Amendments to jury instructions in criminal cases.

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:

3.3(a)--AGGRAVATION OF A FELONY BY CARRYING A FIREARM

3.3(b)--AGGRAVATION OF A FELONY BY CARRYING A WEAPON OTHER THAN A FIREARM

3.3(f)--AGGRAVATION OF A CRIME BY SELECTING A VICTIM BASED ON PREJUDICE

3.6(c)--INSANITY--PSYCHOTROPIC MEDICATION

8.18--VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE

8.19--VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST [REPEAT] [[SEXUAL] [DATING] VIOLENCE

8.22(a)--THREAT TO [KILL] [DO SERIOUS BODILY INJURY TO] A [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC OFFICIAL]

8.24--VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST [STALKING] [CYBERSTALKING]

10.9--FALSE REPORT CONCERNING THE [PLACING OR PLANTING OF A BOMB, DYNAMITE, OTHER DEADLY EXPLOSIVE, OR A WEAPON OF MASS DESTRUCTION] [USE OF FIREARMS IN A VIOLENT MANNER AGAINST A PERSON]

10.10--FALSE REPORT CONCERNING [THE PLACING OR PLANTING OF A BOMB, DYNAMITE, OTHER DEADLY EXPLOSIVE, OR A WEAPON OF MASS DESTRUCTION] [AN ACT OF ARSON OR OTHER VIOLENCE] TO PROPERTY OWNED BY THE STATE [OR ANY POLITICAL UBDIVISION]

11.7--UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS

11.10--LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY

11.10(a)--LEWD OR LASCIVIOUS BATTERY [ENGAGING IN SEXUAL ACTIVITY]

11.10(b)--LEWD OR LASCIVIOUS BATTERY 9ENCOURAGING, FORCING OR ENTICING

11.10(c)--LEWD OR LASCIVIOUS MOLESTATION

11.10(d)--LEWD OR LASCIVIOUS CONDUCT

11.10(e)--LEWD OR LASCIVIOUS EXHIBITION OF CHILD

11.10(f)--LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE

11.10(g)--LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY

11.11--LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON

11.12--INCEST

11.18--SEXUAL MISCONDUCT BY A PSYCHOTHERAPIST

11.19--SEXUAL MISCONDUCT BETWEEN DETENTION FACILITY EMPLOYEES AND INMATES

13.1--BURGLARY

16.10--POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE

19.1--BRIBERY OF A PUBLIC SERVANT

19.2--BRIBERY BY A PUBLIC SERVANT

19.3--UNLAWFUL COMPENSATION OR REWARD TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR

19.4--UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR

19.5--UNLAWFUL COMPENSATION OR REWARD TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR

19.6--UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR

19.7--OFFICIAL MISCONDUCT

20.6--WELFARE FRAUD--[FOOD ASSISTANCE IDENTIFICATION CARD] [AUTHORIZATION] [CERTIFICATE OF ELIGIBILITY FOR MEDICAL SERVICES] [MEDICAID IDENTIFICATION CARD]

20.6(a)--WELFARE FRAUD--[SELLING] [ATTEMPTING TO SELL] AN EBT CARD

21.7--GIVING FALSE NAME OR IDENTIFICATION TO LAW ENFORCEMENT OFFICER ADVERSELY AFFECTING ANOTHER

29.13(c)--SEXUAL ACTIVITY WITH AN ANIMAL

29.24--HUMAN TRAFFICKING

29.25--HUMAN TRAFFICKING BY A [PARENT] [LEGAL GUARDIAN] [PERSON WITH CUSTODY OR CONTROL] OF A MINOR

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 June 14, 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.

3.3(

1. AGGRAVATION OF A FELONY BY CARRYING A FIREARM [section] 775.087(1), Fla. Stat.

   If you find that (defendant) committed (felony as identified by [section] 775.087(1), Fla. Stat.) and you also find beyond a reasonable doubt that during the commission of the crime, [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a firearm, you should find [him] [her] guilty of (felony) with a firearm.

   Definition. [section] 790.001(6), Fla. Stat.

   A "firearm" is legally defined as (adapt from [section] 790.001(6), Fla. Stat., as required by allegations) any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.

