In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013-05 ( 2014 )

Supreme Court of Florida
____________
No. SC13-1733
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2013-05.
[December 11, 2014]
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.
In 2013, this Court authorized for publication and use amended Standard
Criminal Jury Instructions 25.9–25.13, which pertain to various drug trafficking
offenses. See In re Std. Jury Instrs. in Crim. Cases—Instrs. 25.9–25.13, 112 So. 3d
1211 (Fla. 2013). In our opinion in that case, we asked the Committee to “review
jury instructions 25.2–25.8 and make a recommendation to the Court whether any
amendments to those instructions are warranted in light of the Court’s decision
here, or in light of [State v.] Adkins [96 So. 3d 412 (Fla. 2012).]”1 We also asked
the Committee for a recommendation as to “whether instructions 25.9–25.13
should be amended in light of Smith v. United States, 133 S. Ct. 714 (2013).” In re
Std. Jury Instrs. in Crim. Cases, 112 So. 3d at 1212.2 In response to our requests
for recommendations on these points, the Committee has filed the current report
proposing further amendments to the aforementioned instructions, proposing
amendments to other standard instructions pertaining to drug offenses, and
proposing two entirely new instructions. This Court directed that the proposals be
published in The Florida Bar News. No comments have been filed with the Court
in response to publication.
The Committee’s proposed changes affect the following existing criminal
jury instructions: 25.2 (Drug Abuse—Sale, Purchase, Manufacture, Delivery, or
1. In State v. Adkins, this Court found that section 893.101, Florida Statutes
(2011), had “expressly eliminate[d] knowledge of the illicit nature of the controlled
substance as an element of controlled substance offenses and expressly create[d] an
affirmative defense of lack of knowledge of the illicit nature of the substance.” 96
So. 3d at 416 (plurality opinion with three justices concurring and two justices
concurring in result). The Court upheld the statute as constitutional against a facial
due process challenge. Id. at 412, 423 (plurality opinion with three justices
concurring and two justices concurring in result).
2. In Smith v. United States, the United States Supreme Court held, in a
case involving a charge of criminal conspiracy where the defendant claimed to
have withdrawn from the conspiracy, that there was no violation of due process in
placing the burden of proving withdrawal on the defendant. 133 S. Ct. at 720-21.
2
Possession with Intent); 25.3 (Drug Abuse—Sale, Purchase, Delivery, or
Possession in Excess of Ten Grams); 25.4 (Drug Abuse—Delivery to or Use of
Minor); 25.5 (Drug Abuse—Bringing into State); 25.6 (Drug Abuse—Contraband
in Specified Locations); 25.7 (Drug Abuse—Possession); 25.8 (Drug Abuse—
Obtaining Controlled Substance by Fraud, etc.); 25.9 (Trafficking in Cannabis);
25.10 (Trafficking in Cocaine); 25.11 (Trafficking in Morphine, Opium,
Oxycodone, Hydrocodone, Hydromorphone, [or] Heroin); 25.12 (Trafficking in
Phencyclidine); 25.13 (Trafficking in Methaqualone); 25.14 (Drug Abuse—Use or
Possession of Drug Paraphernalia); 25.15 (Drug Abuse—Delivery, Possession with
Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16
(Drug Abuse—Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in
County Detention Facility); and 25.18 (Contraband in Juvenile Facility). The
Committee proposes that we also authorize for publication and use the following
new instructions: 25.20 (Possession of Contraband in or Upon the Grounds of a
State Correctional Institution); and 25.21 (Introduction or Removal of Contraband
into or from a State Correctional Institution). We authorize the proposed amended
and new instructions for publication and use except as noted below.
In its report, the Committee states that it found the law was uncertain on the
issue of whether “knowledge of presence” is a required element of certain drug
offenses. With respect to certain offenses, the Committee found that “knowledge
3
of presence” may or may not be an element. The Committee proposes to address
this uncertainty by including optional instructions along with notes and comments
to explain the issue.
Currently, Instruction 25.2 (Sale, Purchase, Manufacture, Delivery, or
Possession with Intent) lists the following as element 3: “Defendant had
knowledge of the presence of the substance,” preceded by an advisory note saying,
“Give if possession is charged.” The Committee proposes to change the advisory
note to read: “Give element #3 if Possession with Intent to Sell, Purchase,
Manufacture or Deliver is charged. It is unclear whether element #3 must be given
for Sale, Manufacture, Delivery, or Purchase of a Controlled Substance. See
Comment section.”
Current Instruction 25.3 (Sale, Purchase, Delivery, or Possession in Excess
of Ten Grams) includes as element 3, “Defendant had knowledge of the presence
of the substance,” preceded by a note saying, “Give if possession is charged.” The
Committee proposes to change the note to read: “Give element #3 if possession is
charged. It is unclear whether element #3 must be given for Sale, Purchase, or
Delivery of a controlled substance. See Comment section.”
Instruction 25.4 (Delivery to or Use of a Minor) does not currently include
“knowledge of presence” as an element. The Committee proposes to add it as
element 4, reading, “Defendant had knowledge of the presence of the substance,”
4
preceded by a note saying, “It is unclear whether element #4 must be given for
Delivery of a Controlled Substance. See Comment section.”
Instruction 25.5 (Bringing into State) currently includes as element 3:
“Defendant had knowledge of the presence of the substance.” The Committee
proposes adding a note preceding element 3 reading, “It is unclear whether element
#3 must be given. See Comment section.”
Instruction 25.6 (Contraband in Specified Locations) currently includes as
element 4: “Defendant had knowledge of the presence of the substance.” The
Committee proposes to add the following advisory notes: “Give element #4 if
Possession with Intent to Sell, Manufacture or Deliver is charged. It is unclear
whether element #4 must be given for Sale, Manufacture, or Delivery of a
Controlled Substance. See Comment section.”
With some variations in the language, the Committee proposes adding
comments to all five of the above-listed instructions explaining the issue as
follows:
Unlike the trafficking statutes, the statutes for these crimes do
not contain the word “knowingly.” Also, the affirmative defense
statute of section 893.101, Florida Statutes, addresses only
“knowledge of illicit nature” and not “knowledge of presence.”
Because of case law, “knowledge of presence” is an element of
possession, which is why [an instruction on knowledge of presence]
must be given if the defendant is charged with [possession or
possession with intent]. See State v. Oxx, 417 So. 2d 287 (Fla. 5th
DCA 1982). However, there is an absence of case law as to whether
“knowledge of presence” is an element of [other offenses covered by
5
these five instructions] or whether “lack of knowledge of presence” is
an affirmative defense. In the absence of case law, trial judges must
decide this issue.
We decline to authorize the Committee’s proposed amendments to these five
instructions insofar as the treatment of “knowledge of presence” is concerned.
In State v. Adkins, 96 So. 3d at 414-16, this Court addressed a facial
challenge to the constitutionality of section 893.101, Florida Statutes (2011).3 The
3. As currently codified the statute is identical. See § 893.101, Fla. Stat.
(2014). This statute was created by chapter 2002-258, Laws of Florida, which
provided:
Section 1. Section 893.101, Florida Statutes, is created to read:
893.101 Legislative findings and intent.—
(1) The Legislature finds that the cases of Scott v. State, [808
So. 2d 166] (Fla. 2002), and Chicone v. State, 684 So. 2d 736 (Fla.
1996), holding that the state must prove that the defendant knew of
the illicit nature of a controlled substance found in his or her actual or
constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of
a controlled substance is not an element of any offense under this
chapter. Lack of knowledge of the illicit nature of a controlled
substance is an affirmative defense to the offenses of this chapter.
(3) In those instances in which a defendant asserts the
affirmative defense described in this section, the possession of a
controlled substance, whether actual or constructive, shall give rise to
a permissive presumption that the possessor knew of the illicit nature
of the substance. It is the intent of the Legislature that, in those cases
where such an affirmative defense is raised, the jury shall be
instructed on the permissive presumption provided in this subsection.
6
lower court had held that the statute’s purported elimination of the requirement of
knowledge of the illicit nature of a controlled substance as an element of offenses
under chapter 893, Florida Statutes (2011), was a violation of the requirements of
due process of law under the United States and Florida Constitutions. This Court
reversed that decision. See Adkins, 96 So. 3d at 412, 423. In its analysis of the
constitutionality of 893.101, the plurality opinion said, “The statute does not
eliminate the element of knowledge of the presence of the substance . . . .” Id. at
416. An opinion concurring in result found that the statute “continue[d] to require
the State to prove that a defendant had knowledge of the presence of the controlled
substance as an element of drug-related offenses.” Id. at 424 (Pariente, J.,
concurring in result). The effect of section 893.101 was to exclude “knowledge of
the illicit nature of a controlled substance” as an element of “any offense under this
chapter.” In Adkins, in the process of finding the statute constitutional, a majority
of the Court found that “knowledge of the presence” continued to be an element of
drug-related offenses. More recently, the Court observed:
In Adkins, a majority of the Court held that the guilty knowledge
element, in light of the express language in section 893.101, Florida
Statutes (2011), is limited to knowledge of the presence of the
substance sold, purchased, manufactured, delivered, or brought into
the state. [96 So. 3d] at 423. Knowledge of the illicit nature of the
controlled substance is, under the statute, an affirmative defense.
