Amendments to jury instructions in criminal cases.

 
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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:

2.1(d)--PSYCHOTROPIC MEDICATION

10.13--SHOOTING A DEADLY MISSILE INTO A [BUILDING] [VEHICLE]

10.14--POSSESSION OF A [SHORT-BARRELED RIFLE] [SHORT-BARRELED SHOTGUN] [MACHINE GUN]

10.15--FELONS CARRYING A CONCEALED WEAPON OR POSSESSING [A FIREARM] [AMMUNITION] [AN ELECTRIC WEAPON OR DEVICE]

10.15(a)--POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR CARRYING A CONCEALED WEAPON BY A PERSON UNDER THE AGE OF 21 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT

14.1--THEFT

20.13--FRAUDULENT USE OR POSSESSION WITH INTENT TO FRAUDULENTLY USE PERSONAL IDENTIFICATION INFORMATION

20.14--HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION

20.15--FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON SIXTY YEARS OF AGE OR OLDER]

20.16--FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR OLDER] BY A PARENT, GUARDIAN, OR PERSON WHO EXERCISED CUSTODIAL AUTHORITY

20.17--FRAUDULENT USE OR POSSESSION WITH INTENT TO FRAUDULENTLY USE PERSONAL IDENTIFICATION INFORMATION CONCERNING A [DECEASED INDIVIDUAL] [DISSOLVED BUSINESS ENTITY]

20.18--[FRAUDULENT CREATION OF] [FRAUDULENT USE OF] [POSSESSION WITH INTENT TO FRAUDULENTLY USE] COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION

20.21--FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT] [VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL EMPLOYEE]

21.17--COMPOUNDING A FELONY

21.18--ACCESSORY AFTER THE FACT

26.9--MONEY LAUNDERING

29.5--DISORDERLY CONDUCT

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 January 31. 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.

2.1(d) [begin strikethrough]INSANITY--[end strikethrough]PSYCHOTROPIC MEDICATION

[begin strikethrough]Give, if requested by defendant, at the beginning of trial and in the charge to the jury.[end strikethrough] If the defendant's ability to proceed to trial is dependent on the use of psychotropic medication, give if requested by the defense, at the beginning of the trial and in the charge to the jury. See Fla. R. Crim. P. 3.215(c).

(Defendant) currently is being administered psychotropic medication under medical supervision for a mental or emotional condition.

Psychotropic medication is any drug or compound affecting the mind or behavior, intellectual functions, perception, moods, or emotion and includes anti-psychotic, anti- depressant, anti-manic, and anti-anxiety drugs.

You shall not allow the defendant's present condition in court or any apparent side effect from the medication that you may observe in court to affect your deliberations.

Comment

This instruction was adopted in 2015 [157 So. 3d 1027] and amended in 2018.

10.13 SHOOTING OR THROWING [begin strikethrough]MISSILES IN DWELLING[end strikethrough] [MISSILE] [STONE] [HARD SUBSTANCE] [AT] [WITHIN] [INTO] [IN] A [BUILDING] [VEHICLE] [VESSEL] [AIRCRAFT]

[section] 790.19, Fla._Stat.

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

Give 1a and/or 1b as applicable.

  1. (Defendant)

    1. [shot] [or] [threw] a missile that would produce death or great bodily harm.

    2. hurled or projected a stone or other hard substance that would produce death or great bodily harm.

    [begin strikethrough][shot a firearm].[end strikethrough]

    [begin strikethrough][threw a missile].[end strikethrough]

    [begin strikethrough][hurled or projected a stone or other hard substance that would produce death or great bodily harm].[end strikethrough]

    Give 2a-2f as applicable.

  2. [He] [She] did so [at] [within] [into] [in]

    1. [begin strikethrough][[end strikethrough]a public or private building, occupied or unoccupied[begin strikethrough]][end strikethrough].

    2. [begin strikethrough][[end strikethrough]a public or private bus, that was being used or occupied by any person[begin strikethrough]][end strikethrough].

    3. [begin strikethrough][[end strikethrough]a train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, [begin strikethrough]or vehicle of any kind[end strikethrough] that was being used or occupied by any person].

    4. [begin strikethrough][[end strikethrough]a vehicle of any kind that was being used or occupied by any person].

    5. [begin strikethrough][[end strikethrough]a boat, vessel, ship, or barge lying in or plying the waters of this state[begin strikethrough]][end strikethrough].

    6. [begin strikethrough][[end strikethrough]an aircraft flying through the air space of this state[begin strikethrough]][end strikethrough].

  3. The defendant's act was done wantonly or maliciously.

    [begin strikethrough]Definitions[end strikethrough] State v. Kettell, 980 So. 2d 1061 (Fla. 2008).

    "[begin strikethrough]"[end strikethrough]Wantonly[begin strikethrough]"[end strikethrough]" means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.

    State v. Kettell, 980 So. 2d 1061 (Fla. 2008).

    "[begin strikethrough]"[end strikethrough]Maliciously[begin strikethrough]"[end strikethrough]" 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.

    Give if applicable. Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984).

    [begin strikethrough]A "firearm" is legally defined as (adapt from [section] 790.001, Fla.Stat., as required by allegations).[end strikethrough]It is not necessary for the State to prove a defendant acted with malevolence toward a vehicle or structure itself because he or she may have acted with a wanton or malicious attitude directed toward an individual within or near the vehicle or structure.

    Lesser Included Offenses

    SHOOTING OR THROWING [begin strikethrough]MISSILES IN DWELLING [end strikethrough][MISSILE] [STONE] [HARD SUBSTANCE] [AT] [WITHIN] [INTO] [IN] A [BUILDING] [VEHICLE] [VESSEL] [AIRCRAFT]--790.19 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Criminal Mischief 806.13 12.4 Discharging firearm in 790.15 10.6 public Comment

    This instruction was adopted in 1981 and amended in 2018.

    10.14 POSSESSION OF [begin strikethrough]FORBIDDEN FIREARMS [end strikethrough]A [SHORT-BARRELED RIFLE] [SHORT-BARRELED SHOTGUN] [MACHINE GUN]

    [section] 790.221, Fla._Stat.

    To prove the crime of [begin strikethrough](crime charged)[end strikethrough]Possession of a [Short-Barreled Rifle] [Short-Barreled Shotgun] [Machine Gun], the State must prove the following two elements beyond a reasonable doubt:

  4. (Defendant) [begin strikethrough][[end strikethrough]owned[begin strikethrough]] [[end strikethrough]or had in [his] [her] care, custody, possession, or control] a [begin strikethrough](firearm alleged)[end strikethrough] [short-barreled rifle] [short-barreled shotgun] [machine gun].

  5. The [begin strikethrough](firearm alleged))[end strikethrough] [short- barreled rifle] [short-barreled shotgun] [machine gun] was one that was, or could readily be made, operable.

    Antique Firearm Affirmative Defenses. Give if applicable.

    [begin strikethrough]If you find that the (firearm alleged) was lawfully owned and possessed under provisions of the federal law, you shall find the defendant not guilty.[end strikethrough]

    [section] 790.221(1), Fla. Stat.; [section] 790.001(1), Fla. Stat.

    The statute and case law are silent as to (1) which party bears the burden of persuasion of the 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 affirmative defenses 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.

    [begin strikethrough]This law does not apply to antique firearms. [end strikethrough]It is a defense if the [short-barreled rifle] [short-barreled shotgun] [machine gun] is an antique firearm. An "antique firearm" means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

    If burden of persuasion is on the defendant:

    If you find that defendant proved (insert appropriate burden of persuasion) that the [short-barreled rifle]...

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