In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2015-06 , 195 So. 3d 356 ( 2016 )

Supreme Court of Florida
____________
No. SC15-1872
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2015-06.
[June 23, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing amendments to nine existing
standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla.
Const.
The Committee proposes amending existing instructions 2.1 (Preliminary
Instructions); 8.2 (Aggravated Assault); 8.10 (Assault on Law Enforcement
Officer, Firefighter, etc.); 8.12 (Aggravated Assault on Law Enforcement Officer,
Firefighter, etc.); 8.15 (Aggravated Assault on Person 65 Years of Age or Older);
10.5 (Improper Exhibition of a [Weapon] [Firearm]); 11.17(c) (Traveling to Meet a
Minor); 11.17(d) (Traveling to Meet a Minor Facilitated by Parent, Legal
Guardian, or Custodian); and 16.4 (Contributing to Child [Delinquency]
[Dependency] [in Need of Services]).
Prior to filing its report with the Court, the Committee published its
proposals for comment. Two comments were received by the Committee. The
comments were filed by the Florida Public Defender Association and Attorney
Blaise Trettis, and addressed a proposed amendment to the comment section of
instructions 8.2, 8.10, 8.12, and 8.15. Upon consideration of the comments, the
Committee withdrew its proposed comment and added a new comment stating that
it is unclear whether a charging document that tracks the statute for aggravated
assault with a deadly weapon also charges improper exhibition.
After the Committee filed its report, the Court did not publish the
Committee’s proposals for comment. Having considered the Committee’s report
and the comments received by the Committee, we authorize instructions 2.1, 8.2,
8.10, 8.12, 8.15, 10.5, 11.17(c), 11.17(d), and 16.4 for publication and use, with the
following modification.
We decline to authorize for publication and use the Committee’s proposed
new comment in instruction 10.5 regarding the exhibition of an antique firearm.
The comment proposed by the Committee states that it is presently unclear whether
a defendant who improperly exhibits an antique firearm violates section 790.10,
Florida Statutes (2015)—the statute upon which instruction 10.5 is based. Under
-2-
that statute, a defendant is guilty of improper exhibition of a weapon or firearm if
he or she: (1) has or carries a weapon or firearm; (2) exhibits the weapon or
firearm in a rude, careless, angry, or threatening manner; and (3) does the
foregoing in the presence of one or more persons. § 790.10, Fla. Stat. (2015). The
term “firearm” is specifically defined in instruction 10.5. That definition—which
stems from section 790.001(6), Florida Statutes (2015)—expressly states that the
term “firearm” does not include antique firearms unless such are used in the
commission of a crime. The proposed comment is thus inconsistent with how the
term “firearm” is defined within the context of section 790.10, Florida Statutes,
and instruction 10.5. Given the existence of this inconsistency, we must decline to
authorize the Committee’s proposed comment for publication and use.
Accordingly, the instructions, as set forth in the appendix to this opinion, are
authorized for publication and use.1 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
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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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. New language is
indicated by underlining and deleted language is indicated by struck-through type.
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; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
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Appendix
2.1 PRELIMINARY INSTRUCTIONS
Ladies and gentlemen of the jury:
You have been selected and sworn as the jury to try the case of State of
Florida v. (defendant).
This is a criminal case. (Defendant) is charged with (crime(s) charged).
The definition of the elements of (crime(s) charged) will be explained to you
later.
It is your solemn responsibility to determine if the State has proved its
accusation beyond a reasonable doubt against (defendant). Your verdict must
be based solely on the evidence, or lack of evidence, and the law.
The State’s charging document, which is called an [information]
[indictment], is not evidence and is not to be considered by you as any proof of
guilt.
It is the judge’s responsibility to decide which laws apply to this case
and to explain thosethe laws to you. It is your responsibility to decide what the
facts of this case may be, and to apply the law to those facts. It is your solemn
responsibility to determine if the State proved its accusation beyond a
reasonable doubt against (defendant) in accordance with the law that I provide
to you. Thus, the province of the jury and the province of the court are well
defined, and they do not overlap. This is one of the fundamental principles of
our system of justice.
Before proceeding further, it will be helpful if you understand how a
trial is conducted.
At the beginning of the trial, the attorneys will have an opportunity, if
they wish, to make an opening statement. The opening statement gives the
attorneys a chance to tell you what evidence they believe will be presented
during the trial. What the lawyers say is not evidence, and you are not to
consider it as such.
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Following the opening statements, witnesses will be called to testify
under oath. They will be examined and cross-examined by the attorneys.
