In Re Standard Jury Instructions in Criminal Cases—Report No. 2016-08 , 211 So. 3d 995 ( 2017 )

Supreme Court of Florida
____________
No. SC16-1681
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2016-08.
[February 23, 2017]
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: 7.8 (Driving Under the Influence Manslaughter); 7.8(a) (Boating
Under the Influence Manslaughter); 9.1 (Kidnapping); 9.2 (False Imprisonment);
18.3 (False Information to Law Enforcement); 20.18(a) (Unlawful Possession of
the Personal Identification Information of Another Person); and 28.18 (Failure to
Obey the Lawful Order of a [Police] [Fire] [Traffic] Official). The Committee
published its proposals for comment in The Florida Bar News. No comments were
received by the Committee. The Court did not publish the proposals after they
were filed.
Having considered the Committee’s report, we authorize amended standard
jury instructions 7.8, 7.8(a), 9.1, 9.2, 18.3, and 28.18 for publication and use, with
the following modifications. In instructions 7.8 and 28.18, the statutory citations
to the definition of “vehicle” are revised to reference the correct statute.
We decline to authorize amended instruction 20.18(a) as proposed by the
Committee. The Committee proposes to simplify the explanations of actual
possession, constructive possession, mere proximity, joint possession, inferences
of possession, and exceptions to inferences of possession of personal identification
information in instruction 20.18(a) by replacing all of the explanations with what
the Committee considers a single, simpler explanation of “possession.” The
Committee expresses the belief that the existing explanations of the types of
possession and inferences of possession in the instruction are deficient and
confusing; however, the Court is unaware of any case law that has held the current
explanations of possession deficient. Deciding such substantive matters is
appropriate for this Court only within the context of an actual case or controversy.
See art. V, § 3(b), Fla. Const.; In re Std. Jury Instrs. in Crim. Cases—Report No.
2015-05, 195 So. 3d 1088, 1089 (Fla. 2016). We therefore decline to authorize
amended instruction 20.18(a) for publication and use.
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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
by underlining; 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, and
POLSTON, JJ., concur.
LAWSON, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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-
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; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider and Jett Conn, Staff Liaisons,
Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
7.8 DRIVING UNDER THE INFLUENCE MANSLAUGHTER
§§ 316.193(3)(a), (3)(b), and (3)(c)3., Fla. Stat.
To prove the crime of Driving under the Influence Manslaughter, the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) drove [or was in actual physical control of] a vehicle.
2. While driving [or in actual physical control of] the vehicle,
(defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical
substance] [a controlled substance] to the extent that [his]
[her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of
alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vehicle, (defendant) caused or
contributed to the cause of the death of [(victim)] [an unborn
child].
Give if §§ 316.193(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged.
If you find the defendant guilty of Driving under the Influence
Manslaughter, you must further determine whether the State proved beyond
a reasonable doubt that:
4. (Defendant), at the time of the crash,
a. knew or should have known that the crash occurred
and
b. failed to give information as required by law
and
c. failed to render aid as required by law
-5-
Florida law requires that the driver of any vehicle involved in a crash
resulting in injury to or death of any person, or damage to any vehicle or
other property which is driven or attended by any person, must supply [his]
[her] name, address, and the registration number of the vehicle [he] [she] is
driving to any person injured in the crash or to the driver or occupant of or
person attending any vehicle or other property damaged in the crash. Upon
request and if available, the driver shall also exhibit [his] [her] license or
permit to drive.
The driver shall give the same information and, upon request, exhibit
his or her license or permit, to any police officer who is at the scene of the
crash or who is investigating the crash.
The driver shall also render reasonable assistance to any person
injured in the crash, including carrying, or the making of arrangements for
the carrying, of such person to a physician, surgeon, or hospital for medical or
surgical treatment if it is apparent that treatment is necessary, or if such
carrying is requested by the injured person.
In the event none of the persons specified above are in condition to
receive the information to which they otherwise would be entitled, and no
police officer is present, the driver of a vehicle involved in the crash, after
trying to fulfill the requirements listed above as much as possible, shall
immediately report the crash to the nearest office of a duly authorized police
authority and supply the information specified above.
