Amendments to criminal jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following:

3.6(m)--AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL

3.6(n)--AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE WAS LAWFULLY OBTAINED FROM A PRACTITIONER OR PURSUANT TO A VALID PRESCRIPTION

7.4--SECOND DEGREE MURDER

10.20--[CARE] [CUSTODY] [POSSESSION [CONTROL] OF [A FIREAM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

11.14(h)--SEXUAL OFFENDER DEFINITIONS

1L15(t)--SEXUAL PREDATOR DEFINTIONS

14.8--UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD

16.11--[POSSESION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD

20.18(a)--UNLAWFUL POSSESSION OF THE PERSONAL IDENTIFICATION INFORMATION OF ANOTHER PERSON

22.10--POSSESSING A LOTTERY TICKEY

22.11--POSSESSING RUNDOWN SHEETS, ETC.

22.15--[MANUFACTURING] [OWNING] [STORING] [KEEPING] [POSSESSION OF] [PERMITTING THE OPERATION OF] [SELLING] [LEASING] [TRANSPORTING] A SLOT MACHINE

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(a)--TRAFFICKING IN (NAME OF CONTROLLED SUBSTANCE)

25.8--OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.

25.13(g)--POSSESSION OF A PLACE FOR [[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION]

25.13(h)--POSSESSION OF A PLACE USED TO MANUFACTURE A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION (MINOR PRESENTOR IN RESIDENCE)

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

25.15(b)--TRANSPORTATION OF DRUG PARAPHERNALIA

25.17--CONTRABAND IN COUNTY DETENTION FACILITY

25.18--CONTRABAND IN JUVENILE [DETENTION FACILITY] [COMMITMENT PROGRAM]

25.19--UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY, UTTERING OR POSSESSION OF COUNTERFETI-RESISTANT PRESCRIPTION BALNKS FOR CONTROLLED SUBSTANCES

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

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 September 14, 2018. 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(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL

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

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

1. (Defendant) possessed the controlled substance.

2. (Defendant) acquired the controlled substance without unlawful intent.

3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.

4. The temporary possession was solely for the purpose of legal disposal.

   Definitions.

   "Legal disposal" means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

   To "possess a substance" means the defendant at knew of the existence of the substance and b) intentionally exercised control over that substance.

   Give if applicable.

   Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

   Joint possession. Give if applicable. Possession of a substance may he sole or joint, that is. two or more persons may possess a substance.

   This defense does not apply if (defendant) disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

   There is no statute for the defense of "legal disposal" and, as of Mav 2018, the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

   The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

   If burden of persuasion is on the defendant:

   If you find that defendant proved

   (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

   If burden of persuasion is on the State:

   If you find that the State proved (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] not guilty.

   Comments

   [begin strikethrough]See[end strikethrough] See Ramsubhag v. State, 93 7 So. 2d 1192 (Fla. 4*th_DCA 2006) and Stanton v. State, 746 So. 2d 1229 (Fla. 3d DCA 1999) for discussion on this topic.

   This instruction was adopted in [begin strikethrough]2012[end strikethrough] 2013 1141 So. 3d 1321 and amended in 2018.

   3.6(n) AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE WAS LAWFULLY OBTAINED FROM A PRACTITIONER OR PURSUANT TO A VALID PRESCRIPTION

   [section][section] 499.03(1), 893.13(6)(

   1. Fla. Stats.

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

   It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he] [she] lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.

   Like all affirmative defenses and pursuant to [section] 893.10(1), Fla. Stat., the burden of going forward with evidence of the defense is upon the defendant. Fla. Stats. 893.10(1), 893.13(6)(a), and 499.03(1) are silent, however, as to the burden of persuasion for the affirmative defense. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

   The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g, self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v United States, 548 U.S. 1 (2006), for further guidance.

   For example, if the burden to prove the affirmative defense is on the defendant under the preponderance of the evidence standard.

   If you find the defendant proved by a preponderance of the evidence that [he] [she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] not guilty of [possession of a controlled...