In Re: Standard Jury Instructions in Criminal Cases - Instructions 9.1 And 9.2 , 167 So. 3d 443 ( 2015 )

Supreme Court of Florida
____________
No. SC14-2343
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
INSTRUCTIONS 9.1 AND 9.2.
[June 18, 2015]
PER CURIAM.
Previously, upon the proposal of the Supreme Court Committee on Standard
Jury Instructions in Criminal Cases (Committee), the Court authorized for
publication and use amendments to instructions 9.1 (Kidnapping) and 9.2 (False
Imprisonment) in response to recent amendments to section 787.01(3)(a), Florida
Statutes (2014), and section 787.02(3)(a), Florida Statutes (2014). In re: Std. Jury
Instrs. in Crim. Cases—Instructions 9.1 & 9.2, 156 So. 3d 495 (Fla. 2015).
Because the instructions as amended had not been subject to public comment, the
Court provided for a comment period. Id. at 496. Following our authorization for
publication and use of instructions 9.1 and 9.2, one comment was received, to
which the Committee filed a response. After considering the comment and
response, we further amend instructions 9.1 and 9.2 as discussed below.1 We have
jurisdiction. See art. V, § 2(a), Fla. Const.
Consistent with the Committee’s recommendation in its response to the
comment, the definition for “secretly” in instructions 9.1 and 9.2 is amended to
include the victim’s name, i.e., “(victim),” rather than referring to “the victim.”
Instructions 9.1 and 9.2 are authorized for publication and use as reflected in the
appendix to this opinion. New language is underscored 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.
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.
1. Minor, technical changes to the instructions are not elaborated upon.
-2-
Original Proceedings – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Sanford, Florida; and Bart Neil Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
Heatha Love Trigones, Assistant State Attorney, Seventh Judicial Circuit, Daytona
Beach, Florida,
Responding with Comments
-3-
APPENDIX
9.1 KIDNAPPING
§ 787.01, Fla. Stat.
To prove the crime of Kidnapping, the State must prove the following
three elements beyond a reasonable doubt:
1. (Defendant) [forcibly] [secretly] [by threat]
[confined]
[abducted]
[imprisoned]
(victim) against [his] [her] will.
2. (Defendant) had no lawful authority to do so.
3. (Defendant) acted with intent to:
Give 3a, 3b, 3c, or 3d as applicable.
If 3b is given, define applicable felony.
a. hold (victim) for ransom or reward or as a shield or hostage.
b. commit or facilitate the commission of (applicable felony).
c. inflict bodily harm upon or to terrorize (victim) or another
person.
d. interfere with the performance of any governmental or
political function.
Give when 3b is alleged. See Faison v. State, 426 So. 2d 963 (Fla. 1983).
In order to be kidnapping, the [confinement] [abduction]
[imprisonment]
a. must not be slight, inconsequential, or merely incidental to
the (applicable felony);
b. must not be of the kind inherent in the nature of the
(applicable felony); and
-4-
c. must have some significance independent of the (applicable
felony) in that it makes the (applicable felony) substantially
easier of commission or substantially lessens the risk of
detection.
Definition. Give if applicable. Bishop v. State, 46 So. 3d 75 (Fla. 5th5th DCA
2010).
“Secretly” means the defendant intended to isolate or insulate the
victim(victim) from meaningful contact or meaningful communication with
the public.
Read only if confinement is alleged and victim is under 13 years of age.
Confinement of a child under the age of 13 is against the child’s will if
such confinement is without the consent of the child’s parent or legal
guardian.
If a violation of § 787.01(3), Fla. Stat., is charged, instruct as follows:
If you find the defendant guilty of Kidnapping, you must also determine
whether the State has proved the following aggravating circumstances beyond
a reasonable doubt:
1. At the time of the Kidnapping, (victim) was under 13 years of age;
and
2. In the course of committing the Kidnapping, (defendant)
committed [an Aggravated Child Abuse] [a Sexual Battery against
(victim)] [a Lewd or Lascivious Battery] [a Lewd or Lascivious
Molestation] [a Lewd or Lascivious Conduct] [a Lewd or
Lascivious Exhibition] [a Procuring a Child for Prostitution upon
(victim)] [a Forcing, Compelling, or Coercing Another to Become
a Prostitute upon (victim)] [an Exploitation of a Child upon
(victim)] [Human Trafficking for Commercial Sexual Activity in
which [a Child under the Age of 18] [a Mentally Defective Person]
[or] [a Mentally Incapacitated Person] was Involved]. Define
applicable felony unless included in other instructions.
-5-
Lesser Included Offenses
KIDNAPPING — 787.01
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
False imprisonment 787.02 9.2
Attempt 777.04(1) 5.1
Aggravated assault 784.021 8.2
Battery 784.03 8.3
Assault 784.011 8.1
Comments
The Kidnapping statute does not exempt a parent from criminal liability for
kidnapping his or her own child. See Davila v. State, 75 So. 3d 192 (Fla. 2011).
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
2014 [152 So. 3d 475], and 2015.
9.2 FALSE IMPRISONMENT
§ 787.02, Fla. Stat.
To prove the crime of False Imprisonment, the State must prove the
following two elements beyond a reasonable doubt:
1. (Defendant) [forcibly] [secretly] [by threat]
[confined]
[abducted]
[imprisoned]
[restrained]
(victim) against [his] [her] will.
2. (Defendant) had no lawful authority to do so.
Definition. Give if applicable. Bishop v. State, 46 So. 3d 75 (Fla. 5th5th DCA
2010).
“Secretly” means the defendant intended to isolate or insulate the
victim(victim) from meaningful contact or meaningful communication with
the public.
-6-
Read only if confinement is alleged and victim is under 13 years of age.
Confinement of a child under the age of 13 is against the child’s will if
such confinement is without the consent of the child’s parent or legal
guardian.
If a violation of § 787.02(3), Fla. Stat., is charged, instruct as follows:
If you find the defendant guilty of False Imprisonment, you must also
determine whether the State has proved the following aggravating
circumstances beyond a reasonable doubt:
1. At the time of the False Imprisonment, (victim) was under 13
years of age;
and
2. In the course of committing the False Imprisonment, (defendant)
committed [an Aggravated Child Abuse] [a Sexual Battery against
(victim)] [a Lewd or Lascivious Battery] [a Lewd or Lascivious
Molestation] [a Lewd or Lascivious Conduct] [a Lewd or
Lascivious Exhibition] [a Procuring a Child for Prostitution upon
(victim)] [a Forcing, Compelling, or Coercing Another to Become
a Prostitute upon (victim)] [an Exploitation of a Child upon
(victim)] [Human Trafficking for Commercial Sexual Activity in
which [a Child under the Age of 18] [a Mentally Defective Person]
[or] [a Mentally Incapacitated Person] was Involved]. Define
applicable felony unless included in other instructions.
-7-
Lesser Included Offenses
FALSE IMPRISONMENT — 787.02
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Battery 784.03 8.3
Assault 784.011 8.1
Comments
The Faison test for determining whether a particular confinement or
movement during the commission of another crime constitutes kidnapping, does
not apply to false imprisonment. Sanders v. State, 905 So. 2d 271 (Fla. 2d DCA
2005).
This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d
985], 1998 [723 So. 2d 123], 2014 [152 So. 3d 475], and 2015.
-8-