The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions for comment. The committee proposes the following:
3.6(f)--JUSTIFIABLE USE OF DEADLY FORCE
3.6(g)--JUSTIFIABLE USE OF NON-DEADLY FORCE
7.8--DRIVING UNDER THE INFLUENCE MANSLAUGHTER
7.8(a)--BOATING UNDER THE INFLUENCE MANSLAUGHTER
11.14(h)--SEXUAL OFFENDER DEFINITIONS
11.5(1)--SEXUAL PREDATOR DEFINTIONS
18.3--FALSE INFORMATION TO LAW ENFORCEMENT OFFICER
20.18(a)--UNLAWFUL POSSESSION OF PERSONAL IDENTIFICATION INFORMATION
21.15--FALSE INFORMATION TO LAW ENFORCEMENT OFFICER
25.2--SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE
25.3--SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS OF A CONTROLLED SUBSTANCE
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] [HYDROMORPHONE] [HEROIN] [(SPECIFIC SUBSTANCE ALLEGED)]
25.11(a)--TRAFFICKING IN HYDROCODONE
25.11(b)--TRAFFICKING IN OXYCODONE
25.13--TRAFFICKING IN METHAQUALONE
25.13(a)--TRAFFICKING IN [AMPHETAMINE] [METHAMPHETAMINE]
25.13(b)--TRAFFICKING IN FLUNITRAZEPAM
25.13(c)--TRAFFICKING IN [GHB] [GBL] [1.4-BUTANEDIOL]
25.13(d)--TRAFFICKING IN PHENETHYLAMINES (INCLUDES MDMA)
25.13(e)--TRAFFICIKING IN LSD
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 INSTITUTION
25.21--[INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A STATE CORRECTIONAL INSTITUTION
28.18--FAILURE TO OBEY THE LAWFUL ORDER OF A [POLICE] [TRAFFIC] OFFICIAL
29.26--UNLAWFUL USE OF A TWO-WAY COMMUNICATION DEVICE
The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before August 31, 2016. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel's Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.
3.6(f) JUSTIFIABLE USE OF DEADLY FORCE
Because there are many statutes applicable to self-defense, give only those parts of the instructions that are required by the evidence. However, unless the evidence establishes the force or threat of force was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State, 126 So. 3d 400 (Fla. 4th DCA 2013).
It is a defense to the crime[s] of (name[s] of relevant crime[s]) if the actions of (defendant) constituted the justifiable use of deadly force. "Deadly force" means force likely to cause death or great bodily harm.
Both Chapter 776 and [section] 782.02, Fla. Stat., address the justifiable use of deadly force.
Give if applicable. [section] 782.02, Fla. Stat.
The use of deadly force is justifiable if the defendant reasonably believed that the force was necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:
another's attempt to murder [him] [her], or
any attempt to commit (applicable felony) upon [him] [her], or
any attempt to commit (applicable felony) upon or in any dwelling house in which [he] [she] was present
occupied by [him] [her].
Give the elements of the applicable felony that defendant alleges victim attempted to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).
Give if applicable. [section][section] 776.012(2), 776.013(3), 776.031(2), Fla. Stat.
(Defendant) was justified in [using] [or] [threatening to use] deadly force if [he] [she] reasonably believed that such [force] [or] [threat of force] was necessary to prevent [imminent death or great bodily harm to [himself] [herself] [or] [another] [or] [the imminent commission of (applicable forcible felony listed in [section] 776.08, Fla. Stat.) against [himself] [herself] [or another]]. If (defendant) was not otherwise engaged in criminal activity and was in a place [he] [she] had a right to be, then [he] [she] had no duty to retreat and had the right to stand [his] [her] ground.
Give the elements of the applicable forcible felony that defendant alleges victim was about to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011).
Give if applicable when there is evidence that the defendant was engaged in criminal activity or was not in a place where he or she had a right to be, which means there was a duty to retreat. Morgan v. State, 127 So. 3d 708 (Fla. 5th DCA 2013). Where appropriate, the court should state or define the applicable criminal activity that may have been engaged in by the defendant.
If (defendant) was otherwise engaged in criminal activity or was not in a place [he] [she] had a right to be, then the use of deadly force was not justified unless [he] [she] used every reasonable means within [his] [her] power and consistent with [his] [her] own safety to avoid the danger before resorting to the use of deadly force. The fact that the defendant was wrongfully attacked cannot justify [his] [her] use of deadly force, if, by retreating, [he] [she] could have avoided the need to use deadly force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] use of deadly force was justifiable.
Force in resisting a law enforcement officer. [section] 776.051(1), Fla. Stat.
A person is not justified in [using force] [or] [threatening to use force] to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
Give if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the [use] [or] [threatened use] of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such [force] [or] [threat of force] is necessary. See [section]
776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
Read in all cases.
In deciding whether (defendant) was justified in the [use] [or] [threatened use] of deadly force, you must consider the circumstances by which [he] [she] was surrounded at the time the [force] [or] [threat of force] was used. The danger need not have been actual; however, to justify the [use] [or] [threatened use] of deadly force, 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] [or] [threat of force]. Based upon appearances, (defendant) must have actually believed that the danger was real. However, the defendant had no duty to retreat if [he] [she] was not otherwise engaged in criminal activity and was in a place where [he] [she] had a right to be.
Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. [section] 776.013(1), Fla. Stat.
(Defendant) is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when [using] [or] [threatening to use] defensive force that was intended or likely to cause death or great bodily harm to another if:
The person against whom the defensive force was [used] [or] [threatened to be used] was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
Exceptions to Presumption of Fear. [section] 776.013(2)(a)-(2)(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:
the person against whom the defensive force is [used] [or] [threatened to be used] has the right to be in [or is a lawful resident of the [dwelling] [residence]] [vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision...