In Re: Standard Jury Instructions in Criminal Cases-Report 2018-06. , 260 So. 3d 941 ( 2018 )

Supreme Court of Florida
____________
No. SC18-1295
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2018-06.
December 20, 2018
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 amendments to four existing standard criminal jury
instructions: 15.1 (Robbery); 15.2 (Carjacking); 15.3 (Home-Invasion Robbery);
and 26.9 (Money Laundering). The proposals were published by the Committee in
The Florida Bar News; one comment was received from the Florida Public
Defender Association (FPDA) concerning the proposed amendments to
instructions 15.1, 15.2, and 15.3. The Committee made one of the changes
proposed by the FPDA prior to filing its report with the Court, but declined to
make the other proposed change. The proposals were not published by the Court
after having been filed by the Committee.
Having considered the Committee’s report and the FPDA comment, we
amend the standard jury instructions as proposed by the Committee, with one
technical correction to a comment, and authorize them for publication and use. We
discuss the more significant amendments below.
First, nonsubstantive revisions are made to several of the elements in
instructions 15.1, 15.2, and 15.3 to improve readability or better track statutory
language for the offenses covered by those instructions. Additionally, instructions
15.1, 15.2, and 15.3 are amended to replace “the” before “victim” with “that” or
“a” to replace “victim” with the alleged victim’s name throughout the instructions
to avoid the trial court’s accidentally referring to the alleged victim as a “victim.”
Statutory citations are also added above various definitions and paragraphs
throughout these three instructions. Further, a bracketed sentence is added to the
“Force” section of these instructions reading: “The law does not require the force,
violence, assault, or putting in fear to be exerted against the victim from whom the
property was taken if the force, violence, assault, or putting in fear was exerted
against another in the course of the taking.” A citation to Thomas v. State, 36 So.
3d 853 (Fla. 3d DCA 2010), is added above that paragraph in each of those three
instructions.
-2-
Instructions 15.1, 15.2, and 15.3 are also amended to add a definition of
“great bodily harm” stating that “ ‘Great bodily harm’ means great as distinguished
from slight, trivial, minor, or moderate harm, and as such does not include mere
bruises.” A citation to Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016), is
added above that definition in each of those instructions. New paragraphs are
added to the comments section of instructions 15.1, 15.2, and 15.3, and an existing
paragraph in the comments section of each of those instructions is revised.
However, we 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.
Next, the crime of resisting a merchant is added as a category-two lesser-
included offense for carjacking in instruction 15.2.
With regard to instruction 26.9, several of the elements of the crime money
laundering are revised to better track statutory language governing that offense.
Additionally, a last element is added reading: “The money or property involved in
the financial transaction exceeded $300 in any 12-month period.” This amendment
is made to address language found in section 896.101(5), Florida Statutes (2018).
Further, a paragraph is added to the instruction providing: “A[n] (name of the
specified unlawful activity in § 895.02(8)(a)(1.-50. alleged) consists of (give
elements of the specified unlawful activity alleged). (If applicable, also explain
-3-
attempt, conspiracy, solicitation, coercion, and/or intimidation to commit the
specified unlawful activity.)”
Next, the phrase “virtual currency” is added to the definition of “monetary
instruments” in instruction 26.9 to track recent statutory amendments, see ch.
2017-155, §12, at 5, Laws of Fla., and a definition of “virtual currency” based on
section 896.101(2)(j), Florida Statutes (2018), is added to the instruction. A lesser-
included offense table is added to the instruction and contains second- and third-
degree money laundering as category-one lesser-included offenses for first-degree
money laundering. Last, a paragraph is added to the instruction directing the jury,
if it found the defendant guilty of money laundering, to determine whether the
transaction involved more than $300 but less than $20,000, $20,000 or more but
less than $100,000, or $100,000 or more during any 12-month period, to determine
the felony degree of the offense.
The amended criminal jury instructions, as set forth in the appendix to this
opinion, are hereby authorized for publication and use. 1 New language is indicated
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.
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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. The instructions as set forth in the appendix shall
become effective when this opinion becomes final.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
Original Proceedings – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
15.1 ROBBERY
§ 812.13, Fla. Stat.
To prove the crime of Robbery, the State must prove the following four
elements beyond a reasonable doubt:
1. (Defendant) took [the] [a] [an] (money or property described in
charge) from the person or custody of (person alleged).
2. Force, violence, assault, or putting in fear was used in the course
of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently or temporarily
[deprive (victim) of [his] [her] right to the property or any benefit
from it] [appropriate the property of (victim) to [his] [her] own
use or to the use of any person not entitled to it].
Definitions.
Assault. § 784.011, Fla. Stat. Give if applicable.
An “assault” is an intentional and unlawful threat, either by word or
act, to do violence to a victim, when it appears the person making the threat
has the ability to carry out the threat, and the act creates in the mind of the
that victim a well-founded fear that violence is about to take place.
Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5thth
DCA 1997).
If the circumstances were such as to ordinarily induce fear in the mind
of a reasonable person, then thea victim may be found to have been in fear,
and actual fear on the part of thea victim need not be shown.
In the course of the taking. § 812.13(3)(b), Fla. Stat.
“In the course of the taking” means that the act occurred prior to,
contemporaneous with, or subsequent to the taking of the property and that
the act and the taking of the property constitute a continuous series of acts or
events.
6
Afterthought. Give only if applicable. DeJesus v. State, 98 So. 3d 105 (Fla.
2d DCA 2012).
If you find that the taking of property occurred as an afterthought to
the use of force or violence [or the threat of force or violence] against the
victim(victim), the taking does not constitute rRobbery, but may still
constitute tTheft.
Title to property. Give if applicable.
In order for a taking of property to be rRobbery, it is not necessary that
the person robbed be the actual owner of the property. It is sufficient if the
victimperson has the custody of the property at the time of the offense.
Force. Give bracketed language only if applicable. Thomas v. State, 36 So.
3d 853 (Fla. 3d DCA 2010).
The taking must be by the use of force or violence or by assault so as to
overcome the resistance of the victima person, or by putting the victima
person in fear so that the victimhe or she does not resist. [The law does not
require the force, violence, assault, or putting in fear to be exerted against the
victim from whom the property was taken if the force, violence, assault, or
putting in fear was exerted against another in the course of the taking.] The
law does not require that thea victim of rRobbery resist to any particular
extent or that thea victim offer any actual physical resistance if the
circumstances are such that thea victim is placed in fear of death or great
bodily harm if he or she does resist. But unless prevented by fear, there must
be some resistance to make the taking one done by force or violence.
Victim unconscious. Give only if applicable.
It is also rRobbery if a person, with intent to take the property from a
victim, administers any substance to another so that the victim so that [he]
[she] becomes unconscious and then takes the property from the person or
custody of thethat victim.
Taking. Give if applicable.
In order for a taking by force, violence, or putting in fear to be
rRobbery, it is not necessary that the taking be from the person of thea victim.
It is sufficient if the property taken is under the actual controlcustody of thea
victim so that it cannot be taken without the use of force, violence, or
intimidation directed against thea victim.
Enhanced penalty. Give only if applicable. § 812.13(3)(a), Fla. Stat.
7
If you find the defendant guilty of the crime of rRobbery, you must
further determine beyond a reasonable doubt if “in the course of committing
the robbery” the defendant carried some kind of weapon. An act is “in the
course of committing the robbery” if it occurs in an attempt to commit
robbery or in flight after the attempt or commission.
With a firearm. § 812.13(2)(a), Fla. Stat.
If you find that the defendant carried a firearm in the course of
committing the rRobbery, you should find [him] [her] guilty of rRobbery with
a firearm.
A “firearm” means 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;] [any machine gun].
[The term “firearm” does not include an antique firearm unless the antique
firearm is used in the commission of a crime. An antique firearm is (insert
definition in § 790.001(1), Fla. Stat.)] [A destructive device is (insert definition in
§ 790.001(4), Fla. Stat.)]
With a deadly weapon. § 812.13(2)(a), Fla. Stat.
If you find that the defendant carried a (deadly weapon described in
charge) in the course of committing the rRobbery and that the (deadly weapon
described in charge) was a deadly weapon, you should find [him] [her] guilty of
rRobbery with a deadly weapon.
A weapon is a “deadly weapon” if it is used or threatened to be used in a
way likely to produce death or great bodily harm.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
With other weapon. § 812.13(2)(b), Fla. Stat.
If you find that the defendant carried a weapon that was not a firearm
or a deadly weapon in the course of committing the rRobbery, you should find
[him] [her] guilty of rRobbery with a weapon.
A “weapon” is defined to mean any object that could be used to cause
death or inflict serious bodily harm.
8
With no firearm or weapon. § 812.13(2)(c), Fla. Stat.
If you find that the defendant carried no firearm or weapon in the
course of committing the rRobbery, but did commit the rRobbery, you should
find [him] [her] guilty only of rRobbery.
If applicable, see Instruction 5.1 for “attempt”.