   Give if applicable. Menendez v. State, 521 So. 2d 210 (Fla. 1st DCA 1988).

   To "carry" a firearm during the commission of a crime means either having the firearm on one's person or having it readily available.

   If you find that (defendant) committed (felony, as identified in [section] 775.087(1), Fla. Stat.), but you are not convinced beyond a reasonable doubt that [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a firearm, then you should find [him] [her] guilty only of (felony).

   Comments

   This instruction should not be given in conjunction with the instructions pertaining to any felony in which the use of a weapon or firearm is an essential element.

   The requirement that the defendant personally carried, etc., the firearm comports with the holding in State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992), that a defendant's offense may not be reclassified for a codefendant's possession of a firearm during a felony.

   This instruction was adopted in 1981 and amended in 2011 [73 So. 3d 136] and 2016.

   3.3(b) AGGRAVATION OF A FELONY BY CARRYING A WEAPON OTHER THAN A FIREARM

   [section] 775.087(1), Fla. Stat.

   If you find that (defendant) committed (felony, as identified by [section] 775.087(1), Fla. Stat.) and you also find beyond a reasonable doubt that during the commission of the crime [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a weapon, you should find [him] [her] guilty of (felony) with a weapon.

   Definition.

   A "weapon" is legally defined to mean any object that could be used to cause death or inflict serious bodily harm.

   Give if applicable. Menendez v. State, 521 So. 2d 210 (Fla. 1st DCA 1988).

   To "carry" a weapon during the commission of a crime means either having the weapon on one's person or having it readily available.

   If you find that (defendant) committed (felony, as identified in [section] 775.087(1), Fla. Stat.), but you are not convinced beyond a reasonable doubt that [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a weapon, then you should find [him] [her] guilty only of (felony).

   Comments

   This instruction should not be given in conjunction with the instructions pertaining to any felony in which the use of a weapon or firearm is an essential element.

   The requirement that the defendant personally carried, etc., the weapon comports with the holding in State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992), that a defendant's offense may not be reclassified for a codefendant's possession of a firearm during a felony.

   This instruction was adopted in 1981 and amended in 2011 [73 So. 3d 136] and 2016.

   3.3(f) AGGRAVATION OF A CRIME BY SELECTING A VICTIM BASED ON PREJUDICE

   [section] 775.085, Fla. Stat, and [section] 775.0863, Fla. Stat.

   If you find that (defendant) committed (crime charged or a lesser included crime) and you also find beyond a reasonable doubt that (defendant)

   1. perceived, knew, or had reasonable ground to perceive or know (victim's) [race] [color] [ancestry] [ethnicity] [religion] [sexual orientation] [national origin] [homeless status] [mental or physical disability] [advanced age], and

   2. intentionally selected (victim) because of that perception or knowledge, then you should find [begin strikethrough]the defendant[end strikethrough](defendant) guilty of (crime charged or lesser included crime) aggravated by the intentional selection of [begin strikethrough]the victim[end strikethrough](victim) based on prejudice.

      If you find that [begin strikethrough]the defendant[end strikethrough](defendant) committed (crime charged or a lesser included crime) beyond a reasonable doubt, but you are not convinced beyond a reasonable doubt that [he] [she] did so by intentionally selecting [begin strikethrough]the victim[end strikethrough] (victim) based on prejudice, then you should find [begin strikethrough]the defendant[end strikethrough][him] [her] guilty of only (crime charged or a lesser included crime).

      Definitions. Give if applicable.

      [section] 775.0863(1)(b), Fla. Stat.

      "Mental or physical disability" means [begin strikethrough]that the victim suffers from[end strikethrough] a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the [begin strikethrough]victim's[end strikethrough]person's ability to perform the normal activities of daily living.

      [section] 775.085(1)(b)1, Fla. Stat.

      "Advanced age" means that the [begin strikethrough]victim[end strikethrough]person is older than 65 years of age.

      [section] 775.085(1)(b)2, Fla. Stat.

      "Homeless status" means the [begin strikethrough]victim[end strikethrough]person lacks a fixed, regular, and adequate nighttime residence; or has a primary nighttime residence that is either (1) a supervised publicly or privately operated shelter designed to provide temporary living accommodations or (2) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for...