Documents and other exhibits also may be produced as evidence.
The trial judge should select one of the following two alternatives regarding
how final instructions are presented pursuant to Fla. R. Crim. P. 3.390(a).
Alternative A: After the evidence has been presented, the attorneys will
have the opportunity to make their finalclosing arguments.
Following the closing arguments by the attorneys, the court will instruct
you on the law applicable to the case.
Alternative B: After the evidence has been presented, the court will give
you instructions on the law.
The attorneys will then have the opportunity to make their closing
arguments.
Following the closing arguments by the attorneys, the court will
conclude with the final instructions.
Resume with the paragraph below.
After the final instructions are given [the alternative juror will be
released and] you will then retire to consider your verdict.
You should not form any definite or fixed opinion on the merits of the
case until you have heard all the evidence, the argument of the lawyers and
the instructions on the law by the judge. Until that time, you should not
discuss the case among yourselves.
Your verdict must be based solely on the evidence, or lack of evidence,
and the law.
I now instruct you not to communicate with anyone, including your
fellow jurors, about this case. No communication includes no e-mailing, text
messaging, tweeting, blogging, or any other form of communication. You
cannot do any research about the case or look up any information about the
case. If you become aware of any violation of any of these rules at all, notify
court personnel of the violation.
During the course of the trial, the court may take recesses, and you will
be permitted to separate and go about your personal affairs. During these
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recesses you must not discuss the case with anyone nor permit anyone to say
anything to you or in your presence about the case. If anyone attempts to say
anything to you or in your presence about this case, tell [him] [her]him or her
that you are on the jury trying the case and ask [him] [her]that person to stop.
If [he] [she]he or she persists, leave [him] [her]that person at once and
immediately report the matter to the [court deputy] [bailiff], who will advise
me.
The trial judge should select one of the following two alternative
instructions explaining the rules governing jurors’ use of electronic devices, as
explained in the Comment section.
Alternative A: All cell phones, computers, tablets or other types of
electronic devices must be turned off while you are in the courtroom. Turned
off means that the phone or other electronic device is actually off and not in a
silent or vibrating mode. You may use these devices during recesses, but even
then you may not use your cell phone or electronic device to find out any
information about the case or communicate with anyone about the case or the
people involved in the case. Do not take photographs, video recordings or
audio recordings of the proceedings or of your fellow jurors. After each
recess, please double check to make sure your cell phone or electronic device
is turned off. At the end of the case, while you are deliberating, you must not
communicate with anyone outside the jury room. You cannot have in the jury
room any cell phones, computers, or other electronic devices. If someone
needs to contact you in an emergency, the court can receive messages and
deliver them to you without delay. A contact phone number will be provided
to you.
Alternative B: You cannot have any cell phones, tablets, laptops, or
other electronic devices in the courtroom. You may use these devices during
recesses, but even then you may not use your cell phone or electronic device to
find out any information about the case or communicate with anyone about
the case or the people involved in the case. Do not take photographs, video
recordings or audio recordings of the proceedings or your fellow jurors. At
the end of the case, while you are deliberating, you must not communicate
with anyone outside the jury room. If someone needs to contact you in an
emergency, the court can receive messages and deliver them to you without
delay. A contact phone number will be provided to you.
Resume with the paragraph below.
The case must be tried by you only on the evidence presented during the
trial in your presence and in the presence of the defendant, the attorneys and
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the judge. Jurors must not conduct any investigation of their own. This
includes reading newspapers, watching television or using a computer, cell
phone, the Internet, any electronic device, or any other means at all, to get
information related to this case or the people and places involved in this case.
This applies whether you are in the courthouse, at home, or anywhere else.
You must not visit places mentioned in the trial or use the Internet to look at
maps or pictures to see any place discussed during the trial.
Jurors must not have discussions of any sort with friends or family
members about the case or the people and places involved. So, do not let even
the closest family members make comments to you or ask questions about the
trial. In this age of electronic communication, I want to stress again that just
as you must not talk about this case face-to-face, you must not talk about this
case by using an electronic device. You must not use phones, computers or
other electronic devices to communicate. Do not send or accept any messages
related to this case or your jury service. Do not discuss this case or ask for
advice by any means at all, including posting information on an Internet
website, chat room or blog.
What are the reasons for these rules? These rules are imposed because
jurors must decide the case without distraction and only on the evidence
presented in the courtroom. If you investigate, research, or make inquiries on
your own, the trial judge has no way to make sure that the information you
obtain is proper for the case. The parties likewise have no opportunity to
dispute or challenge the accuracy of what you find. That is contrary to our
judicial system, which assures every party the right to ask questions about
and challenge the evidence being considered against it and to present
argument with respect to that evidence. Any independent investigation by a
juror unfairly and improperly prevents the parties from having that
opportunity our judicial system promises.
Any juror who violates these restrictions jeopardizes the fairness of
these proceedings and a mistrial could result that would require the entire
trial process to start over. A mistrial is a tremendous expense and
inconvenience to the parties, the court, and the taxpayers. If you violate these
rules, you may be held in contempt of court, and face sanctions, such as
serving time in jail, paying a fine or both.
Give if defendant requests.
In every criminal proceeding a defendant has the absolute right to
remain silent. At no time is it the duty of a defendant to prove [his] [her]
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innocence. From the exercise of a defendant’s right to remain silent, a jury is
not permitted to draw any inference of guilt, and the fact that a defendant did
not take the witness stand must not influence your verdict in any manner
whatsoever.
The attorneys are trained in the rules of evidence and trial procedure,
and it is their duty to make all objections they feel are proper. When an
objection is made you should not speculate on the reason why it is made;
likewise, when an objection is sustained, or upheld, by me, you must not
speculate on what might have occurred had the objection not been sustained,
nor what a witness might have said had [he] [she] been permitted to answer.
During the trial, it may be necessary to confer with the attorneys out of
your hearing to discuss matters of law and other matters that require
consideration by me alone. It is impossible to predict when such a conference
may be required or how long it will last. When such conferences occur, they
will be conducted so as to consume as little of your time as is necessary for a
fair and orderly trial of the case.
Comments
Florida Rule of Judicial Administration 2.451 directs trial judges to instruct
jurors on the use of cell phones and other electronic devices. During the trial, the
trial judge may remove the jurors’ cell phones or other electronic devices. The
trial judge also has the option to allow the jurors to keep the cell phones and
electronic devices during trial until the jurors begin deliberations. Rule 2.451
prohibits jurors from using the cell phones or electronic devices to find out
information about the case or to communicate with others about the case. The
jurors also cannot use the electronic devices to record, photograph, or videotape
the proceedings. In recognition of the discretion rule 2.451 gives trial judges, this
instruction provides two alternatives: (A) requiring jurors to turn off electronic
devices during court proceedings and removing their cell phones and electronic
devices during deliberations; or (B) removing the cell phones and electronic
devices during all proceedings and deliberations. These instructions may be
modified to fit the practices of a trial judge in a particular courtroom. These
instructions are not intended to limit the discretion of the trial court to control the
proceedings.
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The portion of this instruction dealing with communication with others and
outside research may need to be modified to include other specified means of
communication or research as technology develops.
This instruction was adopted in 1981 and amended in 2010 [52 So. 3d 595],
and 2014 [152 So. 3d 529], and 2016.
8.2 AGGRAVATED ASSAULT
§ 784.021, Fla. Stat.
To prove the crime of Aggravated Assault, the State must prove the
following four elements beyond a reasonable doubt. The first three elements
define assault.
1. (Defendant) intentionally and unlawfully threatened, either by
word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out
the threat.
3. The act of (defendant) created in the mind of (victim) a well-
founded fear that the violence was about to take place.
Give 4a and/or 4b as applicable. If 4b is alleged, give the elements of the
felony charged.
4. a. [The assault was made with a deadly weapon.]
b. [The assault was made with a fully-formed, conscious intent to
commit (felony charged) upon (victim).]
Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4thth DCA 1980);
Smithson v. State, 689 So. 2d 1226 (Fla. 5thth DCA 1997); Gilbert v. State, 347 So.
2d 1087 (Fla. 3rdd DCA 1977).
If the circumstances were such as to ordinarily induce a well-founded
fear in the mind of a reasonable person, then the victim(victim) may be found
to have been in fear, and actual fear on the part of the actual victim(victim)
need not be shown.
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Definition. Give if 4a alleged.
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.
Give if 4a alleged.
It is not necessary for the State to prove that the defendant had an
intent to kill.
Lesser Included Offenses
AGGRAVATED ASSAULT — 784.021
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Improper exhibition of 790.10* 10.5*
a dangerous weapon or
firearm, if Fla. Stat. §
784.021(1)(a), Fla.
Stat., is charged*
Assault 784.011 8.1
Attempt 777.04(1) 5.1
Discharging firearms 790.15 10.6
in public
Comments
*It is not clear whether a charging document that tracks the statute for
Aggravated Assault with a Deadly Weapon necessarily charges Improper
Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and
Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So.
2d 264 (Fla. 3d DCA 1974).
This instruction was approved in 1981 and amended in 2013 [131 So. 3d
755], and 2016.
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8.10 ASSAULT ON LAW ENFORCEMENT OFFICER, FIREFIGHTER,
ETC.
§ 784.07(2)(a), Fla. Stat.
To prove the crime of Assault on a [Law Enforcement Officer]
[Firefighter] [Emergency Medical Care Provider] [Traffic Accident
Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking
Enforcement Specialist] [Security Officer Employed by the Board of Trustees
of a Community College] [Law Enforcement Explorer] [Non-sworn Law
Enforcement Agency Employee Certified as an Agency Inspector] [Blood
Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed
Security Officer], the State must prove the following six elements beyond a
reasonable doubt:
1. (Defendant) intentionally and unlawfully threatened, either by
word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry
out the threat.
3. The act of (defendant) created in the mind of (victim) a well-
founded fear that the violence was about to take place.
4. (Victim) was at the time a [law enforcement officer]
[firefighter] [emergency medical care provider] [traffic
accident investigation officer] [traffic infraction
enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a
community college] [law enforcement explorer] [non-sworn
law enforcement agency employee who was certified as an
agency inspector] [blood alcohol analyst] [breath test
operator while such employee was in uniform and engaged
in processing, testing, evaluating, analyzing, or transporting
a person who was detained or under arrest for DUI]
[railroad special officer] [licensed security officer who wore
a uniform that bore at least one patch or emblem that was
visible at all times that clearly identified the employing
agency and that clearly identified the person as a licensed
security officer].
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5. (Defendant) knew (victim) was a [law enforcement officer]
[firefighter] [emergency medical care provider] [traffic
accident investigation officer] [traffic infraction
enforcement officer] [parking enforcement specialist]
[security officer employed by the board of trustees of a
community college] [law enforcement explorer] [non-sworn
law enforcement agency employee who was certified as an
agency inspector] [blood alcohol analyst] [breath test
operator] [railroad special officer] [licensed security
officer].
6. At the time of the assault, (victim) was engaged in the lawful
performance of [his] [her] duties.
For cases where the alleged victim is a law enforcement officer, do not refer
to the victim by name when instructing on the sentence below. Instead, the
instruction must state the class of officers to which the victim belongs, e.g., deputy
sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024(Fla. 1991).
The court now instructs you that a (name of official position of victim
designated in charge) is a law enforcement officer.
For cases involving other types of victims, insert definitions from
§ 784.07(1)(a), Fla. Stat., as appropriate.
Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980);
Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So.
2d 1087 (Fla. 3d DCA 1977).
If the circumstances were such as to ordinarily induce a well-founded
fear in the mind of a reasonable person, then the victim(victim) may be found
to have been in fear, and actual fear on the part of the actual victim(victim)
need not be shown.
Lesser Included Offenses
ASSAULT ON LAW ENFORCEMENT OFFICER, FIREFIGHTER,
ETC. — 784.07(2)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Assault 784.011 8.1
Attempt 777.04(1) 5.1
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Comments
See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013) (holding that a
conviction for a violation of § 784.07(2), Florida StatutesFla. Stat., had to be
vacated because the statute does not include physicians, employees, agents, or
volunteers of facilities that do not satisfy the definition of a hospital under chapter
395).
This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992
[603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So.
2d 1038], and 2015 [157 So. 3d 1027], and 2016.
8.12 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER,
FIREFIGHTER, ETC.
§ 784.07(2)(c), Fla. Stat.
To prove the crime of Aggravated Assault on a [Law Enforcement
Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident
Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking
Enforcement Specialist] [Law Enforcement Explorer] [a Non-sworn Law
Enforcement Agency Employee Certified as an Agency Inspector] [Blood
Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed
Security Officer] [Security Officer Employed by the Board of Trustees of a
Community College], the State must prove the following seven elements
beyond a reasonable doubt. The first three elements define assault.
1. (Defendant) intentionally and unlawfully threatened, either by
word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out
the threat.
3. The act of (defendant) created in the mind of (victim) a well-
founded fear that the violence was about to take place.
Give 4a and/or 4b as applicable. If 4b is alleged, give the elements of the
felony charged.
4. a. The assault was made with a deadly weapon.
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b. The assault was made with a fully-formed, conscious intent
to commit (felony charged) upon (victim).