9
Lesser Included Offenses
*ROBBERY WITH A FIREARM OR DEADLY WEAPON —
812.13(2)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Robbery with a 812.13(2)(b) 15.1
weapon
Robbery 812.13(2)(c) 15.1
Petit theft – second 812.014(3)(a) 14.1
degree
Assault (if assault was 784.011 8.1
charged)
Grand theft – first 812.014(2)(a) 14.1
degree
Display of firearm 790.07(4) 10.4
Aggravated Battery 784.045 8.4
Grand theft – second 812.014(2)( b) 14.1
degree
Robbery by sudden 812.131(2)(a) 15.4
snatching with a
firearm or deadly
weapon
Display of firearm 790.07(2) 10.3
Aggravated Assault 784.021 8.2
Felony Battery 784.041 8.5
Robbery by Sudden 812.131(2)(b) 15.4
Snatching
Grand theft – third 812.014(2)(c) 14.1
degree
Grand theft – third 812.014(2)(d) 14.1
degree
Display of firearm 790.07(1) 10.3
Felony Petit Theft 812.014(3)(c) 14.1
Petit theft – first 812.014(2)(e) 14.1
degree
Petit theft – first 812.014(3)(b) 14.1
degree
Battery 784.03 8.3
Resisting a Merchant 812.015(6) 14.4
10
*ROBBERY WITH A WEAPON — 812.13(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Robbery 812.13(2)(c) 15.1
Petit theft – second 812.014(3)(a) 14.1
degree
Assault (if assault was 784.011 8.1
charged)
Grand theft – first 812.014(2)(a) 14.1
degree
Display of a weapon 790.07(4) 10.4
Attempt 777.04(1) 5.1
Aggravated Battery 784.045 8.4
Grand theft – second 812.014(2)(b) 14.1
degree
Robbery by sudden 812.131(2)(a) 15.4
snatching with a
firearm or deadly
weapon
Display of firearm 790.07(2) 10.3
Aggravated Assault 784.021 8.2
Felony battery 784.041 8.5
Robbery by sudden 812.131(2)(b) 15.4
snatching
Grand theft – third 812.014(2)(c) 14.1
degree
Grand theft – third 812.014(2)(d) 14.1
degree
Display of firearm 790.07(1) 10.3
Felony petit theft 812.014(3)(c) 14.1
Petit theft – first 812.014(2)(e) 14.1
degree
Petit theft – first 812.014(3)(b) 14.1
degree
Battery 784.03 8.3
Resisting a Merchant 812.015(6) 14.4
11
ROBBERY — 812.13(2)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft – second 812.014(3)(a) 14.1
degree
Assault (if assault was 784.011 8.1
charged)
Grand theft – second 812.014(2)(b) 14.1
degree
Robbery By Sudden 812.131(2)(a) 15.4
Snatching with a
firearm or deadly
weapon
Display of firearm 790.07(2) 10.3
Aggravated Assault 784.021 8.2
Felony Battery 784.041 8.5
Robbery by sudden 812.131(2)(b) 15.4
snatching
Grand theft – third 812.014(2)(c) 14.1
degree
Grand theft – third 812.014(2)(d) 14.1
degree
Display of firearm 790.07(1) 10.3
Felony petit theft 812.014(3)(c) 14.1
Petit theft – first 812.014(2)(e) 14.1
degree
Petit theft – first 812.014(3)(b) 14.1
degree
Battery 784.03 8.3
Resisting a Merchant 812.015(6) 14.4
Comments
If applicable, see Instruction 5.1 for “attempt.”
*The felony degree of a Robbery gets bumped up if a defendant carried a
firearm or a deadly weapon or a weapon. In Sanders v. State, 944 So. 2d 203, 207
n.3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices
expressed a preference to have findings for carrying a firearm or a deadly weapon
12
or a weapon made in a separate interrogatory rather than as part of lesser-included
offenses.
For the crime of rRobbery, according the First and Fifth DCAs, upon
request, the judge must instruct that the a jury can convict a defendant of two
lesser-included offenses such as 1) theft and assault or 2) theft and resisting a
merchant in appropriate cases. SeeSpencer v. State, 71 So. 3d 901 (Fla. 1stst DCA
2011), and Stuckey v. State, 972 So. 2d 918 (Fla. 5thth DCA 2007). See also Gian-
Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA 2005)(holding that a defendant is
entitled to have a jury consider convicting of the two separate component offenses
of a compound offense). However, according to the Third DCA, the jury should be
given the option of finding multiple lesser-included offenses only if there is
evidence that the force, violence, assault or putting in fear was not used in the
course of the taking. Gordon v. State, 219 So. 3d 189 (Fla. 3rd DCA 2017).
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1989 [543 So.2d 1205], 1995 [665 So. 2d 212], 2008 [982 So. 2d 1160], and 2013
[122 So. 3d 263], and 2018.
15.2 CARJACKING
§ 812.133, Fla. Stat.
To prove the crime of Carjacking, the State must prove the following
three elements beyond a reasonable doubt:
1. (Defendant) took thea motor vehicle from the person or custody of
(victimperson alleged).
2. Force, violence, assault, or putting in fear was used in the course
of the taking.
3. The taking was with the intent to temporarily or permanently
[deprive (victim) of [his] [her] right to the motor vehicle or any
benefit from it] [appropriate the motor vehicle of (victim) to [his]
[her] own use or to the use of any person not entitled to it].
Definitions.
Medrano v. State, 199 So. 3d 413 (Fla. 4th DCA 2016). § 320.01, Fla. Stat.
13
“Motor vehicle” means an automobile, motorcycle, truck, trailer,
semitrailer, truck tractor and semitrailer combination, or any other vehicle
operated on the roads of this state, used to transport persons or property, and
propelled by power other than muscular power, but the term does not include
traction engines, road rollers, personal delivery devices, special mobile
equipment, vehicles that run only upon a track, bicycles, swamp buggies, or
mopeds.
Assault. § 784.011 Fla. Stat. Give if applicable.
An “assault” is defined as an intentional and unlawful threat, either by
word or act, to do violence to a victim, when it appears the person making the
threat has the ability to carry out the threat, and the act creates in the mind of
thethat victim a well-founded fear that violence is about to take place.
Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5thth
DCA 1997).
If the circumstances were such as to ordinarily induce fear in the mind
of a reasonable person, then thea victim may be found to have been in fear,
and actual fear on the part of thea victim need not be shown.
In the course of the taking. § 812.133(3)(b), Fla. Stat.
“In the course of the taking” means that the act occurred before,
during, or after the taking of the motor vehicle and that the act and the taking
of the motor vehicle constitute a continuous series of acts or events.
Afterthought. Give only if applicable. DeJesus v. State, 98 So. 3d 105 (Fla.
2d DCA 2012).
If you find that the taking of the motor vehicle occurred as an
afterthought to the use of force or violence [or the threat of force or violence]
against (victim), the taking does not constitute robberyCarjacking, but may
still constitute gGrand tTheft mMotor vVehicle.
Title to motor vehicle. Give if applicable.
In order for a taking of the motor vehicle to be cCarjacking, it is not
necessary that the victimperson carjacked be the actual owner of the motor
vehicle. It is sufficient if the victimperson has the custody of the motor vehicle
at the time of the offense.
Force. Give bracketed language only if applicable. Thomas v. State, 36 So.
3d 853 (Fla. 3d DCA 2010).
14
The taking must be by the use of force or violence or by assault so as to
overcome the resistance of the victima person, or by putting the victima
person in fear so that the victimhe or she does not resist. [The law does not
require the force, violence, assault, or putting in fear to be exerted against the
victim from whom the motor vehicle was taken if the force, violence, assault,
or putting in fear was exerted against another in the course of the taking.]The
law does not require that thea victim of cCarjacking resist to any particular
extent or that thea victim offer any actual physical resistance if the
circumstances are such that thea victim is placed in fear of death or great
bodily harm if he or she does resist. But unless prevented by fear, there must
be some resistance to make the taking one done by force or violence.
Victim unconscious. Give only if applicable.
It is also cCarjacking if a person, with intent to take the motor vehicle
from a victim, administers any substance to thethat victim so that [he] [she]
becomes unconscious and then takes the motor vehicle from the person or
custody of thethat victim.
Taking. Give if applicable.
In order for a taking by force, violence, or putting in fear to be
Carjacking, it is not necessary that the taking be from the person of a victim.
It is sufficient if the motor vehicle taken is under the custody of a victim so
that it cannot be taken without the use of force, violence, or intimidation
directed against a victim.
Enhanced penalty. Give only if applicable. §§ 812.133(2)(a) and
812.133(3)(a) Fla. Stats.
If you find the defendant guilty of the crime of cCarjacking, you must
further determine beyond a reasonable doubt if “in the course of committing
the cCarjacking” the defendant carried some kind ofa firearm or other deadly
weapon. An act is “in the course of committing the cCarjacking” if it occurs in
an attempt to commit cCarjacking or in flight after the attempt or
commission.
With a firearm or deadly weapon. § 812.133(2)(a), Fla. Stat.
If you find that the defendant carried a firearm or other deadly weapon
in the course of committing the cCarjacking, you should find [him] [her]
guilty of cCarjacking with a firearm or deadly weapon.
A “firearm” means any weapon [including a starter gun] which will, is
15
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;] [any machine gun].
[The term “firearm” does not include an antique firearm unless the antique
firearm is used in the commission of a crime. An antique firearm is (insert
definition in § 790.001(1), Fla. Stat.)] [A destructive device is (insert definition in
§ 790.001(4), Fla. Stat.)]
A “weapon” is defined to mean any object that could be used to cause
death or inflict serious bodily harm.
A weapon is a “deadly weapon” if it is used or threatened to be used in a
way likely to produce death or great bodily harm.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
With no firearm or weapon. § 812.133(2)(b) Fla. Stat.
If you find that the defendant carried no firearm or deadly weapon in
the course of committing the cCarjacking, but did commit the cCarjacking,
you should find [him] [her] guilty only of cCarjacking.
The only enhancement under the statute is for carrying a firearm or other
deadly weapon, not for carrying a nondeadly weapon as in the robbery statute.
If applicable, see Instruction 5.1 for “attempt.”
16
Lesser Included Offenses
*CARJACKING — 812.133
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Robbery 812.13(2)(c) 15.1
Grand theft – motor 812.014(2)(c)6 14.1
vehicle
Assault (if assault was 784.011 8.2
charged)
Aggravated Battery 784.045 8.4
Attempted Carjacking 777.04(1) 5.1
Aggravated Assault 784.021 8.2
Felony Battery 784.041 8.5
Battery 784.03 8.3
Resisting a Merchant 812.015(6) 14.4
Comments
*The only increased penalty under the Carjacking statute is for carrying a
firearm or other deadly weapon, not for carrying a weapon as in the Robbery
statute. In Sanders v. State, 944 So. 2d 203, 207 n.3 (Fla. 2006) (Pariente, J.,
concurring), some Florida Supreme Court justices expressed a preference to have
findings for carrying a firearm or a deadly weapon made in a separate interrogatory
rather than as part of lesser-included offenses.
If applicable, see Instruction 5.1 for “attempt.”
For the crime of cCarjacking, it is likely that athe First, Fourth, and Fifth
DCAs would hold that the judge must, upon request, instruct that the jury can
convict a defendant of two lesser-included offenses such as grand theft auto and
assault. SeeSpencer v. State, 71 So. 3d 901 (Fla. 1stst DCA 2011); Stuckey v. State,
972 So. 2d 918 (Fla. 5th DCA 2007); Gian-Grasso v. State, 899 So. 2d 392 (Fla.
4th DCA 2005) (holding that a defendant is entitled to have a jury consider
convicting of the two separate component offenses of a compound offense).
However, according to the Third DCA, the jury should be given the option of
finding multiple lesser-included offenses only if there is evidence that the force,
violence, assault or putting in fear was not used in the course of the taking. Gordon
v. State, 219 So. 3d 189 (Fla. 3rd DCA 2017).
17
This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008
[982 So. 2d 1160], and 2013 [122 So. 3d 263], and 2018.
15.3 HOME-INVASION ROBBERY
§ 812.135, Fla. Stat.
To prove the crime of Home-Invasion Robbery, the State must prove
the following three elements beyond a reasonable doubt:
1. (Defendant) entered the dwelling of (victim).
2. At the time (defendant) entered the dwelling, [he] [she] intended to
commit robbery.
3. While inside the dwelling, (defendant) did commit robbery.
A robbery consists of the following:
1. (Defendant) took money or property[the] [a] [an] (money or
property described in charge) from the person or custody of
another(person alleged).
2. Force, violence, assault, or putting in fear was used in the course
of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently or temporarily
[deprive another(victim) of [his] [her] right to the property or any
benefit from it] [appropriate the property of another(victim) to
[his] [her] own use or to the use of any person not entitled to it].
Definitions.
Assault. § 784.011, Fla. Stat. Give if applicable.
An “assault” is defined as an intentional and unlawful threat, either by
word or act, to do violence to a victim, when it appears the person making the
threat has the ability to carry out the threat, and the act creates in the mind of
thethat victim a well-founded fear that violence is about to take place.
18
Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5thth
DCA 1997).
If the circumstances were such as to ordinarily induce fear in the mind
of a reasonable person, then thea victim may be found to have been in fear,
and actual fear on the part of thea victim need not be shown.
In the course of the taking. § 812.13(3)(b), Fla. Stat.
“In the course of the taking” means that the act occurred prior to,
contemporaneous with, or subsequent to the taking of the property and that
the act and the taking of the property constitute a continuous series of acts or
events.
Afterthought. Give only if applicable. DeJesus v. State, 98 So. 3d 105 (Fla.
2d DCA 2012).
If you find that the taking of property occurred as an afterthought to
the use of force or violence [or the threat of force or violence] against (victim),
the taking does not constitute rRobbery but may still constitute tTheft.
Title to property. Give if applicable.
In order for a taking of property to be rRobbery, it is not necessary that
the person robbed be the actual owner of the property. It is sufficient if the
victimperson has the custody of the property at the time of the offense.
Force. Give bracketed language only if applicable. Thomas v. State, 36 So.
3d 853 (Fla. 3d DCA 2010).
The taking must be by the use of force or violence or by assault so as to
overcome the resistance of the victima person, or by putting the victima
person in fear so that the victimhe or she does not resist. [The law does not
require the force, violence, assault, or putting in fear to be exerted against the
victim from whom the property was taken if the force, violence, assault, or
putting in fear was exerted against another in the course of the taking.] The
law does not require that thea victim of rRobbery resist to any particular
extent or that thea victim offer any actual physical resistance if the
circumstances are such that thea victim is placed in fear of death or great
bodily harm if he or she does resist. But unless prevented by fear, there must
be some resistance to make the taking one done by force or violence.
Victim unconscious. Give only if applicable.
19
It is also rRobbery if a person, with intent to take the property from a
victim, administers any substance to another so that the victim so that [he]
[she] becomes unconscious and then takes the property from the person or
custody of thethat victim.
Taking. Give if applicable.