In re Std. Jury Instrs. in Crim. Cases—Instrs. 25.9–25.13, 112 So. 3d 1211, 1211
(Fla. 2013).
7
We agree with the Committee that the issue of whether knowledge of the
presence of the controlled substance is an element of a given offense may be a
legal issue that must be decided based on the provisions of the particular statute,
court decisions applying the statutes, and the circumstances of the case. But we do
not agree that trial judges should be told that under certain circumstances the lack
of knowledge of the presence of the substance should be treated as an affirmative
defense. This is contrary to what we said in Adkins and In re Standard Jury
Instructions. We therefore do not authorize those parts of the proposed
amendments that address the treatment of “knowledge of presence” by indicating
that under certain circumstances lack of knowledge of presence may be an
affirmative defense. The notes and comments proposed by the Committee that
address this point are not authorized for publication.4
With the changes noted above, we authorize the amended instructions for
publication and use as set forth in the appendix. New language is indicated by
underlining, and deleted language is indicated by struck-through type.5 In
4. With respect to Instruction 25.4 (Delivery to or Use of Minor), we
authorize the amendment adding “knowledge of presence” as an element, but not
the explanatory note or the comment.
5. 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
8
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 amended 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 Proceedings – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
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.
9
Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Sanford, Florida, and Judge Joseph Anthony
Bulone, Past Chair, Supreme Court Committee on Standard Jury Instructions in
Criminal Cases, Clearwater, Florida, and Bart Neil Schneider, Staff Liaison, Office
of the States Court Administrator, Tallahassee, Florida,
for Petitioner
10
APPENDIX
25.2 DRUG ABUSE – SALE, PURCHASE, MANUFACTURE, DELIVERY,
OR POSSESSION WITH INTENT TO SELL, PURCHASE,
MANUFACTURE, OR DELIVER
§ 893.13(1)(a) and (2)(a), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged), the State must prove the
following (applicable number) elements beyond a reasonable doubt:
1. (Defendant) [sold] [manufactured] [delivered] [purchased]
[possessed with intent to [sell] [manufacture] [deliver] [purchase]]
a certain substance.
[sold]
[purchased]
[manufactured]
[delivered]
[possessed with intent to sell]
[possessed with intent to purchase]
[possessed with intent to manufacture]
[possessed with intent to deliver]
a certain substance.
2. The substance was (specific substance alleged).
Give if possession is charged.
3. (Defendant) had knowledge of the presence of the substance.
Delivery of 20 Grams or Less of Cannabis without consideration is a
misdemeanor. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery
of More Than 20 Grams of Cannabis, the jury must make a finding as to the
weight.
3. or 4. The cannabis weighed more than 20 grams.
Definitions. Give as applicable.
11
Cannabis. § § § 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.
Cannabis means all parts of any plant of the genus Cannabis, whether
growing or not and the seeds thereof.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person,
or
12
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the (defendant)
person has control, and the person has the ability to control the substance or
in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed.
13
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
substance and had the ability to control it if [he] [she] had joint control over
the place where the substance was located, and the substance was located in a
common area in plain view and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to (crime
charged). (Defendant) has raised this affirmative defense. However, y
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
14
of the presence of the controlled substance and exercised control or ownership
over the substance.was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of (crime charged).
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of (crime charged).
Lesser Included Offenses
SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION
WITH INTENT— 893.13(1)(a) and (2)(a)
CATEGORY CATEGORY TWO FLA. STAT. INS.
ONE NO.
None 893.13(6) 25.7
Possession of
a Controlled
Substance, if
Possession
With Intent is
charged
Delivery of 20 893.13(3) 25.2
Grams or Less
of Cannabis if
Delivery of
More than 20
Grams of
Cannabis is
charged
Attempt, except when delivery is charged 777.04(1) 5.1
If delivery of cannabis is charged 893.13(3)
If possession of cannabis is charged 893.13(6)(b)
15
If possession is charged and offense would 893.13(6)(a)
be a second degree felony under
893.13(1)(a)1
Comment
If the State alleges the defendant possessed cannabis, in an amount more
than 20 grams, with intent to sell, purchase, deliver, or manufacture the cannabis,
there will be both a felony necessary lesser-included offense of simple possession
and a misdemeanor lesser-included offense of simple possession. See Note §§
893.13(3) and 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery
without consideration of not more than 20 grams of cannabis.
If the State alleges the defendant possessed a controlled substance listed in
§ 893.03(1)(c)46.-50., 114.-142., 151.-159, or 166.-169., in an amount more than 3
grams, there will be both a felony necessary lesser-included offense of simple
possession and a misdemeanor necessary lesser-included offense of simple
possession. See § 893.13(6)(b).
There is no crime of Attempted Delivery because the definition of “delivery”
in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to
another.
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245], and 2014. See also
SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.3 DRUG ABUSE – SALE, PURCHASE, DELIVERY, OR POSSESSION
IN EXCESS OF TEN GRAMS
§ 893.13(1)(b), (2)(b), and (6)(c), Fla. Stat.
This instruction will have to be altered if a combination of substances is
alleged.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged), the State must prove the
following (applicable number) elements beyond a reasonable doubt:
16
1. (Defendant) [sold] [purchased] [delivered] [possessed] a certain
substance that weighed more than 10 grams.
[sold]
[purchased]
[delivered]
[possessed]
more than 10 grams of a certain substance.
2. The substance was (specific substance alleged).
Give if possession is charged
3. (Defendant) had knowledge of the presence of the substance.
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person,
or
17
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
18
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
substance and had the ability to control it if [he] [she] had joint control over
the place where the substance was located, and the substance was located in a
common area in plain view and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to (crime
charged). (Defendant) has raised this affirmative defense. However, y
19
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
of the presence of the controlled substance and exercised control or ownership
over the substance.was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of (crime charged).
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of (crime charged).
Lesser Included Offenses
SALE, PURCHASE, DELIVERY,OR POSSESSION OF MORE THAN IN
EXCESS OF 10 GRAMS — 893.13(1)(b), (2)(b), and (6)(c)
CATEGORY ONE CATEGORY TWO FLA. INS.
STAT. NO.
Sale, purchase, or delivery 893.13(1)(a) 25.2
of controlled substance if and (2)(a)
sale, purchase, or delivery
is charged
Possession of a controlled 893.13(6) 25.7
substance, if possession is
charged
Attempt, except when 777.04(1) 5.1
delivery is charged
If possession is charged 893.13(6)(a)
Comment
There is no crime of Attempted Delivery because the definition of “delivery”
in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to
another.
20
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245], and 2014. See also
SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.4 DRUG ABUSE – DELIVERY OF A CONTROLLED SUBSTANCE TO
OR USE OF MINOR
§ 893.13(4), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged), the State must prove the
following [three] [four] elements beyond a reasonable doubt:
Give 1a, 1b, or 1c as applicable.
1. a. [(Defendant) delivered a certain substance to a person under
the age of 18 years.]
b. [(Defendant) used or hired a person under the age of 18
years as an agent or employee in the sale or delivery of a
certain substance.]
c. [(Defendant) used a person under the age of 18 years to
assist in avoiding detection or apprehension for (violation of
chapter 893, Fla. Stat., alleged).]
2. The substance was (specific substance alleged).
3. (Defendant) was 18 years of age or older at the time.
4. (Defendant) had knowledge of the presence of the substance.
Definition.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
21
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to (crime
charged). (Defendant) has raised this affirmative defense. However, y
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
of the presence of the controlled substance and exercised control or ownership
over the substance.was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of (crime charged).
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of (crime charged).
Lesser Included Offenses
DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF A
MINOR — 893.13(4)
CATEGORY ONE CATEGORY TWO FLA. INS.
STAT. NO.
Sale, manufacture, 893.13(1)(a) 25.2
delivery, etc. Delivery of
a Controlled Substance
Attempt, except when 777.04(1) 5.1
delivery is charged
If possession is charged and 893.13(6)(a)
the offense would be a second
degree felony under
893.13(1)(a)1
If possession of cannabis is 893.13(6)(b)
charged
22
If delivery of cannabis is 893.13(3)
charged
Comment
There is no crime of Attempted Delivery because the definition of
“delivery” in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person
to another.
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], and 2007 [969 So. 2d 245], and 2014. See also SC03-629 [869 So. 2d 1205
(Fla. 2004)].
25.5 DRUG ABUSE – BRINGING A CONTROLLED SUBSTANCE INTO
THE STATE
§ 893.13(5), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged) Bringing a Controlled Substance
Into the State, the State must prove the following [two] [three] elements
beyond a reasonable doubt:
1. (Defendant) brought a certain substance into Florida.
2. The substance was (specific substance alleged).
3. (Defendant) had knowledge of the presence of the substance.
