In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2016-03 , 202 So. 3d 830 ( 2016 )

Supreme Court of Florida
____________
No. SC16-782
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2016-03.
[October 27, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize the amended standard instructions for
publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following existing standard criminal
jury instructions: 3.13 (Submitting Case to Jury); 20.13 (Fraudulent Use or
Possession of 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 of Personal
Identification Information Concerning a Deceased Individual); 20.18 ([Fraudulent
Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use]
Counterfeit Personal Identification Information); and 20.21 (Fraudulent Use of
Personal Identification Information of a [Disabled Adult] [Public Servant]
[Veteran] [First Responder] [State Employee] [Federal Employee]). In addition,
the Committee proposes amending instruction 2.08 (Verdict and Submitting Case
to Jury), pertaining to “Special Proceedings,” specifically “Involuntary Civil
Commitment of Sexually Violent Predators.” The Committee published its
proposals in The Florida Bar News. No comments were received by the
Committee. Post-publication, the Committee made minor changes to instructions
20.13, 20.17, and 20.21. The Court did not publish the proposals after they were
filed.
The more significant changes to the standard criminal jury instructions are
discussed below. First, both instructions 2.08 (Verdict and Submitting Case to
Jury) and 3.13 (Submitting Case to Jury) are amended to add the following
sentence to the instructions: “If you have voted, do not disclose the actual vote in
the note.” This change is supported by Scoggins v. State, 691 So. 2d 1185, 1186-
88 (Fla. 4th DCA 1997), which stated that knowing the numerical divisions within
the jury could lead the trial judge to interact inappropriately with the jurors.
-2-
Next, in instructions 20.14 (Harassment by Use of Personal Identification
Information) and 20.18 ([Fraudulent Creation of] [Fraudulent Use of] [Possession
with Intent to Fraudulently Use] Counterfeit Personal Identification Information),
the language pertaining to enhanced penalties is removed from the italicized
instruction to the judge, and the following paragraph is added to the Comment
section of the instructions: “There are two possible enhanced penalties for this
crime. See § 817.568(5), and § 817.568(10), Fla. Stat. If one of those enhanced
penalties is charged, a special instruction would be necessary in order for the jury
to make the appropriate finding.”
The remaining amendments to the standard jury instructions are
straightforward and generally track the language of the offenses instructed upon.
Having considered the Committee’s report, we authorize the standard jury
instructions for publication and use as proposed by the Committee.
The amended criminal jury instructions and the amended involuntary civil
commitment of sexually violent predators jury instruction, as set forth in the
appendix to this opinion, are hereby authorized for publication and use.1 New
1. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
-3-
language is indicated by underlining, and deleted language is indicated by struck-
through type. In authorizing the publication and use of these instructions, we
express no opinion on their correctness and remind all interested parties that this
authorization forecloses neither requesting additional or alternative instructions nor
contesting the legal correctness of the instructions. We further caution all
interested parties that any comments associated with the instructions reflect only
the opinion of the Committee and are not necessarily indicative of the views of this
Court as to their correctness or applicability. The instructions as set forth in the
appendix shall be effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Barton Neil
Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee,
Florida,
for Petitioner
-4-
APPENDIX
3.13 SUBMITTING CASE TO JURY
In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. The first thing you should do is choose a foreperson who will
preside over your deliberations. The foreperson should see to it that your
discussions are carried on in an organized way and that everyone has a fair
chance to be heard. It is also the foreperson’s job to sign and date the verdict
form when all of you have agreed on a verdict and to bring the verdict form
back to the courtroom when you return.
During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
are not to communicate with any person outside the jury about this case. Until
you have reached a verdict, you must not talk about this case in person or
through the telephone, writing, or electronic communication, such as a blog,
twitter, e-mail, text message, or any other means. Do not contact anyone to
assist you during deliberations. These communications rules apply until I
discharge you at the end of the case. If you become aware of any violation of
these instructions or any other instruction I have given in this case, you must
tell me by giving a note to the [court deputy] [bailiff].
Give if judge has allowed jurors to keep their electronic devices during the
trial.
Many of you may have cell phones, tablets, laptops, or other electronic
devices here in the courtroom. The rules do not allow you to bring your
phones or any of those types of electronic devices into the jury room. Kindly
leave those devices on your seats where they will be guarded by the [court
deputy] [bailiff] while you deliberate.