In order for a taking by force, violence, or putting in fear to be robbery,
it is not necessary that the taking be from the person of thea victim. It is
sufficient if the property taken is under the actual control of thea victim so
that it cannot be taken without the use of force, violence, or intimidation
directed against thea victim.
Definition. Jacobs v. State, 41 So. 3d 1004 (Fla. 1stst DCA 2010); DuBose v.
State, 210 So. 3d 641 (Fla. 2017).
“Dwelling” means a building [or conveyance] of any kind, including any
attached porch, whether such building [or conveyance] is temporary or
permanent, mobile or immobile, which has a roof over it and is designed to be
occupied by people lodging therein at night, together with the enclosed space
of ground and outbuildings immediately surrounding it. [The enclosure need
not be continuous and may have an ungated opening for entering and exiting.]
Enhanced penalty. Give if applicable.
If you find the defendant guilty of the crime of hHome-iInvasion
rRobbery, you must further determine beyond a reasonable doubt if “in the
course of committing the hHome-iInvasion rRobbery,” the defendant carried
some kind of weapon.
With a firearm. § 812.135(2)(a), Fla. Stat.
If you find that the defendant carried a firearm in the course of
committing the hHome-iInvasion rRobbery, you should find [him] [her] guilty
of hHome-iInvasion rRobbery with a firearm.
A “firearm” means 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;] [any machine gun].
[The term “firearm” does not include an antique firearm unless the antique
firearm is used in the commission of a crime. An antique firearm is (insert
definition in § 790.001(1), Fla. Stat.)] [A destructive device is (insert definition in
§ 790.001(4), Fla. Stat.)]
20
With a deadly weapon. § 812.135(2)(a), Fla. Stat.
If you find that the defendant carried a (deadly weapon described in
charge) in the course of committing the hHome-iInvasion rRobbery and that
the (deadly weapon described in charge) was a deadly weapon, you should find
[him] [her] guilty of hHome-iInvasion rRobbery with a deadly weapon.
A weapon is a “deadly weapon” if it is used or threatened to be used in a
way likely to produce death or great bodily harm.
Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
“Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.
With other weapon. § 812.135(2)(b), Fla. Stat.
If you find that the defendant carried a weapon that was not a firearm
or a deadly weapon in the course of committing the hHome-iInvasion
rRobbery, you should find [him] [her] guilty of hHome-iInvasion rRobbery
with a weapon.
A “weapon” is defined to mean any object that could be used to cause
death or inflict serious bodily harm.
With no firearm or weapon. § 812.135(2)(c), Fla. Stat.
If you find that the defendant carried no firearm or weapon in the
course of committing the hHome-iInvasion rRobbery, but did commit the
hHome-iInvasion rRobbery, you should find [him] [her] guilty only of hHome-
iInvasion rRobbery.
If applicable, see Instruction 5.1 for “attempt”.
21
Lesser Included Offenses
*HOME INVASION ROBBERY — 812.135
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Burglary of a dwelling 810.02(3) 13.1
Robbery 812.13(2)(c) 15.1
Burglary of a Structure 810.02 13.1
Petit theft – second 812.014(3)(a) 14.1
degree
Assault 784.011 8.1
Grand theft – first 812.014(2)(a) 14.1
degree
Attempt 777.04(1) 5.1
Aggravated battery 784.045 8.4
Grand theft – second 812.014(2)(b) 14.1
degree
Aggravated assault 784.021 8.2
Felony battery 784.041 8.5
Grand theft – third 812.014(2)(c) 14.1
degree
Grand theft – third 812.014(2)(d) 14.1
degree
Felony petit theft 812.014(3)(c) 14.1
Petit theft – first 812.014(2)(e) 14.1
degree
Petit theft – first 812.014(3)(b) 14.1
degree
Battery 784.03 8.3
Trespass 810.08 13.3
Comments
If applicable, see Instruction 5.1 for “attempt.”
*The felony degree of a Home-Invasion Robbery gets bumped up if a
defendant carried a firearm or a deadly weapon or a weapon. In Sanders v. State,
944 So. 2d 203, 207 n.3 (Fla. 2006) (Pariente, J., concurring), some Florida
Supreme Court justices expressed a preference to have findings for carrying a
22
firearm or a deadly weapon or a weapon made in a separate interrogatory rather
than as part of lesser-included offenses.
The Home-Invasion Robbery statute does not contain an explanation of “in
the course of committing the home-invasion robbery.” It is unclear whether the
courts would look to the robbery and carjacking statutes so that “in the course of
committing” would include an attempt to commit Home-Invasion Robbery or in
flight after the attempt or commission.
For the crime of hHome-iInvasion rRobbery, it is likely that athe First,
Fourth, and Fifth DCAs would hold that the judge must, upon request, instruct that
the jury can convict a defendant of two lesser-included offenses such as theft and
assault. SeeSpencer v. State, 71 So. 3d 901 (Fla. 1stst DCA 2011); Stuckey v. State,
972 So. 2d 918 (Fla. 5th DCA 2007); Gian-Grasso v. State, 899 So. 2d 392 (Fla.
4th DCA 2005) (holding that a defendant is entitled to have a jury consider
convicting of the two separate component offenses of a compound offense).