Definition.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means:
23
a. the controlled substance is in the hand of or on the person,
or
b. the controlled substance is in a container in the hand of or
on the person, or
c. the controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession means the controlled substance is in a place
over which the (defendant) has control, or in which the (defendant) has
concealed it.
In order to establish constructive possession of a controlled substance if
the controlled substance is in a place over which the (defendant) does not have
control, the State must prove the (defendant’s) (1) control over the controlled
substance and (2) knowledge that the controlled substance was within the
(defendant’s) presence.
Possession may be joint, that is, two or more persons may jointly possess
an article, exercising control over it. In that case, each of those persons is
considered to be in possession of that article.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to
24
Bringing a Controlled Substance Into the State. (Defendant) has raised this
affirmative defense. However, y
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
of the presence of the controlled substance and exercised control or ownership
over the substance.was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Bringing a Controlled Substance Into the State .
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of Bringing a Controlled Substance Into the
State.
Lesser Included Offenses
BRINGING A CONTROLLED SUBSTANCE INTO THE STATE –
893.13(5)
CATEGORY ONE CATEGORY TWO FLA. INS.
STAT. NO.
Sale, manufacture, 893.13(1)(a) 25.2
delivery, etc.
Attempt, except when 777.04(1) 5.1
delivery is charged
If possession is charged and 893.13(6)(a)
the offense would be a second
degree felony under
893.13(1)(a)1
If possession of cannabis is 893.13(6)(b
charged )
If delivery of cannabis is 893.13(3)
charged
25
Comment
This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84]
and 2007 [969 So. 2d 245], and 2014. See also SC03-629 [869 So. 2d 1205 (Fla.
2004)].
25.6 DRUG ABUSE – CONTRABAND SELL, MANUFACTURE, DELIVER,
OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR
DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS
§ 893.13(1)(c) – (f), and (h) Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged), the State must prove the
following [three] [four] elements beyond a reasonable doubt:
1. (Defendant) [sold] [manufactured] [delivered] [possessed with
intent to [sell] [manufacture] [deliver]] a certain substance.
[sold]
[manufactured]
[delivered]
[possessed with intent to sell]
[possessed with intent to manufacture]
[possessed with intent to deliver]
a certain substance.
Give 2a, or 2b as applicable. § 893.13(1)(c)-(f) and (h), Fla. Stat.
2.a. The [sale] [manufacture] [delivery] [possession with intent
to [sell] [manufacture] [deliver]] took place in, on, or within
1,000 feet of:
[the real property comprising a child care facility];
[the real property comprising a public or private [elementary],
[middle], or [secondary] school between the hours of 6:00 a.m.
and 12:00 midnight];.
26
[the real property comprising [a state, county, or municipal
park] [a community center] [a publicly-owned recreational
facility];
[the real property comprising a public or private college,
university, or other postsecondary educational institution];
[a physical place for worship at which a church or religious
organization regularly conducts religious services];
[a convenience business];
[the real property comprising a public housing facility];
[the real property comprising an assisted living facility].
§ 893.13(1)(c-f), Fla. Stat.
b. in, on, or within 1000 feet of [the real property comprising a
public housing facility] [the real property comprising a
public or private college, university, or other postsecondary
educational institution] [a state, county or municipal park]
[a community center] [a publicly owned recreation facility]
[a physical place for worship at which a church or religious
organization regularly conducts religious services] [a
convenience business].
3. The substance was (specific substance alleged).
4. (Defendant) had knowledge of the presence of the substance.
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
27
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a combination
of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
28
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
29
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the
substance and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
substance and had the ability to control it if [he] [she] had joint control over
the place where the substance was located, and the substance was located in a
common area in plain view and in the presence of the defendant.
Definitions. Give as applicable.
Child care facility. § 402.302 Fla. Stat.
“Child care facility” means any child care center or arrangement which
provides child care for more than five children unrelated to the operator and
which receives a payment, fee, or grant for any of the children receiving care.
It does not matter if the child care facility is operated for profit or as a
nonprofit operation.
Convenience business. § 812.171 Fla. Stat.
A “convenience business” means any place of business that is primarily
engaged in the retail sale of groceries, or both groceries and gasoline, and that
is open for business at any time between the hours of 11 p.m. and 5 a.m. The
term does not include any of the following: a business that is primarily a
restaurant, or one that always has at least five employees on the premises
after 11 p.m. and before 5 a.m., or one that has at least 10,000 square feet of
retail floor space. The term “convenience business” also does not include any
business in which the owner or members of [his] [her] family work between
the hours of 11 p.m. and 5 a.m.
Real property comprising a public housing facility. § 421.03(12) Fla. Stat.
The term “real property comprising a public housing facility” is defined
as the real property of a public corporation created as a housing authority by
statute.
30
Community Center. §893.13(1)(c) Fla. Stat.
The term “community center” means a facility operated by a nonprofit
community-based organization for the provision of recreational, social, or
educational services to the public.
Assisted living facility. § 429.02(5) Fla. Stat.
“Assisted living facility” means any building or buildings, section or
distinct part of a building, private home, boarding home, home for the aged,
or other residential facility, whether operated for profit or not, which
undertakes through its ownership or management to provide housing, meals,
and one or more personal services for a period exceeding 24 hours to one or
more adults who are not relatives of the owner or administrator.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and
(3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to (crime
charged). (Defendant) has raised this affirmative defense. However, y
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
of the presence of the controlled substance and exercised control or ownership
over the substance.was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of (crime charged).
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of (crime charged).
31
Lesser Included Offenses
DRUG ABUSE — CONTRABAND SELL, MANUFACTURE, DELIVER,
OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR
DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED
LOCATIONS
— 893.13(1)(c) – (f) and (h)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Drug abuse possession 893.13(6)(a) 25.7
Sale, Manufacture, or 893.13(1)(a) 25.2
Delivery of a
controlled substance, if
Sale, Manufacture, or
Delivery is charged
Possession of a None 893.13(6) 25.7
Controlled Substance,
if Possession with
Intent to Sell,
Manufacture, or
Deliver is charged
Comment
This instruction is based on section 893.13, Florida Statutes (1997), and
adapted from the standard instruction on sale of contraband near a school.
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], 2000 [765 So. 2d 692], and 2007 [969 So. 2d 245],
and 2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.7 DRUG ABUSE POSSESSION OF A CONTROLLED SUBSTANCE
§ 893.13(6)(a), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of (crime charged) Possession of a Controlled
Substance, the State must prove the following [three] [four] elements beyond a
reasonable doubt:
32
1. (Defendant) possessed a certain substance knew of the presence of
a substance.
2. The substance was (specific substance alleged). (Defendant)
exercised control or ownership over that substance.
3. (Defendant) had knowledge of the presence of the substance. The
substance was (specific substance alleged).
§ 893.13(6)(b) Fla. Stat.
The jury must make a finding as to weight if the defendant is charged with
possessing more than 20 grams of cannabis or more than 3 grams of a
substance listed in § 893.03(1)(c)46-50, 114-142, 151-159, or 166-169 Fla.
Stat.
4. The [cannabis weighed more than 20 grams] [(insert name of
substance listed in 893.03(1)(c)46-50 , 114-142, 151-159, or 166-169)
weighed more than three grams].
§ 893.13(6)(c) Fla. Stat.
The jury must make a finding as to weight if the defendant is charged with
violating § 893.13(6)(c) Fla. Stat.
4. The [(insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)]
[combination of (insert names of substances listed in 893.03(1)(a) or
893.03(1)(b)] [mixture containing (insert name of substance listed in
893.03(1)(a) or 893.03(1)(b)] weighed more than 10 grams.
Definitions.
Give if applicable. Cannabis. § § 893.02(3), 893.13(6)(b) Fla. Stat.
Cannabis means all parts of any plant of the genus Cannabis, whether
growing or not, and the seeds thereof [but does not include any resin extracted
from the plant].
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed. Possession may
be actual or constructive. There are two ways to exercise control: actual
possession and constructive possession.
33
Actual possession.
Actual possession means the person is aware of the presence of the
substance and:
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the person
(defendant) has control, and the person has the ability to control the substance.
or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of a substance and may jointly possess
an article exercising exercise control over it. In that case, each of those
persons is considered to be in possession of that article the substance.
34
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
substance and had the ability to control it if [he] [she] had joint control over
the place where the substance was located, and the substance was located in a
common area in plain view and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § F.S. 893.101(2)
and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to the
35
crime of Possession of a Controlled Substance. (Defendant) has raised this
affirmative defense. However, y
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) [he] [she] knew
of the presence of the substance and exercised control or ownership over the
substance. was in actual or constructive possession of the controlled
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Possession of a Controlled Substance.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of Possession of a Controlled Substance.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
POSSESSION OF A CONTROLLED SUBSTANCE – 893.13(6)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of Less 893.13(6)(b) 25.7
than 20 Grams of
Cannabis or
Possession of Less
than 3 Grams of a
Substance listed in
893.03(1)(c)46-50,
114-142, 151-159,
or 166-169, if the
felony level of these
substances is
charged
Attempt 777.04(1) 5.1
36
Comment
Note § 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery
without consideration of not more than 20 grams of cannabis.
Fla. Stat. §893.21
A person acting in good faith who seeks medical assistance for an
individual experiencing a drug-related overdose may not be prosecuted for
Possession of a Controlled Substance if the evidence of the possession was
obtained as a result of the person’s seeking medical assistance.
A special instruction is necessary when the defense is a mere involuntary or
superficial possession. See cases such as Hamilton v. State, 732 So. 2d 493 (Fla. 2d
DCA 1999) and Sanders v. State, 563 So. 2d 781 (Fla. 1st DCA 1990).
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245], and 2014. See also
SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.8 DRUG ABUSE – OBTAINING A CONTROLLED
SUBSTANCE BY FRAUD, ETC.
§ 893.13(7)(a)9, Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) is a controlled substance.
To prove the crime of Obtaining a Controlled Substance by
[Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], the State
must prove the following three elements beyond a reasonable doubt:
[Misrepresentation]
[Fraud]
[Forgery]
[Deception]
[Subterfuge]
the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) [acquired or obtained] [attempted to acquire or
obtain] possession of a certain substance.
37
2. The substance was (specific substance alleged).
3. (Defendant) [acquired or obtained] [attempted to acquire or
obtain] the substance by [misrepresentation] [fraud] [forgery]
[deception] [subterfuge].
[misrepresentation].
[fraud].
[forgery].
[deception].
[subterfuge].
Affirmative defense: Lack of kKnowledge of the illicit nature of the
controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense to the
crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud]
[Forgery] [Deception] [Subterfuge]. (Defendant) has raised this affirmative
defense. However, you are permitted to presume that (defendant) was aware
of the illicit nature of the controlled substance if you find that (defendant) was
in actual or constructive possession of the controlled substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that (defendant) was in actual or
constructive possession of the controlled substance. Read explanation of actual
and/or constructive possession, as applicable.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Obtaining a Controlled Substance by [Misrepresentation]
[Fraud] [Forgery] [Deception] [Subterfuge].
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of Obtaining a Controlled Substance by
[Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].
38
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], and 2007 [969 So. 2d 245], and 2014. See also SC03-629 [869 So. 2d 1205
(Fla. 2004)].
25.9 TRAFFICKING IN CANNABIS
§ 893.135(1)(a), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” Cannabis is a controlled substance.
To prove the crime of Trafficking in Cannabis, the State must prove the
following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] [sold] [purchased]
[manufactured] [delivered] [brought into Florida] a certain
substance.
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2. The substance was cannabis.
3. The cannabis [weighed more than 25 pounds] [constituted 300 or
more cannabis plants].
If applicable under the facts of the case and pursuant to § 893.135(2), Fla.
Stat., instructions on the following elements 1 and 2 should be given instead of
elements 1 and 2 above. For example, if it is alleged that the defendant intended to
39
sell heroin but actually sold cannabis, instructions on elements 1 and 2 below
would be given.
1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (an enumerated controlled substance in
§ 893.135(1), Fla. Stat.),.
2. The defendant actually [sold] [purchased] [manufactured]
[delivered] [brought into Florida] [possessed] cannabis.
Definitions. Give as applicable.
Cannabis. § 893.02(3), Fla. Stat.
“Cannabis” means all parts of any plant of the genus Cannabis whether
growing or not.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
40
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
41
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
A special instruction is necessary where the premises is jointly occupied and
the contraband is located in a common area, in plain view, and in the presence of
the owner or occupant. Give if applicable. See Duncan v. State, 986 So. 2d 653
(Fla. 4th DCA 2008).
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed. However, you may
infer that (defendant) knew of the presence of the substance and had the ability
to control it if [he] [she] had joint control over the place where the substance
was located, and the substance was located in a common area in plain view
and in the presence of the defendant.
42
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and
(3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense to Trafficking in Cannabis. The defendant (Defendant)
has raised this defense. You are permitted to presume that (defendant) was
aware of the illicit nature of the controlled substance if you find that
(defendant) was in actual or constructive possession of the controlled
substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proved, you should find [him] [her] guilty of Trafficking in
Cannabis.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her]not guilty of Trafficking in Cannabis.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Cannabis, you must
further determine by your verdict whether the State has proved beyond a
reasonable doubt that:
Enhanced penalty. See § 893.135(1)(a)1.-3., Fla. Stat. to verify the weights
or amounts specified in the statute, as determined by the date of the offense. Give
if applicable up to extent of charge.
a. [The cannabis weighed more than 25 pounds but less than 2,000
pounds.] [constituted 300 or more cannabis plants but not more than
2,000 cannabis plants.]]
43
b. [The cannabis [weighed 2,000 pounds or more but less than 10,000
pounds.] [constituted 2,000 or more cannabis plants but not more
than 10,000 cannabis plants.]]
c. [The cannabis [weighed 10,000 pounds or more.] [constituted 10,000
or more cannabis plants.]
Lesser Included Offenses
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession of a certain amount of
drugs. Each of these alternatives has its own statute for lower quantities of
controlled substances. Accordingly, before deciding the appropriate lesser-included
offenses, trial judges should review not only the evidence but also the charging
document to see what type of trafficking was alleged. For example, if a defendant
is charged only with Trafficking via Sale, then Possession of a Controlled
Substance should not be given as a lesser-included offense.
TRAFFICKING IN CANNABIS — 893.135(1)(a)
CATEGORY CATEGORY TWO FLA. STAT. INS.
ONE NO.
Trafficking 893.135(1)(a)1 25.9
offenses requiring and 2
lower quantities of
cannabis
*Possession of *893.13(6) 25.7
Cannabis, if
Trafficking via
Possession is
charged
Attempt, except when delivery or 777.04 5.1
conspiracy is charged
Comment
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession. The lesser-included
offenses depend on what is contained in the charging document and what is
44
supported by the evidence. For example, Possession of Cannabis is not a
necessarily lesser-included offense of Trafficking in Cannabis via Sale. However,
Possession of Cannabis is a necessarily-lesser included offense if the defendant is
charged with Trafficking via Possession.
* Possession of More Than 20 Grams of Cannabis is a third-degree felony.
Possession of Not More than 20 Grams of Cannabis is a first degree misdemeanor.
See § 893.13(6) Fla. Stat.
Delivery of Less than 20 Grams of Cannabis Without Consideration is a first
degree misdemeanor. See § 893.13(3) Fla. Stat.
There is no crime of Attempted Delivery because the definition of “delivery”
in §893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.
There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546
(Fla. 2d DCA 1975).
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917],
1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], and 2013
[112 So. 3d 1211], and 2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.10 TRAFFICKING IN COCAINE
§ 893.135(1)(b), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” Cocaine [or any mixture containing cocaine] is a controlled
substance.
To prove the crime of Trafficking in Cocaine, the State must prove the
following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] [sold] [purchased]
[manufactured] [delivered] [brought into Florida] a certain
substance.
[sold]
[purchased]
[manufactured]
[delivered]
45
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [cocaine] [a mixture containing cocaine].
3. The [cocaine] [mixture containing cocaine] weighed 28 grams or
more.
If applicable under the facts of the case and pursuant to § 893.135(2), Fla.
Stat., instructions on the following elements 1 and 2 should be given instead of
elements 1 and 2 above. For example, if it is alleged that the defendant intended to
sell heroin but actually sold cocaine, instructions on elements 1 and 2 below would
be given.
1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (an enumerated controlled substance in
§ 893.135(1), Fla. Stat.),.
2. The defendant actually [sold] [purchased] [manufactured]
[delivered] [brought into Florida] [possessed] cocaine or a mixture
containing cocaine.
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
46
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and:
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
47
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
48
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
A special instruction is necessary where the premises is jointly occupied and
the contraband is located in a common area, in plain view, and in the presence of
the owner or occupant. Give if applicable. See Duncan v. State, 986 So. 2d 653
(Fla. 4th DCA 2008).
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed. However, you may
infer that (defendant) knew of the presence of the substance and had the ability
to control it if [he] [she] had joint control over the place where the substance
was located, and the substance was located in a common area in plain view
and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable.§ 893.101(2) and
(3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense to Trafficking in Cocaine. The defendant (Defendant) has
raised this defense. You are permitted to presume that (defendant) was aware
of the illicit nature of the controlled substance if you find that (defendant) was
in actual or constructive possession of the controlled substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Trafficking in Cocaine.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her] not guilty of Trafficking in Cocaine.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
49
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Cocaine, you must
further determine by your verdict whether the State has further proved
beyond a reasonable doubt that:
Enhanced penalty. See § 893.135(1)(b)1.-2., Fla. Stat. to verify the weights
or amounts specified in the statute, as determined by the date of the offense. Give
if applicable up to extent of charge.
a. [The [cocaine][mixture containing cocaine] weighed 28 grams or
more but less than 200 grams.]
b. [The [cocaine][mixture containing cocaine] weighed 200 grams or
more but less than 400 grams.]
c. [The [cocaine][mixture containing cocaine] weighed 400 grams or
more but less than 150 kilograms.]
d. [The [cocaine][mixture containing cocaine] weighed 150 kilograms or
more.]