Give if applicable. § 316.193(4), Fla. Stat.(Offenses committed prior to
October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence
Manslaughter, you must also determine whether the State has proven beyond
a reasonable doubt whether:
a. the defendant had a [blood] [breath]-alcohol level of .15 or
higher while driving [or in actual physical control of] the
vehicle.
b. the defendant was accompanied in the vehicle by a person
under the age of 18 years at the time of the dDriving under
the iInfluence.
-6-
Definitions. Give as applicable.
§ 316.003(95), Fla. Stat.
“Vehicle” is every device in, upon, or by which any person or property
is or may be transported or drawn upon a highway, except devices used
exclusively upon stationary rails or tracks.
§ 316.1934(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, drive an automobile, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
“Impaired” means diminished in some material respect.
Give if applicable.
The option of “on a vehicle” pertains to vehicles such as motorcycles and
bicycles.
“Actual physical control of a vehicle” means the defendant must be
physically in [or on] the vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating the vehicle at the time.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
§ 877.111(1), Fla. Stat.
(____________) is a chemical substance under Florida law.
Chapter 893, Fla. Stat.
(___________) is a controlled substance under Florida law.
§ 775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any
stage of development, and who is carried in the womb.
Give if applicable. § 775.021(5)(b), Fla. Stat.
Driving Under the Influence Manslaughter does not require the State to
prove that the defendant knew or should have known that (victim) was
pregnant or that the defendant intended to cause the death of the unborn
child.
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When appropriate, give one or more of the following instructions on the
presumptions of impairment established by §§ 316.1934(2)(a), (2)(b), and (2)(c),
Fla. Stat.Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat.
1. If you find from the evidence that while driving [or in actual
physical control of] a motor vehicle, the defendant had a blood or
breath-alcohol level of .05 or less, you shall presume that the
defendant was not under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating
that the defendant was under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while driving [or in actual
physical control of] a motor vehicle, the defendant had a blood or
breath-alcohol level in excess of .05 but less than .08, that fact
does not give rise to any presumption that the defendant was or
was not under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. In such cases, you
may consider that evidence along with other evidence in
determining whether the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired.
3. If you find from the evidence that while driving or in actual
physical control of a motor vehicle, the defendant had a blood or
breath-alcohol level of .08 or more, that evidence would be
sufficient by itself to establish that the defendant was under the
influence of alcoholic beverages to the extent that [his] [her]
normal faculties were impaired. But this evidence may be
contradicted or rebutted by other evidence demonstrating that the
defendant was not under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant drove with an unlawful blood or breath-alcohol level, impairment
becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
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Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence
Manslaughter if at the time of the alleged offense, the vehicle was inoperable.
However, it is not a defense if the defendant was driving under the influence
before the vehicle became inoperable. Therefore, if you are not convinced
beyond a reasonable doubt that the vehicle was operable at the time of the
alleged offense, you should find the defendant not guilty. However, if you are
convinced that the vehicle was operable at the time of the alleged offense, then
you should find the defendant guilty, if all the other elements of the charge
have been proved beyond a reasonable doubt.
Lesser Included Offenses
DRIVING UNDER THE INFLUENCE MANSLAUGHTER — 316.193(3)(A),
(3)(B), AND (3)(C)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Driving under the 316.193(1) 28.1
Influence
Driving under the 316.193(3)(a), 28.3
influence causing (3)(b), and
serious bodily injury (3)(c)2.
Driving under the 316.193(3)(a), 28.1(a)
influence causing (3)(b), and
damage to person or (3)(c)1.
property
Comment
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1987 [508 So. 2d 1221], 1992 [603 So. 2d 1175], 1995 [665 So. 2d 212], 1998
[723 So. 2d 123], 2006 [946 So. 2d 1061], 2009 [6 So. 3d 574], and 2016 [190 So.
3d 1055], and 2017.
7.8(a) BOATING UNDER THE INFLUENCE MANSLAUGHTER
§§327.35(3)(a), (3)(b), and (3)(c)3., Fla. Stat.
To prove the crime of Boating under the Influence Manslaughter, the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) operated a vessel.
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2. While operating the vessel, (defendant)
Give 2a or 2b or both as applicable.
a. was under the influence of [alcoholic beverages] [a chemical
substance] [a controlled substance] to the extent that [his]
[her] normal faculties were impaired.
b. had a [blood] [breath]-alcohol level of .08 or more grams of
alcohol per [100 milliliters of blood] [210 liters of breath].