However, according to the Third DCA, the jury should be given the option of
finding multiple lesser-included offenses only if there is evidence that the force,
violence, assault or putting in fear was not used in the course of the taking. Gordon
v. State, 219 So. 3d 189 (Fla. 3rd DCA 2017).
This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008
[982 So. 2d 1160], and 2013 [122 So. 3d 263], and 2018.
26.9 MONEY LAUNDERING
§ 896.101(3)(a), (3)(b), or (3)(c), Fla. Stat.
Give if Fla. Stat. § 896.101(3)(a), Fla. Stat. is charged:
To prove the crime of Money Laundering, the State must prove the
following fourfive elements beyond a reasonable doubt:
1. (Defendant) [conducted] [attempted to conduct] a financial transaction.
2. The money or property involved in the financial transaction
represented the proceeds of (describename of the specified unlawful
activity listed in Fla. Stat.§ 895.02(8)(a)1.–50. that is alleged in the charging
document).
23
3. (Defendant) knew the money or property involved in the financial
transaction represented the proceeds of some form of unlawful activity.
Give 4a and/or 4b as applicable.
4. a. (Defendant) did so with the intent to promote the carrying on of
(describename of the specified unlawful activity listed in Fla. Stat.§
895.02(8)(a)1.–50. that is alleged in the charging document).
b. (Defendant) knew that the transaction was designed in whole or
in part
1. to [conceal] [disguise] the [nature] [location] [source] [ownership]
[control] of the proceeds of (describename of the specified unlawful
activity listed in Fla. Stat.§ 895.02(8)(a)1.–50. that is alleged in the
charging document);
[or]
2. to avoid a [transaction reporting requirement] [money
transmitters’ registration requirement] under state law.
5. The money or property involved in the financial transaction exceeded
$300 in any 12-month period.
Give if Fla. Stat. § 896.101(3)(b), Fla. Stat. is charged:
To prove the crime of Money Laundering, the State must prove the
following twothree elements beyond a reasonable doubt:
1. (Defendant) [transported] [attempted to transport] [a monetary
instrument] [funds].
Give 2a and/or 2b as applicable.
2. a. (Defendant) did so with the intent to promote the carrying on of
(describename of the specified unlawful activity listed in Fla. Stat.§
895.02(8)(a)1.–50. that is alleged in the charging document);
[or]
b. (Defendant) knew that the [monetary instrument] [funds] involved
in the transportation represented the proceeds of some form of
24
unlawful activity and also knew that such transportation was
designed in whole or in part
1. [to conceal] [to disguise] the [nature] [location] [source]
[ownership] [control] of the proceeds of (describename of the
specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.–50. that
is alleged in the charging document);
[or]
2. to avoid a [transaction reporting requirement] [money
transmitters’ registration requirement] under state law.
3. The money or property involved in the financial transaction exceeded
$300 in any 12-month period.
Give if Fla. Stat. § 896.101(3)(c), Fla. Stat. is charged:
To prove the crime of Money Laundering, the State must prove the
following threefour elements beyond a reasonable doubt:
1. (Defendant) [conducted] [attempted to conduct] a financial
transaction.
2. The financial transaction involved [property] [proceeds] which [an
investigative or law enforcement officer] [someone acting under an
investigative or law enforcement officer’s direction] represented as
being [derived from] [used to conduct or facilitate] (describename of
the specified unlawful activity listed in Fla. Stat.§ 895.02(8)(a)1.–50. that
is alleged in the charging document).
3. (Defendant) did so with the intent to
Give 3a and/or 3b and/or 3c as applicable.
a. promote the carrying on of (describename of the specified unlawful
activity listed in Fla. Stat.§ 895.02(8)(a)1.–50. that is alleged in the
charging document);
[or]
25
b. [conceal] [disguise] the [nature] [location] [source] [ownership]
[control] of the [proceeds] [property believed to be the proceeds]
of (describename of the specified unlawful activity listed in Fla. Stat.§
895.02(8)(a)1.–50. that is alleged in the charging document);
[or]
c. avoid a transaction reporting requirement under state law.
4. The money or property involved in the financial transaction
exceeded $300 in any 12-month period.
Give in all cases.
A[n] (name of the specified unlawful activity in § 895.02(8)(a)1.–50.
alleged) consists of (give elements of the specified unlawful activity alleged). (If
applicable, also explain attempt, conspiracy, solicitation, coercion, and/or
intimidation to commit the specified unlawful activity.
Give if applicable. Fla. Stat. § 896.101(4), Fla. Stat.
It is not a defense to Money Laundering that:
(a) Any stratagem or deception, including the use of an undercover
operative or law enforcement officer, was employed.