5. (Victim) was at the time a [law enforcement officer] [firefighter]
[emergency medical care provider] [traffic accident investigation
officer] [traffic infraction enforcement officer] [parking
enforcement specialist] [security officer employed by the board of
trustees of a community college] [law enforcement explorer]
[nonsworn law enforcement agency employee who was certified as
an agency inspector] [blood alcohol analyst] [breath test operator
while such employee was in uniform and engaged in processing,
testing, evaluating, analyzing, or transporting a person who was
detained or under arrest for DUI] [railroad special officer]
[licensed security officer who wore a uniform that bore at least
one patch or emblem that was visible at all times that clearly
identified the employing agency and that clearly identified the
person as a licensed security officer].
6. (Defendant) knew (victim) was a [law enforcement officer]
[firefighter] [emergency medical care provider] [traffic accident
investigation officer] [traffic infraction enforcement officer]
[parking enforcement specialist] [security officer employed by the
board of trustees of a community college] [law enforcement
explorer][nonsworn law enforcement agency employee who was
certified as an agency inspector] [blood alcohol analyst] [a breath
test operator] [railroad special officer] [licensed security officer].
7. At the time of the assault, (victim) was engaged in the lawful
performance of [his] [her] duties.
For cases where the alleged victim is a law enforcement officer, do not refer
to the victim by name when instructing on the sentence below. Instead, the
instruction must state the class of officers to which the victim belongs, e.g., deputy
sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024(Fla. 1991).
The court now instructs you that a (name of official position of victim
designated in charge) is a law enforcement officer.
For cases involving other types of victims, insert definitions from
§ 784.07(1)(a), Fla. Stat., as appropriate.
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Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4thth DCA 1980);
Smithson v. State, 689 So. 2d 1226 (Fla. 5thth DCA 1997); Gilbert v. State, 347 So.
2d 1087 (Fla. 3rdd DCA 1977).
If the circumstances were such as to ordinarily induce a well-founded
fear in the mind of a reasonable person, then the victim(victim) may be found
to have been in fear, and actual fear on the part of the actual victim(victim)
need not be shown.
Give if element 4a alleged.
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.
Give if element 4a alleged.
It is not necessary for the State to prove that the defendant had an
intent to kill.
Lesser Included Offenses
AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER,
ETC. - —784.07(2)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO.
Aggravated assault 784.021 8.2
Assault on law 784.07(2)(a) 8.10
enforcement officer
Improper exhibition 790.10* 10.5*
of a dangerous
weapon or firearm,
if Fla. Stat. §
784.021(1)(a), Fla.
Stat., is charged*
Assault 784.011 8.1
Attempt 777.04(1) 5.1
Discharging firearms in 790.15 10.6
public
Comments
*It is not clear whether a charging document that tracks the statute for
Aggravated Assault with a Deadly Weapon necessarily charges Improper
- 16 -
Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and
Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So.
2d 264 (Fla. 3d DCA 1974).
See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5thth DCA 2013)(holding that a
conviction for a violation of § 784.07(2), Florida StatuteFla. Stat., had to be
vacated because the statute does not include physicians, employees, agents, or
volunteers of facilities that do not satisfy the definition of a hospital under chapter
395).
This instruction was approved in 1992 [603 So. 2d 1175], and amended in
1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2013
[131 So. 3d 755], and 2015 [157 So. 3d 1027], and 2016.
8.15 AGGRAVATED ASSAULT ON PERSON
65 YEARS OF AGE OR OLDER
§ 784.08(2)(b), Fla. Stat.
To prove the crime of Aggravated Assault on a Person 65 Years of Age
or Older, the State must prove the following five elements beyond a
reasonable doubt. The first three elements define assault.
1. (Defendant) intentionally and unlawfully threatened, either by
word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out
the threat.
3. The act of (defendant) created in the mind of (victim) a well-
founded fear that the violence was about to take place.
Give 4a and/or 4b. If 4b is alleged, give the elements of the felony charged.
4. a. The assault was made with a deadly weapon.
b. The assault was made with a fully-formed conscious intent
to commit (felony charged) upon (victim).
5. (Victim) was at the time 65 years of age or older.
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Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4thth DCA 1980);
Smithson v. State, 689 So. 2d 1226 (Fla. 5thth DCA 1997); Gilbert v. State, 347 So.
2d 1087 (Fla. 3rdd DCA 1977).
If the circumstances were such as to ordinarily induce a well-founded
fear in the mind of a reasonable person, then the victim(victim) may be found
to have been in fear, and actual fear on the part of the actual victim(victim)
need not be shown.
Definition. Give if 4a alleged.
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.
Give if 4a alleged.
It is not necessary for the State to prove that the defendant had an
intent to kill.