3. As a result of operating the vessel, (defendant) caused or
contributed to the cause of the death of [(victim)] [an unborn
child].
Give if §§ 327.35(3)(a), (3)(b), and (3)(c)3.b., Fla. Stat., is charged.
If you find the defendant guilty of Boating under the Influence
Manslaughter, you must further determine whether the State proved beyond
a reasonable doubt that:
4. (Defendant), at the time of the accident,
a. knew or should have known that the accident occurred
and
b. failed to give information as required by law
and
c. failed to render aid as required by law.
Florida law requires that the operator of a vessel involved in a collision,
accident, or other casualty, to render to other persons affected by the collision,
accident, or other casualty such assistance as is practicable and necessary in
order to save them from or minimize any danger caused by the collision,
accident, or other casualty, so far as [he] [she] can do so without serious
danger to the operators own vessel, crew, and passengers.
Florida law also requires the operator to give [his] [her] name, address,
and identification of [his] [her] vessel in writing to any person injured and to
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the owner of any property damaged in the collision, accident, or other
casualty.
In cases of collision, accident, or other casualty resulting in death or
medical treatment beyond immediate first aid, Florida law requires that the
operator, without delay and by the quickest means available, give notice of the
accident to one of the following agencies: the Division of Law Enforcement of
the Fish and Wildlife Conservation Commission; the sheriff of the county
within which the accident occurred; or the police chief of the municipality
within which the accident occurred.
Give if applicable. § 327.35(4), Fla. Stat.
If you find the defendant guilty of Boating under the Influence
Manslaughter, you must also determine whether the State has proven beyond
a reasonable doubt whether:
a. the defendant had a [blood] [breath]-alcohol level of .2015
or higher while operating the vessel.
b. the defendant was accompanied in the vessel by a person
under the age of 18 years at the time of the bBoating under
the iInfluence.
Definitions. Give as applicable.
State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
“Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.
§ 327.354(1), Fla. Stat.
“Normal faculties” include but are not limited to the ability to see, hear,
walk, talk, judge distances, operate a vessel, make judgments, act in
emergencies and, in general, to normally perform the many mental and
physical acts of our daily lives.
§ 327.02(30), Fla. Stat.
“Operate” means to be in charge of or in command of or in actual
physical control of a vessel upon the waters of this state, or to exercise control
over or to have responsibility for a vessels navigation or safety while the vessel
is underway upon the waters of this state, or to control or steer a vessel being
towed by another vessel upon the waters of the state.
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Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001).
Impaired means diminished in some material respect.
§ 322.01(2), Fla. Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
(___________) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
(___________) is a chemical substance under Florida law. § 877.111(1),
Fla. Stat.
§ 775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any
stage of development, and who is carried in the womb.
Give if applicable. § 775.021(5)(b), Fla. Stat.
Boating Under the Influence Manslaughter does not require the State to
prove that the defendant knew or should have known that (victim) was
pregnant or that the defendant intended to cause the death of the unborn
child.
When appropriate, give one or more of the following instructions on the
presumptions of impairment established by §§ 327.354(2)(a), (2)(b), and (2)(c),
Fla. Stat.Give if appropriate. § 327.354(2)(a) and (2)(b), Fla. Stat.
1. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood]
[breath]- alcohol level of .05 or less, you shall presume that the
defendant was not under the influence of alcoholic beverages to
the extent that [his] [her] normal faculties were impaired; but this
presumption may be overcome by other evidence demonstrating
that the defendant was under the influence of alcoholic beverages
to the extent that [his] [her] normal faculties were impaired.
2. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood]
[breath]- alcohol level in excess of .05 but less than .08, that fact
does not give rise to any presumption that the defendant was or
was not under the influence of alcoholic beverages to the extent
that [his] [her] normal faculties were impaired. In such cases, you
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may consider that evidence along with other evidence in
determining whether the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired.
3. If you find from the evidence that while operating or in actual
physical control of the vessel, the defendant had a [blood] [breath]
- alcohol level of .08 or more, that evidence would be sufficient by
itself to establish that the defendant was under the influence of
alcoholic beverages to the extent that [his] [her] normal faculties
were impaired. But this evidence may be contradicted or
rebutted by other evidence demonstrating that the defendant was
not under the influence of alcoholic beverages to the extent that
[his] [her] normal faculties were impaired.