Do not contact anyone to assist you during deliberations. These
communications rules apply until I discharge you at the end of the case. If you
become aware of any violation of these instructions or any other instruction I
have given in this case, you must tell me by giving a note to the [court deputy]
[bailiff].
If you need to communicate with me, send a note through the [court
deputy] [bailiff], signed by the foreperson. If you have voted, do not disclose
the actual vote in the note.
-5-
If you have questions, I will talk with the attorneys before I answer, so it
may take some time. You may continue your deliberations while you wait for
my answer. I will answer any questions, if I can, in writing or orally here in
open court.
Give if applicable.
During the trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you
in your deliberations.
Give a or b as appropriate.
[The[se] exhibit[s] will be sent into the jury room with you when you
begin to deliberate.]
[If you wish to see an[y] exhibit[s], please request that in writing.]
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions in deciding your verdict. There are no other
laws that apply to this case. Even if you do not like the laws that must be
applied, you must use them. For two centuries we have lived by the
constitution and the law. No juror has the right to violate rules we all share.
Comment
This instruction was adopted in 1981 and was amended in 2000 [777 So. 2d
366], 2003 [850 So. 2d 1272], 2010 [52 So. 3d 595], 2012 [141 So. 3d 132], and
2014 [152 So. 3d 529], and 2016.
20.13 FRAUDULENT USE OR POSSESSION WITH INTENT TO
FRAUDULENTLY USE OF PERSONAL IDENTIFICATION
INFORMATION
§ 817.568(2), Fla. Stat.
To prove the crime of [Fraudulent [Use] [Possession] of] [Possession
with Intent to Fraudulently Use] Personal Identification Information, the
State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) willfully and without authorization [fraudulently
used] [possessed with intent to fraudulently use] personal
identification information concerning (victim).
-6-
2. [He] [She] did so without first obtaining the consent of (victim).
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception or both.
§ 817.568(1)(b), Fla. Stat.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
§ 817.568(1)(e), Fla. Stat.
The word “person” includes individuals, children, firms, associations,
joint adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations, and all other groups or combinations.
Enhanced penalty. Give if applicable.
If you find the defendant(defendant) guilty of Fraudulent Use of
Personal Identification Information, you must then determine whether the
State has further proved beyond a reasonable doubt that:
-7-
Give only if Fraudulent Use is charged.
§ 817.568(2), Fla. Stat.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$5,000 or more.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$50,000 or more.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$100,000 or more.
The defendant[he] [she] fraudulently used the personal identification
information of 10 or more but fewer than 20 personsindividuals without their
consent.
The defendant[he] [she] fraudulently used the personal identification
information of 20 or more but fewer than 30 personsindividuals without their
consent.
The defendant[he] [she] fraudulently used the personal identification
information of 30 or more personsindividuals without their consent.
Give in all cases if charged.
§ 817.568(5), Fla. Stat.
Tthe crime was facilitated or furthered by the use of a public record.
§ 817.568(10), Fla. Stat.
The defendant(defendant) misrepresented [himself] [herself] to be [a law
enforcement officer] [an employee or representative of a bank, credit card
company, credit counseling company or credit reporting agency].
§ 817.568(10), Fla. Stat.
The defendant(defendant) wrongfully represented that [he] [she] was
seeking to assist the victim(victim) with the victim’s(victim’s) credit history.
-8-
Lesser Included Offenses
FRAUDULENT USE OR POSSESSION WITH INTENT TO
FRAUDULENTLY USE OF PERSONAL IDENTIFICATION
INFORMATION — 817.568(2)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
None
Attempt 777.04(1) 5.1
Harassment by use 817.568(4) 20.14
of personal
identification
information
Comment
This instruction was adopted in 2008 [980 So. 2d 1056] and amended in
2016.
20.14 HARASSMENT BY USE OF PERSONAL IDENTIFICATION
INFORMATION
§ 817.568(4), Fla. Stat.
To prove the crime of Harassment by Use of Personal Identification
Information, the State must prove the following three elements beyond a
reasonable doubt:
1. (Defendant) willfully and without authorization [possessed] [used]
[attempted to use] personal identification information concerning
(victim).