Lesser Included Offenses
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession of a certain amount of
drugs. Each of these alternatives has its own statute for lower quantities of
controlled substances. Accordingly, before deciding the appropriate lesser-included
offenses, trial judges should review not only the evidence but also the charging
document to see what type of trafficking was alleged. For example, if a defendant
is charged only with Trafficking via Sale, then Possession of a Controlled
Substance should not be given as a lesser-included offense.
50
TRAFFICKING IN COCAINE — 893.135(1)(b)1 & 2
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Trafficking offenses 893.135(1)(b)1 25.10
requiring lower
quantities of cocaine
Possession of Cocaine, 893.13(6)(a) 25.7
if Trafficking via
Possession is charged
Attempt except when 777.04 5.1
delivery or conspiracy is
charged
Comment
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession. The lesser-included
offenses depend on what is contained in the charging document and what is
supported by the evidence. For example, Possession of Cocaine is not a necessarily
lesser-included offense of Trafficking in Cocaine via Sale. However, Possession
of Cocaine is a necessarily-lesser included offense if the defendant is charged with
Trafficking via Possession.
There is no crime of Attempted Delivery because the definition of “delivery”
in §893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.
There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546
(Fla. 2d DCA 1975).
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007
[SC05-1434, October 25, 2007 969 So. 2d 245], and 2013 [112 So. 3d 1211], and
2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.11 TRAFFICKING IN [MORPHINE] [OPIUM] [OXYCODONE]
[HYDROCODONE] [HYDROMORPHONE] [HEROIN] [(SPECIFIC
SUBSTANCE ALLEGED)]
§ 893.135(1)(c), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” (Specific substance alleged) or any mixture containing (specific
substance alleged) is a controlled substance.
51
To prove the crime of Trafficking in [(specific substance alleged)], the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] [sold] [purchased]
[manufactured] [delivered] [brought into Florida] a certain
substance.
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [morphine] [opium] [oxycodone]
[hydrocodone] [hydromorphone] [heroin] [(specific substance
alleged)] [a mixture containing [morphine] [opium] [oxycodone]
[hydrocodone] [hydromorphone] [heroin] [(specific substance
alleged)].
3. The [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] [mixture
containing [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] weighed 4
grams or more.
If applicable under the facts of the case and pursuant to § 893.135(2), Fla.
Stat., instructions on the following elements 1 and 2 should be given instead of
elements 1 and 2 above. For example, if it is alleged that the defendant intended to
sell heroin but actually sold phencyclidine, instructions on elements 1 and 2 below
would be given.
1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (an enumerated controlled substance in §
893.135(1), Fla. Stat.),.
52
2. The defendant actually [sold] [purchased] [manufactured]
[delivered] [brought into Florida] [possessed] (specific substance
alleged) or a mixture containing (specific substance alleged).
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a combination
of extraction and chemical synthesis.
Possession.
To “possess”means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and:
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
53
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
54
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
A special instruction is necessary where the premises is jointly occupied and
the contraband is located in a common area, in plain view, and in the presence of
the owner or occupant. Give if applicable. See Duncan v. State, 986 So. 2d 653
(Fla. 4th DCA 2008).
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed. However, you may
infer that (defendant) knew of the presence of the substance and had the ability
to control it if [he] [she] had joint control over the place where the substance
was located, and the substance was located in a common area in plain view
and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and
(3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense to Trafficking in (Substance Alleged). The defendant
(Defendant) has raised this defense. You are permitted to presume that
(defendant) was aware of the illicit nature of the controlled substance if you
find that (defendant) was in actual or constructive possession of the controlled
substance.
55
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercisedcontrol or ownership over the
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Trafficking in (Substance Alleged).
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her]not guilty of Trafficking in (Substance Alleged).
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Illegal Drugs, you must
further determine by your verdict whether the State has proved beyond a
reasonable doubt that:
Enhanced penalty. See § 893.135(1)(c)1.-2., Fla. Stat. to verify the weights
or amounts specified in the statute, as determined by the date of the offense. Give
if applicable up to extent of charge.
a. [The [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] [mixture
containing [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [herioin] [(specific substance alleged)] weighed 4
grams or more but less than 14 grams.]
b. [The [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] [mixture
containing [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [herioin] [(specific substance alleged)] weighed 14
grams or more but less than 28 grams.]
c. [The [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] [mixture
56
containing [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [herioin] [(specific substance alleged)] weighed 28
grams or more but less than 30 kilograms.]
d. [The [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [heroin] [(specific substance alleged)] [mixture
containing [morphine] [opium] [oxycodone] [hydrocodone]
[hydromorphone] [herioin] [(specific substance alleged)] weighed 30
kilograms or more.]
Lesser Included Offenses
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession of a certain amount of
drugs. Each of these alternatives has its own statute for lower quantities of
controlled substances. Accordingly, before deciding the appropriate lesser-included
offenses, trial judges should review not only the evidence but also the charging
document to see what type of trafficking was alleged. For example, if a defendant
is charged only with Trafficking via Sale, then Possession of a Controlled
Substance should not be given as a lesser-included offense.
TRAFFICKING IN ILLEGAL DRUGS — 893.135(1)(c)1 and 2
CATEGORY ONE CATEGORY TWO FLA. STAT. INS.
NO.
Trafficking offenses 893.135(1)(c)1 25.11
requiring lower
quantities of illegal
drugs
Possession of a 893.13(6)(a) 25.7
Controlled Substance,
if Trafficking via
Possession is charged
Attempt except where 777.04 5.1
delivery or conspiracy is
charged
57
Comment
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession. The lesser-included
offenses depend on what is contained in the charging document and what is
supported by the evidence. For example, Possession of a Controlled Substance is
not a necessarily lesser-included offense of Trafficking in a Controlled Substance
via Sale. However, Possession of a Controlled Substance is a necessarily-lesser
included offense if the defendant is charged with Trafficking via Possession.
There is no crime of Attempted Delivery because the definition of “delivery”
in §893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.
There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546
(Fla. 2d DCA 1975).
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969
So. 2d 245], and 2013 [112 So. 3d 1211], and 2014. See also SC03-629 [869 So.
2d 1205 (Fla. 2004)].
25.12 TRAFFICKING IN PHENCYCLIDINE
§ 893.135(1)(d), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” Phencyclidine or any mixture containing phencyclidine is a
controlled substance.
To prove the crime of Trafficking in Phencyclidine, the State must
prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] [sold] [purchased]
[manufactured] [delivered] [brought into Florida] a certain
substance.
[sold]
[purchased]
[manufactured]
[delivered]
58
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [phencyclidine] [a mixture containing
phencyclidine].
3. The [phencyclidine] [mixture containing phencyclidine] weighed
28 grams or more.
If applicable under the facts of the case and pursuant to § 893.135(2), Fla.
Stat., instructions on the following elements 1 and 2 should be given instead of
elements 1 and 2 above. For example, if it is alleged that the defendant intended to
sell heroin but actually sold phencyclidine, instructions on elements 1 and 2 below
would be given.
1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (an enumerated controlled substance in §
893.135(1), Fla. Stat.),.
2. The defendant actually [sold] [purchased] [manufactured]
[delivered] [brought into Florida] [possessed] phencyclidine or a
mixture containing phencyclidine.
Definitions. Give as applicable.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
59
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person,
or
b. The controlled substance is in a container in the hand of or
on the person, or
c. The controlled substance is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
60
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
61
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
A special instruction is necessary where the premises is jointly occupied and
the contraband is located in a common area, in plain view, and in the presence of
the owner or occupant. Give if applicable. See Duncan v. State, 986 So. 2d 653
(Fla. 4th DCA 2008).
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed. However, you may
infer that (defendant) knew of the presence of the substance and had the ability
to control it if [he] [she] had joint control over the place where the substance
was located, and the substance was located in a common area in plain view
and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and
(3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense to Trafficking in Phencyclidine. The defendant
(Defendant) has raised this defense. You are permitted to presume that
(defendant) was aware of the illicit nature of the controlled substance if you
find that (defendant) was in actual or constructive possession of the controlled
substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Trafficking in Phencyclidine.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her]not guilty of Trafficking in Phencyclidine.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
62
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Phencyclidine, you
must further determine by your verdict whether the State has proved beyond
a reasonable doubt that:
Enhanced penalty. See § 893.135(1)(d)1.a.-c., Fla. Stat. to verify the
weights or amounts specified in the statute, as determined by the date of the
offense. Give if applicable up to extent of charge.
a. [The [phencyclidine][mixture containing phencyclidine] weighed 28
grams or more but less than 200 grams.]
b. [The [phencyclidine][mixture containing phencyclidine] weighed 200
grams or more but less than 400 grams.]
c. [The [phencyclidine][mixture containing phencyclidine] weighed 400
grams or more.]