Lesser Included Offenses
AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR
OLDER — 784.08(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Aggravated assault 784.021 8.2
Assault on person 65 784.08(2)(d) 8.17
years of age or older
Improper exhibition of 790.10* 10.5*
a dangerous weapon or
firearm, if Fla. Stat. §
784.021(1)(a), Fla.
Stat., is charged*
Assault 784.011 8.1
Attempt 777.04(1) 5.1
Discharging firearms 790.15 10.6
in public
Comments
*It is not clear whether a charging document that tracks the statute for
Aggravated Assault with a Deadly Weapon necessarily charges Improper
Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and
- 18 -
Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So.
2d 264 (Fla. 3d DCA 1974).
This instruction was adopted in 1997 [697 So. 2d 84] and amended in 2013
[131 So. 3d 755], and 2016.
10.5 IMPROPER EXHIBITION OF A [WEAPON] [FIREARM]
§ 790.10, Fla. Stat.
To prove the crime of Improper Exhibition of a [Weapon] [Firearm],
the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) had or carried [a weapon] [a firearm] [a dirk] [a
sword] [a sword cane] [an electric weapon or device].
2. (Defendant) exhibited the [weapon] [firearm] [dirk] [sword]
[sword cane] [electric weapon or device] in a [rude] [careless]
[angry] [or] ]threatening] manner.
3. [He] [She] did so in the presence of one or more persons.
Defense.
If you find that the defendant exhibited the [weapon] [firearm] ]dirk]
[sword] [sword cane] [electric weapon or device] in necessary self-defense, you
must find [him] [her] not guilty. Read appropriate self-defense instruction.
Give as applicable.
Definitions.
§ 790.001(13), Fla. Stat., and Porter v. State, 798 So. 2d 855 (Fla. 5thth
DCA 2001).
A “weapon” is any dirk, knife, metallic knuckles, slungshot, billie, tear
gas gun, chemical weapon or device, or other deadly weapon except a firearm
or a closed common pocketknife, plastic knife, or blunt-bladed table knife.
Give if applicable. Porter v. State, 798 So. 2d 855 (Fla. 5thth DCA 2001).
However, an open pocketknife could constitute a weapon.
R.R. v. State, 826 So. 2d 465 (Fla. 5thth DCA 2002); Cook v. Crosby, 914 So.
2d 490 (Fla. 1stst DCA 2005).
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A “deadly weapon” is any instrument which will likely cause death or
great bodily harm when used in the ordinary and usual manner contemplated
by its design and construction. An object can be a deadly weapon if its sole
modern use is to cause great bodily harm. An object not designed for use as a
weapon may nonetheless be a deadly weapon if its use, intended use, or
threatened use by the defendant was in a manner likely to inflict death or
great bodily harm.
“Electric weapon or device” means any device which, through the
application or use of electrical current, is designed, redesigned, used, or
intended to be used for offensive or defensive purposes, the destruction of life,
or the infliction of injury.
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.].
Lesser Included Offenses
IMPROPER EXHIBITION OF A WEAPON OR FIREARM — 790.10
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Assault 784.011 8.1
Comments
*A claim that a firearm is an antique firearm is an affirmative defense. State
v. Thompson, 390 So. 2d 715 (Fla. 1980). It is undecided whether a defendant must
prove by a preponderance of the evidence the firearm was an antique firearm or
whether the state must prove the firearm was not an antique firearm.
This instruction was adopted in 1981 and amended in 2013 [131 So. 3d 720]
and 2016.
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11.17(c) TRAVELING TO MEET A MINOR
§ 847.0135(4)(a), Fla. Stat.
To prove the crime of Traveling to Meet a Minor, the State must prove
the following two elements beyond a reasonable doubt:
1. (Defendant) used a[n] [computer on-line service] [Internet service]
[local bulletin board service] [device capable of electronic data
storage or transmission] to [seduce] [solicit] [lure] [entice]
[attempt to [seduce] [solicit] [lure] [entice]] a [child] [person
believed by the defendant to be a child] to engage in [(insert illegal
act in chapter 794, 800, or 827 as alleged in the charging instrument)]
[unlawful sexual conduct].
2. (Defendant) then [traveled] [attempted to travel] [caused another
to travel] [attempted to cause another to travel] [within this state]
[to this state] [from this state] for the purpose of [(insert violation
of chapter 794, 800, or 827 as alleged in the charging instrument)]
[unlawful sexual conduct] with a [child] [person believed by the
defendant to be a child].