2. [He] [She] did so without first obtaining the consent of (victim).
3. [He] [She] did so with the purpose of harassing (victim).
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
-9-
§ 817.568(1)(b), Fla. Stat.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
§ 817.568(1)(e), Fla. Stat.
The word “person” includes individuals, children, firms, associations,
joint adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations, and all other groups or combinations.
§ 817.568(1)(c), Fla. Stat.
“Harass” means to engage in conduct directed at a specific person that
is intended to cause substantial emotional distress to such person and serves
no legitimate purpose. “Harass” does not mean to use personal identification
information for accepted commercial purposes and does not include
constitutionally protected conduct such as organized protests.
Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat.,
which if alleged will require an interrogatory.
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Lesser Included Offenses
HARASSMENT BY USE OF PERSONAL IDENTIFICATION
INFORMATION — 817.568(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO
None
Attempt (possession only) 777.04(1) 5.1
Comments
There are two possible enhanced penalties for this crime. See § 817.568(5),
and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2016.
20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON SIXTY YEARS OF AGE OR
OLDER]
§ 817.568(6), Fla. Stat.
To prove the crime of Fraudulent Use of Personal Identification
Information of a [Minor] [Person Sixty Years of Age or Older], the State must
prove the following three elements beyond a reasonable doubt:
1. (Defendant) willfully and without authorization fraudulently used
personal identification information concerning (victim).
2. At the time, (Vvictim) was [younger than 18 years of age] [60
years of age or older].
3. (Defendant) did so without first obtaining the consent of (victim)
[or [his] [her] legal guardian].
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
- 11 -
§ 817.568(1)(b), Fla. Stat.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
§ 817.568(1)(e), Fla. Stat.
The word “person” includes individuals, children, firms, associations,
joint adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations, and all other groups or combinations.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON SIXTY YEARS OF AGE OR
OLDER — 817.568(6)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
*Fraudulent Use of 817.568(2)(a) 20.13
Personal
Identification
Information
Attempt 777.04(1) 5.1
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Comments
*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully
and without authorization fraudulently using the victim’s personal identification
information is a necessary lesser included offense of this crime. However, the part
of § 817.568(2)(a), Fla. Stat. that covers the defendant possessing personal
identification information with intent to fraudulently use is not.
There are two possible enhanced penalties for this crime. See § 817.568(5),
and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015
[176 So. 3d 938], and 2016.
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
§ 817.568(7), Fla. Stat.
To prove the crime of 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], the State must
prove the following three elements beyond a reasonable doubt:
1. (Defendant) willfully and fraudulently used personal identification
information concerning (victim).
2. At the time, (Vvictim) was [younger than 18 years of age] [60
years of age or older].
3. (Defendant) was [the parent of] [the legal guardian of] [exercised
custodial authority over] (victim) at the time.
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
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“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
§ 817.568(1)(e), Fla. Stat.
The word “person” includes individuals, children, firms, associations,
joint adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations, and all other groups or combinations.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR
OLDER] BY A [PARENT] [GUARDIAN] [PERSON WHO EXERCISED
CUSTODIAL AUTHORITY] — 817.568(7)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
None
Attempt 777.04(1) 5.1
Comments
There are two possible enhanced penalties for this crime. § 817.568(5) and
§ 817.568(10), Fla. Stat. Idf one of these enhanced penalties is charged, a special
- 14 -
instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015
[176 So. 3d 938] and 2016.
20.17 FRAUDULENT USE OR POSSESSION WITH INTENT TO
FRAUDULENTLY USE OF PERSONAL IDENTIFICATION
INFORMATION CONCERNING A [DECEASED INDIVIDUAL]
[DISSOLVED BUSINESS ENTITY]
§ 817.568(8), Fla. Stat.
To prove the crime of [Fraudulent [Use] [Possession] of] [Possession
with Intent to Fraudulently Use] Personal Identification Information
Concerning a [Deceased Individual] [Dissolved Business Entity], the State
must prove the following two elements beyond a reasonable doubt:
1. (Defendant) [willfully and without authorization [fraudulently
used] [possessed with intent to fraudulently use] personal
identification information concerning (victim).
2. At the time, (Vvictim) was a [deceased individual] [dissolved
business entity].