Lesser Included Offenses
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession of a certain amount of
drugs. Each of these alternatives has its own statute for lower quantities of
controlled substances. Accordingly, before deciding the appropriate lesser-included
offenses, trial judges should review not only the evidence but also the charging
document to see what type of trafficking was alleged. For example, if a defendant
is charged only with Trafficking via Sale, then Possession of a Controlled
Substance should not be given as a lesser-included offense.
63
TRAFFICKING IN PHENCYCLIDINE — 893.135(1)(d)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Trafficking offenses 893.135(1)(d)1.a 25.9
requiring lower and b
quantities of
phencyclidine
Possession of a 893.13(6)(a) 25.7
Phencyclidine, if
Trafficking via
Possession is charged
Attempt except when 777.04(1) 5.1
delivery or conspiracy
is charged
Comment
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession. The lesser-included
offenses depend on what is contained in the charging document and what is
supported by the evidence. For example, Possession of Phencyclidine is not a
necessarily lesser-included offense of Trafficking in Phencyclidine via Sale.
However, Possession of Phencyclidine is a necessarily-lesser included offense if
the defendant is charged with Trafficking via Possession.
There is no crime of Attempted Delivery because the definition of “delivery”
in §893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.
There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546
(Fla. 2d DCA 1975).
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917],
1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112
So. 3d 1211], and 2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.13 TRAFFICKING IN METHAQUALONE
§ 893.135(1)(e), Fla. Stat.
Certain drugs and chemical substances are by law known as “controlled
substances.” Methaqualone or any mixture containing methaqualone is a
controlled substance.
64
To prove the crime of Trafficking in Methaqualone, the State must
prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly [possessed] [sold] [purchased]
[manufactured] [delivered ] [brought into Florida] a certain
substance.
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance.
2. The substance was [methaqualone] [a mixture containing
methaqualone].
3. The [methaqualone] [a mixture containing methaqualone]
weighed 200 grams or more.
If applicable under the facts of the case and pursuant to § 893.135(2), Fla.
Stat., instructions on the following elements 1 and 2 should be given instead of
elements 1 and 2 above. For example, if it is alleged that the defendant intended to
sell heroin but actually sold methaqualone, instructions on elements 1 and 2 below
would be given.
1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (an enumerated controlled substance in §
893.135(1), Fla. Stat.),.
2. The defendant actually [sold] [purchased] [manufactured]
[delivered] [brought into Florida] [possessed] methaqualone or a
mixture containing methaqualone.
Sell.
“Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.
65
Manufacture. § 893.02(13)(a), Fla. Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
Deliver. § 893.02(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not
there is an agency relationship.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
substance and :
a. The controlled substance is in the hand of or on the person, or
b. The controlled substance is in a container in the hand of or on
the person, or
c. The controlled substance is so close as to be within ready reach
and is under the control of the person.
Give if applicable.
Mere proximity to a controlled substance is not sufficient to establish
control over that controlled substance when it is not in a place over which the
person has control.
66
Constructive possession.
Constructive possession means the person is aware of the presence of
the substance, the controlled substance is in a place over which the
(defendant) person has control, and the person has the ability to control the
substance or in which the (defendant) has concealed it.
Give if applicable.
Mere proximity to a substance is not sufficient to establish control over
that substance when the substance is in a place that the person does not
control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance that was is in a place over which the
(defendant) [he] [she] does did not have control, the State must prove the
(defendant’s) (1) knew that the substance was within [his] [her] presence has
the control over the controlled substance and (2) knowledge that the
controlled substance was within the (defendant’s) presence exercised control or
ownership over the substance itself.
Joint possession.
Possession of a substance may be sole or joint, that is, two or more
persons may be aware of the presence of the substance and may jointly
possess an article, exercising exercise control over it. In that case, each of
those persons is considered to be in possession of that article the substance.
If a person has exclusive possession of a controlled substance,
knowledge of its presence may be inferred or assumed.
Inferences.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the substance, [or]
67
b. was within ready reach of the substance and the substance was under
[his] [her] control, [or]
c. had exclusive control of the place where the substance was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where a
substance was located, you may not infer [he] [[she] had knowledge of the
presence of the substance or the ability to control it, in the absence of other
incriminating evidence.
A special instruction is necessary where the premises is jointly occupied and
the contraband is located in a common area, in plain view, and in the presence of
the owner or occupant. Give if applicable. See Duncan v. State, 986 So. 2d 653
(Fla. 4th DCA 2008).
If a person does not have exclusive possession of a controlled substance,
knowledge of its presence may not be inferred or assumed. However, you may
infer that (defendant) knew of the presence of the substance and had the ability
to control it if [he] [she] had joint control over the place where the substance
was located, and the substance was located in a common area in plain view
and in the presence of the defendant.
Knowledge of the illicit nature of the controlled substance. Affirmative
defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and
(3), Fla. Stat.
Lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense to Trafficking in Methaqualone. The defendant
(Defendant) has raised this defense. You are permitted to presume that
(defendant) was aware of the illicit nature of the controlled substance if you
find that (defendant) was in actual or constructive possession of the controlled
substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
68
If from the evidence you are convinced beyond a reasonable doubt that
(defendant) knew of the illicit nature of the controlled substance, and all of the
elements of the charge have been proved, you should find (defendant) [him]
[her] guilty of Trafficking in Methaqualone.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) [him] [her]not guilty of Trafficking in Methaqualone.
Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).
You are permitted to infer that a person who sells a controlled
substance knows of its illicit nature.
See State v. Weller, 590 So. 2d 923 (Fla. 1991).
If you find the defendant guilty of Trafficking in Methaqualone, you
must further determine by your verdict whether the State has proved beyond
a reasonable doubt that:
Enhanced penalty. See § 893.135(1)(e)1.a.-c., Fla. Stat. to verify the
weights or amounts specified in the statute, as determined by the date of the
offense. Give if applicable up to extent of charge.
a. [The [methaqualone][mixture containing methaqualone] weighed
200 grams or more but less than 5 kilograms.]
b. [The [methaqualone][mixture containing methaqualone] weighed 5
kilograms or more but less than 25 kilograms.]
c. [The [methaqualone][mixture containing methaqualone] weighed 25
kilograms or more.]
Lesser Included Offenses
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession of a certain amount of
drugs. Each of these alternatives has its own statute for lower quantities of
controlled substances. Accordingly, before deciding the appropriate lesser-included
offenses, trial judges should review not only the evidence but also the charging
document to see what type of trafficking was alleged. For example, if a defendant
is charged only with Trafficking via Sale, then Possession of a Controlled
Substance should not be given as a lesser-included offense.
69
TRAFFICKING IN METHAQUALONE — 893.135(1)(e)1
CATEGORY CATEGORY TWO FLA. STAT. INS. NO.
ONE
Trafficking 893.135(1)(e)1.a 25.13
offenses requiring and b
lower quantities of
methaqualone
Possession of 893.13(6)(a) 25.7
Methaqualone, if
Trafficking via
Possession is
charged
Attempt except when delivery 777.04(1) 5.1
or conspiracy is charged
Comment
Trafficking can be committed by sale, purchase, manufacture, delivery,
bringing into this state, or actual or constructive possession. The lesser-included
offenses depend on what is contained in the charging document and what is
supported by the evidence. For example, Possession of Methaqualone is not a
necessarily lesser-included offense of Trafficking in Methaqualone via Sale.
However, Possession of Methaqualone is a necessarily-lesser included offense if
the defendant is charged with Trafficking via Possession.
There is no crime of Attempted Delivery because the definition of “delivery”
in §893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.
There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546
(Fla. 2d DCA 1975).
This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917],
1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112
So. 3d 1211], and 2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
70
25.14 DRUG ABUSE – USE OR POSSESSION WITH INTENT TO USE OF
DRUG PARAPHERNALIA
§ 893.147(1), Fla. Stat.
To prove the crime of Use or Possession With Intent to Use of Drug
Paraphernalia, the State must prove the following two elements beyond a
reasonable doubt:
1. (Defendant) used or had in [his] [her] possession with intent to use
drug paraphernalia knew of the presence of the drug
paraphernalia.
2. (Defendant) had knowledge of the presence of the drug
paraphernalia [used the drug paraphernalia] [or] [possessed the
drug paraphernalia with intent to use it] to:
[plant] [propagate] [cultivate] [grow] [harvest] [manufacture]
[compound] [convert] [produce] [process] [prepare] [test]
[analyze] [pack] repack] [store] contain] [conceal] a controlled
substance;
or
[inject] [ingest] [inhale] [or] [introduce] a controlled substance
into the human body.
Definitions.
Possession.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession of drug paraphernalia means the person is aware of
the presence of the drug paraphernalia and:
a. The drug paraphernalia is in the hand of or on the person,
71
or
b. The drug paraphernalia is in a container in the hand of or
on the person, or
c. The drug paraphernalia is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a paraphernalia is not sufficient to establish control
over that paraphernalia when it is not in a place over which the person has
control.
Constructive possession.