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
- 21 -
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Traveling to Meet a
Minor, you must also determine whether the State has proved beyond a
reasonable doubt that (defendant) was an authority figure at a school and
(victim) was a student at the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
- 22 -
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
TRAVELING TO MEET A MINOR — 847.0135(4)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Soliciting a [Child] 847.0135(3) 11.17(a)
[Person Believed by (a)
the Defendant to be a
Child] for Unlawful
Sexual Conduct Using
Computer Services or
Devices
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263] and 2016.
11.17(d) TRAVELING TO MEET A MINOR FACILITATED BY
PARENT, LEGAL GUARDIAN, OR CUSTODIAN
§ 847.0135(4)(b), Fla. Stat.
To prove the crime of Traveling to Meet a Minor Facilitated by Parent,
Legal Guardian, or Custodian, the State must prove the following two
elements beyond a reasonable doubt:
1. (Defendant) used a[n] [computer on-line service] [Internet service]
[local bulletin board service] [device capable of electronic data
storage or transmission] to [solicit] [lure] [entice] [attempt to
[solicit] [lure] [entice]] a [parent] [legal guardian] [custodian]
[person believed by the defendant to be a [parent] [legal guardian]
- 23 -
[custodian]] of a child to consent for the [child] [person believed
by the defendant to be a child] to participate in [(insert violation of
chapter 794, 800, or 827 as alleged in the charging instrument)]
[sexual conduct].
2. (Defendant) then [traveled] [attempted to travel] [caused another
to travel] [attempted to cause another to travel] [within this state]
[to this state] [from this state] for the purpose of engaging in any
illegal act described in [(insert violation of chapter 794, 800, or 827
as alleged in the charging instrument)] [other unlawful sexual
conduct] with a child or a person believed by the defendant to be
a child.
The mere fact that an undercover operative or law enforcement officer
was involved in the detection and investigation of this offense shall not
constitute a defense from prosecution.
Definitions.
A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla. Stat.
“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
upon another or receiving such harm oneself.
“Sexual battery” means oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetration of another
- 24 -
by any other object; however, sexual battery does not include an act done for
a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and the penis, or the mouth and the vulva.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
Give if applicable. § 775.0862, Fla. Stat.
Enhancement for sexual offense against student by school authority figure.
If you find that (defendant) committed the crime of Traveling to Meet a
Minor Facilitated by Parent, Legal Guardian, or Custodian, you must also
determine whether the State has proved beyond a reasonable doubt that
(defendant) was an authority figure at a school and (victim) was a student at
the same school.
“Authority figure” means a person 18 years of age or older who is
employed by, volunteering at, or under contract with a school.
“School” means an organization of students for instructional purposes
on an elementary, middle or junior high school, secondary or high school, [or
other public school level authorized under the rules of the State Board of
Education]. The term “school” does not include facilities dedicated exclusively
to the education of adults. If needed, insert appropriate definitions from
§ 775.0862(1)(b), Fla. Stat., for “private school” or “voluntary prekindergarten
education program” or “early learning program” or “public school as described
in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the
“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
- 25 -
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
TRAVELING TO MEET A MINOR FACILITATED BY
PARENT, LEGAL GUARDIAN, OR CUSTODIAN — 847.0135(4)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Soliciting a Parent of a 847.0135(3) 11.17(b)
Child for Unlawful (b)
Sexual Conduct Using
Computer Services or
Devices
Comment
This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013
[122 So. 3d 263] and 2016.
16.4 CONTRIBUTING TO CHILD [DELINQUENCY] OR [DEPENDENCY]
OR TO CHILD [IN NEED OF SERVICES]
§ 827.04(31), Fla. Stat.
To prove the crime of Contributing to a cChild’s bBecoming a
[dDelinquent cChild] [dDependent cChild] [cChild in nNeed of sServices], the
State must prove the following element beyond a reasonable doubt:
Give if § 827.04(1)(a), Fla. Stat., is charged.
[(Defendant) knowingly (read act alleged from charge), which [caused]
[tended to cause] [encouraged] [contributed to] (victim) to become a
[delinquent] [dependent] child [in need of services].
[caused]
[tended to cause or encourage]
[contributed to]
(victim) [to become] [becoming] a [delinquent] [dependent] child [in
need of services].]
- 26 -
Give if § 827.04(1)(b), Fla. Stat., is charged.
[(Defendant), knowingly, by [act] [threat] [command] [or] [persuasion],
[induced] [endeavored to induce] (victim) to [commit or perform an act]
[follow a course of conduct] [live in a manner] that caused or tended to cause
(victim) to [become] [remain] a [delinquent] [dependent] child [in need of
services].