Definitions. Give as applicable.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception or both.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(d), Fla. Stat.
“Individual” means a single human being and does not mean a firm,
association of individuals, corporation, partnership, joint venture, sole
proprietorship, or any other entity.
- 15 -
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific person or dissolved business entityindividual, including any name,
postal or electronic mail address, telephone number, social security number,
date of birth, mother’s maiden name, official state or United States issued
driver’s license or identification number, alien registration number,
government passport number, employer or taxpayer’s identification number,
Medicaid or food stamp account number, bank account number, credit or
debit card number or personal identification number or code assigned to the
holder of a debit card by the issuer to permit authorized use of such card,
unique biometric data such as fingerprint, voice print, retina or iris image, or
other unique physical representation, unique electronic identification number,
address, or routing code, medical record, telecommunication identifying
information or access device, or other number or information that can be used
to access a person’s financial resources.
Enhanced penalty. Give if applicable.
If you find the defendant(defendant) guilty of Fraudulent Use of
Personal Identification Information of a [Deceased Individual] [Dissolved
Business Entity], you must then determine whether the State has further
proved beyond a reasonable doubt that:
Give only if Fraudulent Use is charged.
§ 817.568(8), Fla. Stat.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$5,000 or more.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$50,000 or more.
Tthe pecuniary benefit, the value of the services received, the payment
sought to be avoided, or the amount of the injury or fraud perpetrated was
$100,000 or more.
The defendant[he] [she] fraudulently used the personal identification
information of 10 or more but fewer than 20 [deceased individuals] [dissolved
business entities]without their consent.
- 16 -
The defendant[he] [she] fraudulently used the personal identification
information of 20 or more but fewer than 30 [deceased individuals] [dissolved
business entities]without their consent.
The defendant[he] [she] fraudulently used the personal identification
information of 30 or more [deceased individuals] [dissolved business entities]
without their consent.
Give in all cases if applicable.
§ 817.568(5), Fla. Stat.
Tthe crime was facilitated or furthered by the use of a public record.
§ 817.568(10), Fla. Stat.
The defendant(defendant) misrepresented [himself] [herself] to be [a law
enforcement officer] [an employee or representative of a bank, credit card
company, credit counseling company or credit reporting agency].
The defendant(defendant) wrongfully represented that [he] [she] was
seeking to assist the victim(victim) with the victim’s(victim’s) credit history.
Lesser Included Offenses
FRAUDULENT USE OR POSSESSION WITH INTENT TO
FRAUDULENTLY USEOF PERSONAL IDENTIFICATION
INFORMATION CONCERNING A [DECEASED INDIVIDUAL]
[DISSOLVED BUSINESS ENTITY] — 817.568(8)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
None
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2008 [980 So. 2d 1056] and amended in
2016.
- 17 -
20.18 [FRAUDULENT CREATION OF], [FRAUDULENT USE OF] OR
[POSSESSION WITH INTENT TO FRAUDULENTLY USE] OF
COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION
§ 817.568(9), Fla. Stat.
To prove the crime of [Fraudulent [Creation of] [Fraudulent Use of]
[Possession with Intent to Fraudulently Use] of Counterfeit Personal
Identification Information, the State must prove the following three elements
beyond a reasonable doubt:
1. (Defendant) willfully and fraudulently [created] [used] [possessed
with intent to fraudulently use] counterfeit or fictitious personal
identification information.
Give 2a or 2b as applicable.
2. a. The personal identification information concerned a
fictitious individual.
b. The personal identification information concerned a real
individual whose consent had not first been obtained.
3. [He] [She] did so with intent to commit or facilitate the
commission of a fraud on another person.
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
- 18 -
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
§ 817.568(1)(g), Fla. Stat.
“Counterfeit or fictitious personal identification information” means
any counterfeit, fictitious or fabricated information in the similitude of the
data just defined to you that, although not truthful or accurate, would in
context lead a reasonably prudent person to credit its truthfulness and
accuracy.
§ 817.568(1)(e), Fla. Stat.
The word “person” includes individuals, children, firms, associations,
joint adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations, and all other groups or combinations.
Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat.,
which if alleged will require an interrogatory.