Constructive possession of drug paraphernalia means the person is
aware of the presence of the drug paraphernalia, the drug paraphernalia is in
a place over which the (defendant) person has control, and the person has the
ability to control the drug paraphernalia. or in which the (defendant) has
concealed it.
Give if applicable.
Mere proximity to drug paraphernalia is not sufficient to establish
control over that drug paraphernalia when the drug paraphernalia is in a
place that the person does not control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance is drug paraphernalia that was in a place
over which the (defendant) does [he] [she] did not have control, the State must
prove the (defendant’s) (1) knew that the drug paraphernalia was within [his]
[her] presence control over the controlled substance and (2) knowledge that
the controlled substance was within the (defendant’s) presence. exercised
control or ownership over the drug paraphernalia itself.
Joint possession.
Possession of drug paraphernalia may be sole or joint, that is, two or
more persons may be aware of the presence of the drug paraphernalia and
may jointly possess an article, exercising exercise control over it. In that case,
each of those persons is considered to be in possession of that article. the drug
paraphernalia.
72
If a person has exclusive possession of paraphernalia, knowledge of its
presence may be inferred or assumed.
If a person does not have exclusive possession of paraphernalia,
knowledge of its presence may not be inferred or assumed.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the drug paraphernalia, [or]
b. was within ready reach of the drug paraphernalia and the drug
paraphernalia was under [his] [her] control, [or]
c. had exclusive control of the place where the drug paraphernalia was
located,
you may infer that [he] [she] was aware of the presence of the drug
paraphernalia and had the ability to control it.
If (defendant) did not have exclusive control over the place where drug
paraphernalia was located, you may not infer [he] [[she] had knowledge of the
presence of the drug paraphernalia or the ability to control it, in the absence
of other incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
drug paraphernalia and had the ability to control it if [he] [she] had joint
control over the place where the drug paraphernalia was located, and the
drug paraphernalia was located in a common area in plain view and in the
presence of the defendant.
Drug Paraphernalia. § 893.145, Fla. Stat.
The term “drug paraphernalia” means all equipment, products, and
materials of any kind which are used, intended for use, or designed for use in
planting, propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, injecting,
73
ingesting, inhaling, or otherwise introducing into the human body a controlled
substance in violation of this chapter. It includes, but is not limited to:
Give specific definition as applicable.
1. Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing, or harvesting of any species of plant which
is a controlled substance or from which a controlled substance can be derived.
2. Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing controlled
substances.
3. Isomerization devices used, intended for use, or designed for use
in increasing the potency of any species of plant which is a controlled
substance.
4. Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness, or purity of, controlled
substances.
5. Scales and balances used, intended for use, or designed for use in
weighing or measuring controlled substances.
6. Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose used, intended for use, or designed
for use in cutting controlled substances.
7. Separation gins and sifters used, intended for use, or designed for
use in removing twigs and seeds from, or in otherwise cleaning or refining,
cannabis.
8. Blenders, bowls, containers, spoons, and mixing devices used,
intended for use, or designed for use in compounding controlled substances.
9. Capsules, balloons, envelopes, and other containers used, intended
for use, or designed for use in packaging small quantities of controlled
substances.
10. Containers and other objects used, intended for use, or designed
for use in storing or concealing controlled substances.
74
11. Hypodermic syringes, needles, and other objects used, intended
for use, or designed for use in parenterally injecting controlled substances into
the human body.
12. Objects used, intended for use, or designed for use in ingesting,
inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil
into the human body, such as:
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with
or without screens, permanent screens, hashish heads, or
punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Roach clips: meaning objects used to hold burning material, such
as a cannabis cigarette, that has become too small or too short to
be held in the hand.
f. Miniature cocaine spoons, and cocaine vials.
g. Chamber pipes.
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
Relevant factors. § 893.146, Fla. Stat.
75
In addition to all other logically relevant factors, the following factors
shall be considered in determining whether an object is drug paraphernalia:
1. Statements by an owner or by anyone in control of the object
concerning its use.
2. The proximity of the object, in time and space, to a direct
violation of this act.
3. The proximity of the object to controlled substances.
4. The existence of any residue of controlled substances on the
object.
5. Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom [he]
[she] knows, or should reasonably know, intend to use the object
to facilitate a violation of this act. The innocence of an owner, or
of anyone in control of the object, as to a direct violation of this
act shall not prevent a finding that the object is intended for use,
or designed for use, as drug paraphernalia.
6. Instructions, oral or written, provided with the object concerning
its use.
7. Descriptive materials accompanying the object which explain or
depict its use.
8. Any advertising concerning its use.
9. The manner in which the object is displayed for sale.
10. Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
11. Direct or circumstantial evidence of the ratio of sales of the object
or objects to the total sales of the business enterprise.
76
12. The existence and scope of legitimate uses for the object in the
community.
13. Expert testimony concerning its use.
Knowledge of the illicit nature of the controlled substance. Give if
applicable. § 893.101(2) and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense.
(Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled
substance if you find that (defendant) was in actual or constructive possession
of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the
illicit nature of the controlled substance, and all of the elements of the charge
have been proved, you should find (defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) not guilty.
Lesser Included Offenses
POSSESSION OF DRUG PARAPHERNALIA — 893.147(1)
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 [543 So. 2d
1205], 1992 [603 So. 2d 1175], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245],
and 2014. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].
77
25.15 DRUG ABUSE – DELIVERY, POSSESSION WITH INTENT TO
DELIVER, OR MANUFACTURE WITH
INTENT TO DELIVER DRUG PARAPHERNALIA
§ 893.147(2), Fla. Stat.
To prove the crime of (crime charged), the State must prove the
following (applicable number) three elements beyond a reasonable doubt:
1. (Defendant) [delivered] [possessed with intent to deliver]
[manufactured with intent to deliver] drug paraphernalia.
[delivered]
[possessed with intent to deliver]
[manufactured with intent to deliver]
drug paraphernalia.
Give only if possession is charged.
2. (Defendant) had knowledge of the presence of the drug
paraphernalia.
3. (Defendant) knew or reasonably should have known that the drug
paraphernalia would be used to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale or otherwise introduce a controlled substance into
the human body (specific substance alleged).
Definitions.
Possession. Give if possession with intent to deliver is charged.
To “possess” means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession of drug paraphernalia means the person is aware of
the presence of the paraphernalia and:
78
a. The drug paraphernalia is in the hand of or on the person,
or
b. The drug paraphernalia is in a container in the hand of or
on the person, or
c. The drug paraphernalia is so close as to be within ready
reach and is under the control of the person.
Give if applicable.
Mere proximity to a paraphernalia is not sufficient to establish control
over that controlled substance when it is not in a place over which the person
has control.
Constructive possession.
Constructive possession of drug paraphernalia means the person is
aware of the presence of the drug paraphernalia, the drug paraphernalia is in
a place over which the (defendant) person has control, and the person has the
ability to control the drug paraphernalia or in which the (defendant) has
concealed it.
Give if applicable.
Mere proximity to drug paraphernalia is not sufficient to establish
control over that drug paraphernalia when the drug paraphernalia is in a
place that the person does not control.
Give if applicable.
In order to establish (defendant’s) constructive possession of a controlled
substance if the controlled substance drug paraphernalia that was is in a place
over which the (defendant) [he] [she] does did not have control, the State must
prove the (defendant’s) (1) knew that the drug paraphernalia was within [his]
[her] presence has the control over the controlled substance and (2)
knowledge that the controlled substance was within the (defendant’s) presence
exercised control or ownership over the drug paraphernalia itself.
Joint possession.
Possession of drug paraphernalia may be sole or joint, that is, two or
more persons may be aware of the presence of the drug paraphernalia and
may jointly possess an article, exercising exercise control over it. In that case,
each of those persons is considered to be in possession of that article the drug
paraphernalia.
79
If a person has exclusive possession of a paraphernalia, knowledge of its
presence may be inferred or assumed.
If a person does not have exclusive possession of a paraphernalia,
knowledge of its presence may not be inferred or assumed.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of drug paraphernalia, [or]
b. was within ready reach of drug paraphernalia and the drug
paraphernalia was under [his] [her] control, [or]
c. had exclusive control of the place where drug paraphernalia was
located,
you may infer that [he] [she] was aware of the presence of the drug
paraphernalia and had the ability to control it.
If (defendant) did not have exclusive control over the place where the
drug paraphernalia was located, you may not infer [he] [[she] had knowledge
of the presence of the drug paraphernalia or the ability to control it, in the
absence of other incriminating evidence.
Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
drug paraphernalia and had the ability to control it if [he] [she] had joint
control over the place where the drug paraphernalia was located, and the
drug paraphernalia was located in a common area in plain view and in the
presence of the defendant.
Deliver. Give if delivery is charged. § 893.02(5), Fla.Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of paraphernalia, whether or not there is
an agency relationship.
80
Manufacture. Give if manufacture is charged. § 893.02(13)(a), Fla.Stat.
“Manufacture” means the production, preparation, packaging, labeling
or relabeling, propagation, compounding, cultivating, growing, conversion or
processing of a controlled substance, either directly or indirectly.