(b) A facility or an opportunity to engage in conduct in violation of this
act was provided.
(c) A law enforcement officer, or person acting under direction of a law
enforcement officer, solicited a person predisposed to engage in
conduct in violation of any provision of this chapter to commit a
violation of this chapter in order to gain evidence against that
person, provided such solicitation would not induce an ordinary law-
abiding person to violate this law.
Note to Judge: This subsection does not preclude the defense of entrapment.
See jury instruction 3.6(j).
Definitions.
Fla. Stats. § 896.101(2)(a), § 896.101(2)(ge), Fla. Stat.
26
“Knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity” means that the
person knew the property involved in the transaction represented proceeds
from some form, though not necessarily which form, of activity that
constitutes a felony under state or federal law, regardless of whether such
activity is (describename the specified unlawful activity listed in Fla. Stat.§
895.02(8)(a)1.–50. that is alleged in the charging document). A “felony” is a
crime punishable by death or imprisonment in excess of one year. (Name of
crime) is a felony.
Fla. Stat. § 896.101(2)(ba), Fla. Stat.
“Conductsed” includes initiating, concluding, or participating in
initiating or concluding a transaction.
Fla. Stat. § 896.101(2)(ci), Fla. Stat.
“Transaction” means a purchase, sale, loan, pledge, gift, transfer,
delivery, or other disposition, and with respect to a financial institution
includes a deposit, withdrawal, transfer between accounts, exchange of
currency, loan, extension of credit, purchase or sale of any stock, bond,
certificate of deposit, or other monetary instrument, use of a safety deposit
box, or any other payment, transfer, or delivery by, through, or to a financial
institution, by whatever means effected.
Fla. Stat. § 896.101(2)(dc), Fla. Stat.
“Financial transaction” means a transaction involving the movement of
funds by wire or other means or involving one or more monetary instruments,
which in any way or degree affects commerce, or a transaction involving the
transfer of title to any real property, vehicle, vessel, or aircraft, or a
transaction involving the use of a financial institution which is engaged in, or
the activities of which affect, commerce in any way or degree.
Fla. Stat. § 896.101(2)(fb), Fla. Stat.
“Financial institution” means [an insured bank] [a commercial bank or
trust company] [a private banker] [an agency or branch of a foreign bank] [a
credit union] [a thrift institution] [a broker or dealer in securities or
commodities] [an investment banker or investment company] [a currency
exchange] [an operator of a credit card system] [an insurance company] [a
dealer in precious metals, stones, or jewels] [a pawnbroker] [a loan or finance
company] [a travel agency] [a telegraph company] [the United States Postal
27
Service] [(list one of the other institutions enumerated in 31 U.S.C. § 5312)], that
is located in Florida.
Fla. Stat. § 896.101(2)(ef), Fla. Stat.
“Monetary instruments” means coin or currency of the United States or
of any other country, virtual currency, travelers’ checks, personal checks,
bank checks, money orders, investment securities in bearer form or otherwise
in such form that title thereto passes upon delivery, and negotiable
instruments in bearer form or otherwise in such form that title thereto passes
upon delivery.
§ 896.101(2)(j), Fla. Stat.
“Virtual currency” means a medium of exchange in electronic or digital
format that is not a coin or currency of the United States or any other
country.
Fla. Stat. § 896.101(2)(hd), Fla. Stat.
“Knowing” means that a person knew; or, with respect to any
transaction or transportation involving more than $10,000 in U.S. currency or
foreign equivalent, should have known after reasonable inquiry, unless the
person has a duty to file a federal currency transaction report, IRS Form
8300, or a like report under state law and has complied with that reporting
requirement in accordance with law.
Fla. Stat. § 896.101(3)(d), Fla. Stat.
“Investigative or law enforcement officer” means any officer of the
State of Florida or political subdivision thereof, of the United States, or of any
other state or political subdivision thereof, who is empowered by law to
conduct, on behalf of the government, investigations of, or to make arrests for,
offenses enumerated in this subsection or similar federal offenses.
§ 896.101(5), Fla. Stat. Give as applicable
If you find the defendant guilty of Money Laundering, you must also
determine if the State has proven beyond a reasonable doubt whether:
a. the financial transaction involved more than $300 but less than
$20,000 during any 12-month period.
b. the financial transaction involved $20,000 or more but less than
$100,000 during any 12-month period.
28
c. the financial transaction involved $100,000 or more during any
12-month period.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
MONEY LAUNDERING ($100,000 OR GREATER IN ANY 12-
MONTH PERIOD) — 896.101(3) and 896.101(5)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Money Laundering 896.101(3) 26.9
($20,000 but less than and
$100,000 in any 12- 896.101(5)(b)
month period)
Money Laundering 896.101(3) 26.9
(more than $300 but and
less than $20,000 in 896.101(5)(a)
any 12-month period)
Comment
This instruction was adopted in 2013 [123 So. 3d 54] and amended in 2018.
29