Lesser Included Offenses
FRAUDULENT CREATION, USE OR POSSESSION OF
COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION —
817.568(9)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments
There are two possible enhanced penalties for this crime. See § 817.568(5),
and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2016.
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20.21 FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT]
[VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL
EMPLOYEE]
§ 817.568(11), Fla. Stat.
To prove the crime of Fraudulent Use of Personal Identification
Information of a [Disabled Adult] [Public Servant] [Veteran] [First
Responder] [State Employee] [Federal Employee], the State must prove the
following three elements beyond a reasonable doubt:
1. (Defendant) willfully and without authorization fraudulently used
personal identification information concerning (victim).
2. At the time, (Vvictim) was [a disabled adult] [a public servant] [a
veteran] [a first responder] [a state employee] [a federal
employee].
3. (Defendant) did so without first obtaining consent of (victim).
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
§ 817.568(1)(b), Fla. Stat.
“Authorization” means empowerment, permission, or competence to
act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific personindividual, including any name, postal or electronic mail
address, telephone number, social security number, date of birth, mother’s
maiden name, official state or United States issued driver’s license or
identification number, alien registration number, government passport
number, employer or taxpayer’s identification number, Medicaid or food
stamp account number, bank account number, credit or debit card number or
personal identification number or code assigned to the holder of a debit card
by the issuer to permit authorized use of such card, unique biometric data
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such as fingerprint, voice print, retina or iris image, or other unique physical
representation, unique electronic identification number, address, or routing
code, medical record, telecommunication identifying information or access
device, or other number or information that can be used to access a person’s
financial resources.
Give as applicable.
§ 825.101(3), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person’s ability to perform the
normal activities of daily living.
§ 838.014(6), Fla. Stat.
“Public servant” means (a) Any officer or employee of a state, county,
municipal, or special district agency or entity; (b) Any legislative or judicial
officer or employee; (c) Any person, except a witness, who acts as a general or
special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant,
or hearing officer while performing a governmental function; or (d) A
candidate for election or appointment to any of the positions listed in this
subsection, or an individual who has been elected to, but has yet to officially
assume the responsibilities of, public office.
§ 838.014(7), Fla. Stat.
“Public servant” means any officer or employee of a governmental
entity, including any executive, legislative, or judicial branch officer or
employee.
Give if applicable. § 838.014(7)(b) and (7)(c), Fla. Stat.
“Public servant” also includes any person, except a witness, who acts as
a general or special magistrate, receiver, auditor, arbitrator, umpire, referee,
consultant, or hearing officer while performing a governmental function or a
candidate for election or appointment to any of these officer positions; or an
individual who has been elected to, but has yet to officially assume the
responsibilities of, public office.
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§ 838.014(4), Fla. Stat.
“Governmental entity” means an agency or entity of the state, a county,
municipality, or special district or any other public entity created or
authorized by law.
§ 1.01(14), Fla. Stat.
“Veteran” means a person who served in the active military, naval, or
air service and who was discharged or released under honorable conditions
only or who later received an upgraded discharge under honorable conditions,
notwithstanding any action by the United States Department of Veterans
Affairs on individuals discharged or released with other than honorable
discharges.
§ 125.01045(2), Fla. Stat.
“First responder” means a law enforcement officer, a firefighter, or an
emergency medical technician or paramedic who is employed by the state or a
local government. [A volunteer law enforcement officer, firefighter, or
emergency medical technician or paramedic engaged by the state or a local
government is also considered a first responder of the state or local
government for purposes of this section.]
§ 943.10(10), Fla. Stat.
“Law enforcement officer” means any person who is elected, appointed,
or employed full time by any municipality or the state or any political
subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is the prevention and detection of
crime or the enforcement of the penal, criminal, traffic, or highway laws of
the state. This definition includes all certified supervisory and command
personnel whose duties include, in whole or in part, the supervision, training,
guidance, and management responsibilities of full-time law enforcement
officers, part-time law enforcement officers, or auxiliary law enforcement
officers but does not include support personnel employed by the employing
agency.
§ 633.102(9), Fla. Stat.
“Firefighter” means an individual who holds a current and valid
Firefighter Certificate of Compliance or Special Certificate of Compliance
issued by the Division of State Fire Marshal within the Department of
Financial Services.
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§ 401.23(17), Fla. Stat.