It is not necessary to instruct on the “prima facie evidence of impairment”
in § 327.354(2)(c), Fla. Stat., if the State charged the defendant with boating with
a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that
the defendant operated a vessel with an unlawful blood or breath-alcohol level,
impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).
Defense of inoperability; give if applicable.
It is a defense to the charge of Boating under the Influence
Manslaughter if the vessel was inoperable at the time of the alleged offense,
unless the defendant was controlling or steering the vessel while it was being
towed by another vessel upon the waters of the state. However, it is not a
defense if the defendant was boating under the influence before the vessel
became inoperable.
Lesser Included Offenses
BOATING UNDER THE INFLUENCE MANSLAUGHTER — 327.35(3)(A),
(3)(B), AND (3)(C)3.
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Boating under the 327.35 28.14
influence
Boating under the 327.35(3)(a), 28.17
influence causing (3)(b), and
serious bodily injury (3)(c)2.
Boating under the 327.35(3)(a), 28.15
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influence causing (3)(b), and
damage to person or (3)(c)1.
property
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2016
[190 So. 3d 1055], and 2017.
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 kKidnapping, the [confinement] [abduction]
[imprisonment]
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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
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. 5th DCA
2010).
“Secretly” means the defendant intended to isolate or insulate (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.
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If the State has charged and is seeking the adult-on-minor sex offense
multiplier in § 921.0024(1)(b), Fla. Stat., instruct as follows. Alleyne v. United
States, 133 S. Ct. 2151 (2013).
If you find the defendant guilty of Kidnapping, you must also determine
whether the State has proved the following four elements beyond a reasonable
doubt:
1. At the time of the Kidnapping, (defendant) was 18 years of age or
older.
2. At the time of the Kidnapping, (victim) was younger than 18 years
of age.
3. The Kidnapping was committed on or after October 1, 2014.
4. In the course of committing the Kidnapping, (defendant)
committed [Sexual Battery] [Lewd or Lascivious Battery] [Lewd
or Lascivious Molestation] [Lewd or Lascivious Conduct] [Lewd
or Lascivious Exhibition] [Lewd or Lascivious Exhibition Over a
Computer Service] against (same victim as in element #2).
Define applicable felony unless included in other instructions.
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 his own child. See Davila v. State, 75 So. 3d 192 (Fla. 2011).
*If the State alleged the life felony of Kidnapping with aggravating
circumstances in § 787.01(3), Fla. Stat., then those aggravating circumstances
would be lesser-included crimes.
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*If the State charged the defendant in a way to score the adult-on-minor sex
offense multiplier in § 921.0024(1)(b), Fla. Stat., then those sex crimes would be
lesser-included crimes.
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
2014 [152 So. 3d 475], and 2015 [167 So. 3d 443], and 2017.
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. 5th DCA
2010).
“Secretly” means the defendant intended to isolate or insulate (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 § 787.02(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;
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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.
If the State has charged and is seeking the adult-on-minor sex offense
multiplier in § 921.0024(1)(b), Fla. Stat., instruct as follows. Alleyne v. United
States, 133 S. Ct. 2151 (2013).
If you find the defendant guilty of False Imprisonment, you must also
determine whether the State has proved the following four elements beyond a
reasonable doubt:
1. At the time of the False Imprisonment, (defendant) was 18 years of
age or older.
2. At the time of the False Imprisonment, (victim) was younger than
18 years of age.
3. The False Imprisonment was committed on or after October 1,
2014.
4. In the course of committing the False Imprisonment, (defendant)
committed [Sexual Battery] [Lewd or Lascivious Battery] [Lewd
or Lascivious Molestation] [Lewd or Lascivious Conduct] [Lewd
or Lascivious Exhibition] [Lewd or Lascivious Exhibition Over a
Computer Service] against (same victim as in element #2).
Define applicable felony unless included in other instructions.
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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).
*If the State alleged the first-degree felony punishable by life of False
Imprisonment with aggravating circumstances in § 787.02(3), Fla. Stat., then those
aggravating circumstances would be lesser-included crimes.
