sale, Purchase, Manufacture, Delivery or Possession with Intent to Sell, Purchase, Manufacture, or Deliver); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.7 (Possession of a Controlled Substance); 25.8 (Obtaining a Controlled Substance by Fraud, Etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in [Morphine] [Opium] [Oxycodone] [Hydrocodone] [Hydromorphone] [Heroin] [(Specified Substance Alleged)]); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in Methaqualone); 25.14 (Use or Possession With Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program]); 25.20 (Possession of Contraband [in] [upon the] Grounds of a State Correctional Facility); and 25.21 ([Introduction] [Removal] of Contraband [Into] [From] a State Correctional Institution). The court invites all interested persons to comment on the committee's proposals, which are reproduced in full below, as well as online at www.floridasupremecourt. org/decisions/proposed.shtml. All comments must be filed with the court on or before January 14, 2014, with a certificate of service verifying that a copy has been served on Criminal Instructions Committee Chair Judge Joseph Anthony Bulone, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee 32399-1925, schneidb@flcourts.org. A separate request for oral argument should accompany the comment if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until February 4, 2014, to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES--REPORT NO. 2013-05, CASE NO. SC13-1733

25.2 [begin strikethrough]DRUG ADUSE[end strikethrough]--SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER

[section] 893.13(1)(a) and(2)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:

  1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

    [begin strikethrough][sold][end strikethrough]

    [begin strikethrough][purchased][end strikethrough]

    [begin strikethrough][manufactured][end strikethrough]

    [begin strikethrough][delivered][end strikethrough]

    [begin strikethrough][possessed with intent to sell][end strikethrough]

    [begin strikethrough][possessed with intent to purchase][end strikethrough]

    [begin strikethrough][possessed with intent to manufacture][end strikethrough]

    [begin strikethrough][possessed with intent to deliver] a certain substance.[end strikethrough]

  2. The substance was (specific substance alleged).

    Give element #3 if P[begin strikethrough]p[end strikethrough]ossession With Intent to either Sell, Purchase, Manufacture or Deliver is charged.

    It is unclear whether element #3 must be given for Sale, Manufacture, Delivery, or Purchase of a Controlled Substance. See Comment section.

  3. (Defendant) had knowledge of the presence of the substance.

    Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See [section] 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight.

  4. or 4. The cannabis weighed more than 20 grams.

    Definitions. Give as applicable.

    Cannabis. [section][section][section] 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.

    Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

    Sell.

    "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

    Manufacture. [section] 893.02(13)(a), Fla. Stat.

    "Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

    Deliver. [section] 893.02(5), Fla. Stat.

    "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

    Possession.

    [begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

    [begin strikethrough]Possession may be actual or constructive.[end strikethrough]

    There are two ways to exercise control: actual possession and constructive possession.

    Actual possession.

    Actual possession means the person is aware of the presence of the substance and:

    1. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

    2. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

    3. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

      [begin strikethrough]Give if applicable.[end strikethrough]

      [begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

      Constructive possession.

      Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it[end strikethrough].

      Give if applicable.

      Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

      Give if applicable.

      In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough]_(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

      Joint possession.

      Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance.

      [begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

      [begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough]

      Inferences.

      Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

      You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

      Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

      If you find that (defendant):

    4. had direct physical custody of the substance, [or]

    5. was within ready reach of...

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