“Paramedic” means a person who is certified by the Department of
Health to perform basic and advanced life support.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT]
[VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL
EMPLOYEE] — 817.568(11)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
*Fraudulent Use of 817.568(2)(a) 20.13
Personal
Identification
Information
Attempt 777.04(1) 5.1
Comments
*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully
and without authorization fraudulently using the victim’s personal identification
information is a necessary lesser included offense of this crime. However, the part
of § 817.568(2)(a), Fla. Stat., that covers the defendant possessing personal
identification information with intent to fraudulently use is not.
Both § 817.568(6), Fla. Stat., and § 817.568(11), Fla. Stat., criminalize
Fraudulent Use of Personal Identification Information of a Person 60 Years of Age
or Older. While both are second degree felonies, § 817.568(6), Fla. Stat., is listed
in level 8 and § 817.568(11), Fla. Stat., is unlisted, which would make it a level 4,
according to § 921.0023, Fla. Stat. If the State alleges that the defendant violated
§ 817.568(11), Fla. Stat., and that the victim was 60 years of age or older, the trial
judge should instruct using the appropriate parts of Instruction 20.15.
There are two possible enhanced penalties for this crime. See § 817.568(5)
and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2015 [176 So. 3d 938] and amended in 2016.
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Involuntary Civil Commitment of Sexually Violent Predators
2.08 VERDICT AND SUBMITTING CASE TO JURY
In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. The first thing you should do is choose a foreperson who will
preside over your deliberations. The foreperson should see to it that your
discussions are carried on in an organized way and that everyone has a fair
chance to be heard. It is also the foreperson’s job to sign and date the verdict
form when all of you have agreed on a verdict and to bring the verdict form
back to the courtroom when you return.
During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
are not to communicate with any person outside the jury about this case. Until
you have reached a verdict, you must not talk about this case in person or
through the telephone, writing, or electronic communication, such as a blog,
twitter, e-mail, text message, or any other means. Do not contact anyone to
assist you during deliberations. These communications rules apply until I
discharge you at the end of the case. If you become aware of any violation of
these instructions or any other instruction I have given in this case, you must
tell me by giving a note to the [court deputy] [bailiff].
Give if judge has allowed jurors to keep their electronic devices during the
trial.
Many of you may have cell phones, tablets, laptops, or other electronic
devices here in the courtroom. The rules do not allow you to bring your
phones or any of those types of electronic devices into the jury room. Kindly
leave those devices on your seats where they will be guarded by the [court
deputy] [bailiff] while you deliberate.
If you need to communicate with me, send a note through the [court
deputy] [bailiff], signed by the foreperson. If you have voted, do not disclose
the actual vote in the note. If you have questions, I will talk with the attorneys
before I answer, so it may take some time. You may continue your
deliberations while you wait for my answer. I will answer any questions, if I
can, in writing or orally here in open court.
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Give if applicable.
During the trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you
in your deliberations.
Give a or b as appropriate.
a. [The[se] exhibit[s] will be sent into the jury room with you when you
begin to deliberate.]
b. [If you wish to see an[y] exhibit[s], please request that in writing.]
Before the respondent may be confined to a secure facility as a sexually
violent predator, your verdict must be unanimous; that is, all of you must
agree to the same verdict. The verdict must be the verdict of each juror as
well as the jury as a whole.
If the verdict is not unanimous but a majority of the jury determines
that the respondent is a sexually violent predator, the case may be retried
before another jury.
If three or more jurors determine that the respondent is not proven to
be a sexually violent predator [he] [she] will not be confined to a secure
facility as a sexually violent predator and the case will not be retried before
another jury.
The verdict must be in writing and for your convenience the necessary
verdict form has been prepared for you. (Read and explain verdict form.)
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions in deciding your verdict. There are no other
laws that apply to this case. Even if you do not like the laws that must be
applied, you must use them. For two centuries we have lived by the
constitution and the law. No juror has the right to violate rules we all share.
Comments
Based upon § 394.917, Fla. Stat.; Florida Standard Jury Instruction
(Criminal) 3.13, Submitting Case to Jury.
This instruction was adopted in 2000 [777 So. 2d 366] and amended in 2012
[95 So. 3d 868], and 2014 [152 So. 3d 529], and 2016.
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