*If the State charged the defendant in a way to score the adult-on-minor sex
offense multiplier in § 921.0024(1)(b), Fla. Stat., then those sex crimes would be
lesser-included crimes.
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 [167 So. 3d 443],
and 2017.
18.3 FALSE INFORMATION TO LAW ENFORCEMENT
§ 837.055 Fla. Stat.
To prove the crime of False Information to Law Enforcement, the State
must prove the following five elements beyond a reasonable doubt:
1. (Name of law enforcement officer) was conducting a [missing
person investigation] [felony criminal investigation].
2. (Name of law enforcement officer) was a law enforcement officer.
3. (Defendant) knew that (name of law enforcement officer) was a law
enforcement officer.
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4. (Defendant) knowingly and willfully gave false information to
(name of law enforcement officer).
5. (Defendant) intended to mislead (name of law enforcement officer)
or impede the investigation.
Definition.
“Willfully” means intentionally, knowingly and purposely.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008.
28.18 FAILURE TO OBEY THE LAWFUL ORDER OF A [POLICE] [FIRE]
[TRAFFIC] OFFICIAL
§ 316.072(3), Fla. Stat.
To prove the crime of Failure to Obey the Lawful Order of a (insert type
of official from the list in § 316.072(3) Fla. Stat.), the State must prove the
following five elements beyond a reasonable doubt:
2.1. (Defendant) was [operating a [vehicle] [bicycle]] [walking] upon [a
state-maintained highway] [county-maintained highway]
[municipal street or alley] [place where vehicles have the right to
travel].
3.2. (Name of official) gave a lawful [order] [or] [direction] to
(defendant) regarding the operation of a vehicle or bicycle or the
movement of a pedestrian.
4.3. At the time, (name of official) was acting in [his] [her] capacity as
a [law enforcement officer] [traffic crash investigation officer]
[traffic infraction enforcement officer] [member of the fire
department who was at the scene of a fire, rescue operation, or
other emergency].
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5.4. (Defendant) knew that [he] [she] had been given a[n] [order]
[direction] by a [law enforcement officer] [traffic crash
investigation officer] [traffic infraction enforcement officer]
[member of the fire department who was at the scene of a fire,
rescue operation, or other emergency].
6.5. (Defendant) willfully failed to obey [or] [willfully refused to
comply] with the [order] [or] [direction] given.
Definitions. Give as applicable.
§ 316.003(95), Fla. Stat.
A “vehicle” is every device, in, upon, or by which any person or
property is or may be transported or drawn upon a highway, excepting
devices used exclusively upon stationary rails or tracks.
Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
“Willfully” means intentionally, knowingly, and purposely.
§ 316.003(2), Fla. Stat.
A “bicycle” is every vehicle propelled solely by human power, and every
motorized bicycle propelled by a combination of human power and an electric
helper motor capable of propelling the vehicle at a speed of not more than 20
miles per hour on level ground upon which any person may ride, having two
tandem wheels, and including any device generally recognized as a bicycle
though equipped with two front or two rear wheels. The term does not include
such a vehicle with a seat height of no more than 25 inches from the ground
when the seat is adjusted to its highest position or a scooter or similar device.
§ 316.640, Fla. Stat.
A “traffic crash investigation officer” is an individual who successfully
completed instruction in traffic accident investigation and court presentation
through the Selective Traffic Enforcement Program as approved by the
Criminal Justice Standards and Training Commission and funded through
the National Highway Traffic Safety Administration or a similar program
approved by the Criminal Justice Standards and Training Commission, and
who is employed by (insert relevant agency listed in § 316.640, Fla. Stat.).
§ 316.640, Fla. Stat.
A “traffic infraction enforcement officer” is an individual who
successfully completed instruction in traffic enforcement procedures and
court presentation through the Selective Traffic Enforcement Program as
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approved by the Division of Criminal Justice Standards and Training of the
Department of Law Enforcement, or through a similar program, and who is
employed by (insert relevant agency listed in § 316.640, Fla. Stat.).
Note to judge: A special instruction may be necessary when the defendant
claims the order or direction was not lawful.
Lesser Included Offenses
FAILURE TO OBEY — 316.072(3)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2015 [166 So. 3d 161] and amended in 2017.
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