[act]
[threat]
[command]
[persuasion]
[induced] [endeavored to induce] (victim) to
[perform any act]
[follow any course of conduct]
[live]
so as to cause or tend to cause (victim) to
[become a dependent child].]
[remain a dependent child].]
[become a delinquent child].]
[remain a delinquent child].]
[become a child in need of services].]
[remain a child in need of services].]
Definition. § 827.01(12), Fla. Stat.
“Child” means any person under the age of 18 years.
State v. Shamrani, 370 So. 2d 1 (Fla. 1979). The option of “remain” applies
only if § 827.04(1)(b), Fla. Stat., is charged.
“Knowingly” means that (defendant) created a substantial and
unjustifiable risk that [his] [her] act[s] [caused] [or] [tended to cause] (victim)
to [become] [remain] a [delinquent] [dependent] child [in need of services].
Prepare the definition of “delinquency,” “dependency,” or “child in need of
services” based on the statutory definitions in effect at the time of the alleged
offense. See § 39.01 Fla.Stat.
- 27 -
Give as applicable.
§ 984.03(9), Fla. Stat. If the allegation involves habitual truancy from
school, a special instruction regarding § 1003.26, Fla. Stat., and 1003.27, Fla.
Stat., will be needed.
“Child in need of services” means a child for whom there is no pending
investigation into an allegation or suspicion of abuse, neglect, or
abandonment; no pending referral alleging the child is delinquent; or no
current supervision by the Department of Juvenile Justice or the Department
of Children and Families for an adjudication of dependency or delinquency.
The child must also be found by the court:
(a) To have persistently run away from the child’s parents or legal
custodians despite reasonable efforts of the child, the parents or legal
custodians, and appropriate agencies to remedy the conditions contributing to
the behavior. Reasonable efforts shall include voluntary participation by the
child’s parents or legal custodians and the child in family mediation, services,
and treatment offered by the Department of Juvenile Justice or the
Department of Children and Families;
(b) To be habitually truant from school, while subject to compulsory
school attendance, despite reasonable efforts to remedy the situation pursuant
to law and through voluntary participation by the child’s parents or legal
custodians and by the child in family mediation, services, and treatment
offered by the Department of Juvenile Justice or the Department of Children
and Families; or
(c) To have persistently disobeyed the reasonable and lawful
demands of the child’s parents or legal custodians, and to be beyond their
control despite efforts by the child’s parents or legal custodians and
appropriate agencies to remedy the conditions contributing to the behavior.
Reasonable efforts may include such things as good faith participation in
family or individual counseling.
§ 984.03(11), and § 985.03(53), Fla. Stat.
“Delinquent Child” means a child who committed a violation of any law
[of this state, the United States, or any other state which is a misdemeanor or
a felony or a violation of a county or municipal ordinance] which would be
punishable by incarceration if the violation were committed by an adult [or
direct or indirect contempt of court,] [except that this definition shall not
include an act constituting contempt of court arising out of a dependency
- 28 -
proceeding or a proceeding pursuant to Chapter 984 of Florida Statutes].
(Name of violation of law) is such a violation of law.
Give if the child has yet to be found delinquent by a court.
The elements of this violation of law are: (define the elements of the
crime).
§ 984.03(12), Fla. Stat.
“Dependent child” means a child who, pursuant to Chapter 984 of
Florida Statutes, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s
parents or other custodians.
(b) To have been surrendered to the former Department of Health
and Rehabilitative Services, the Department of Children and Families, or a
licensed child-placing agency for purpose of adoption.
(c) To have been voluntarily placed with a licensed child-caring
agency, a licensed child-placing agency, an adult relative, the former
Department of Health and Rehabilitative Services, or the Department of
Children and Families, after which placement, under the requirements of
Chapter 984, a case plan has expired and the parent or parents have failed to
substantially comply with the requirements of the plan.
(d) To have been voluntarily placed with a licensed child-placing
agency for the purposes of subsequent adoption and a natural parent or
parents signed a consent pursuant to the Florida Rules of Juvenile Procedure.
(e) To have no parent, legal custodian, or responsible adult relative to
provide supervision and care.
(f) To be at substantial risk of imminent abuse or neglect by the
parent or parents or the custodian.
- 29 -
Lesser Included Offenses
CONTRIBUTING TO CHILD DELINQUENCY OR DEPENDENCY
OR TO CHILD IN NEED OF SERVICES — 827.04(31)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 1981 and amended in 1989, and 1992 [603
So. 2d 1175], and 2016.
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