Manufacturing can be by extraction from substances of natural origin, or
independently by means of chemical synthesis. It can also be by a
combination of extraction and chemical synthesis.
Drug Paraphernalia. § 893.145, Fla. Stat.
The term “drug paraphernalia” means all equipment, products, and
materials of any kind which are used, intended for use, or designed for use in
planting, propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the human body a controlled
substance in violation of this chapter. It includes, but is not limited to:
Give specific definition as applicable.
1. Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing, or harvesting of any species of plant which
is a controlled substance or from which a controlled substance can be derived.
2. Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing controlled
substances.
3. Isomerization devices used, intended for use, or designed for use
in increasing the potency of any species of plant which is a controlled
substance.
4. Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness, or purity of, controlled
substances.
5. Scales and balances used, intended for use, or designed for use in
weighing or measuring controlled substances.
6. Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose used, intended for use, or designed
for use in cutting controlled substances.
81
7. Separation gins and sifters used, intended for use, or designed for
use in removing twigs and seeds from, or in otherwise cleaning or refining,
cannabis.
8. Blenders, bowls, containers, spoons, and mixing devices used,
intended for use, or designed for use in compounding controlled substances.
9. Capsules, balloons, envelopes, and other containers used, intended
for use, or designed for use in packaging small quantities of controlled
substances.
10. Containers and other objects used, intended for use, or designed
for use in storing or concealing controlled substances.
11. Hypodermic syringes, needles, and other objects used, intended
for use, or designed for use in parenterally injecting controlled substances into
the human body.
12. Objects used, intended for use, or designed for use in ingesting,
inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil
into the human body, such as:
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with
or without screens, permanent screens, hashish heads, or
punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Roach clips: meaning objects used to hold burning material, such
as a cannabis cigarette, that has become too small or too short to
be held in the hand.
f. Miniature cocaine spoons, and cocaine vials.
g. Chamber pipes.
82
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors
shall be considered in determining whether an object is drug paraphernalia:
1. Statements by an owner or by anyone in control of the object
concerning its use.
2. The proximity of the object, in time and space, to a direct
violation of this act.
3. The proximity of the object to controlled substances.
4. The existence of any residue of controlled substances on the
object.
5. Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom [he]
[she] knows, or should reasonably know, intend to use the object
to facilitate a violation of this act. The innocence of an owner, or
of anyone in control of the object, as to a direct violation of this
act shall not prevent a finding that the object is intended for use,
or designed for use, as drug paraphernalia.
6. Instructions, oral or written, provided with the object concerning
its use.
83
7. Descriptive materials accompanying the object which explain or
depict its use.
8. Any advertising concerning its use.
9. The manner in which the object is displayed for sale.
10. Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
11. Direct or circumstantial evidence of the ratio of sales of the object
or objects to the total sales of the business enterprise.
12. The existence and scope of legitimate uses for the object in the
community.
13. Expert testimony concerning its use.
Knowledge of the illicit nature of the controlled substance. Give if
applicable. § 893.101(2) and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense.
(Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled
substance if you find that (defendant) was in actual or constructive possession
of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the
illicit nature of the controlled substance, and all of the elements of the charge
have been proved, you should find (defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) not guilty.
84
Lesser Included Offenses
DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR
MANUFACTURE WITH INTENT TO DELIVER DRUG
PARAPHERNALIA — 893.147(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Possession of 893.147(1) 25.14
Drug Paraphernalia, if
Possession of Drug
Paraphernalia with
Intent is charged
Attempt, except when 777.04(1) 5.1
delivery is charged
Comment
This instruction was adopted in 1981 and amended in 1989 [543 So. 2d
1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245], and 2014. See also
SC03-629 [869 So. 2d 1205 (Fla. 2004)].
25.16 DRUG ABUSE – DELIVERY OF DRUG
PARAPHERNALIA TO A MINOR
§ 893.147(3)(a), Fla. Stat.
To prove the crime of Delivery of Drug Paraphernalia to a Minor, the
State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) delivered drug paraphernalia to (person alleged).
2. (Defendant) knew or reasonably should have known that the drug
paraphernalia would be used to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale or otherwise introduce a controlled substance into
the human body (specific substance alleged).
3. When the delivery was made, (defendant) was 18 years old or over
and (person alleged) was under 18 years old.
85
Definitions.
Deliver. § 893.02)(5), Fla. Stat.
“Deliver” or “delivery” means the actual, constructive, or attempted
transfer from one person to another of paraphernalia, whether or not there is
an agency relationship.
Drug Paraphernalia. § 893.145, Fla. Stat.
The term “drug paraphernalia” means all equipment, products, and
materials of any kind which are used, intended for use, or designed for use in
planting, propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the human body a controlled
substance in violation of this chapter. It includes, but is not limited to:
1. Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing, or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
2. Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
3. Isomerization devices used, intended for use, or designed for use
in increasing the potency of any species of plant which is a
controlled substance.
4. Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness, or purity
of, controlled substances.
5. Scales and balances used, intended for use, or designed for use in
weighing or measuring controlled substances.
6. Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose used, intended for use, or
designed for use in cutting controlled substances.
86
7. Separation gins and sifters used, intended for use, or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, cannabis.
8. Blenders, bowls, containers, spoons, and mixing devices used,
intended for use, or designed for use in compounding controlled
substances.
9. Capsules, balloons, envelopes, and other containers used, intended
for use, or designed for use in packaging small quantities of
controlled substances.
10. Containers and other objects used, intended for use, or designed
for use in storing or concealing controlled substances.
11. Hypodermic syringes, needles, and other objects used, intended
for use, or designed for use in parenterally injecting controlled
substances into the human body.
12. Objects used, intended for use, or designed for use in ingesting,
inhaling, or otherwise introducing cannabis, cocaine, hashish, or
hashish oil into the human body, such as:
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish
heads, or punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Roach clips: meaning objects used to hold burning material,
such as a cannabis cigarette, that has become too small or
too short to be held in the hand.
f. Miniature cocaine spoons, and cocaine vials.
g. Chamber pipes.
87
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
Relevant factors. § 893.146, Fla. Stat.
In addition to all other logically relevant factors, the following factors
shall be considered in determining whether an object is drug paraphernalia:
1. Statements by an owner or by anyone in control of the object
concerning its use.
2. The proximity of the object, in time and space, to a direct
violation of this act.
3. The proximity of the object to controlled substances.
4. The existence of any residue of controlled substances on the
object.
5. Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom he
knows, or should reasonably know, intend to use the object to
facilitate a violation of this act. The innocence of an owner, or of
anyone in control of the object, as to a direct violation of this act
shall not prevent a finding that the object is intended for use, or
designed for use, as drug paraphernalia.
6. Instructions, oral or written, provided with the object concerning
its use.
88
7. Descriptive materials accompanying the object which explain or
depict its use.
8. Any advertising concerning its use.
9. The manner in which the object is displayed for sale.
10. Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
11. Direct or circumstantial evidence of the ratio of sales of the object
or objects to the total sales of the business enterprise.
12. The existence and scope of legitimate uses for the object in the
community.
13. Expert testimony concerning its use.
Knowledge of the illicit nature of the controlled substance. Give if
applicable. § 893.101(2) and (3), Fla. Stat.
Knowledge of the illicit nature of the controlled substance is not an
element of the offense of (insert name of offense charged). Lack of knowledge
of the illicit nature of a controlled substance is an affirmative defense.
(Defendant) has raised this affirmative defense. However, you are permitted
to presume that (defendant) was aware of the illicit nature of the controlled
substance if you find that (defendant) was in actual or constructive possession
of the controlled substance.
If from the evidence you are convinced that (defendant) knew of the
illicit nature of the controlled substance, and all of the elements of the charge
have been proved, you should find (defendant) guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find
(defendant) not guilty.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
89
Comment
This instruction was adopted in 1981 and amended in 2007 [969 So. 2d 245]
and 2014.
25.17 CONTRABAND IN COUNTY DETENTION FACILITY
§ 951.22, Fla._Stat.
To prove the crime of (crime charged) Contraband in a County Detention
Facility, the State must prove the following two three elements beyond a
reasonable doubt:
1. (Defendant) had knowledge of the presence of an item.
[introduced contraband into]
[knowingly possessed contraband in]
[gave contraband to an inmate in]
[received contraband from an inmate in]
[took contraband from]
[attempted to take or send contraband from]
a county detention facility.
2. (Defendant) did not do so through regular channels as duly
authorized by the Sheriff or officer in charge of the facility.
Give as applicable.
a. introduced the item into a county detention facility.
b. possessed the item upon the grounds of a county detention facility.
c. gave the item to an inmate of a county detention facility.
d. received the item from an inmate of a county detention facility.
e. took the item from a county detention facility.
f. attempted to [take] [send] the item from a county detention facility.
3. The item was:
90
Give as applicable.
a. a written communication to give to or receive from an
inmate.
b. a recorded communication to give to or receive from an
inmate.
c. currency or coin to give to or receive from an inmate.
d. an article of [food] [clothing] to give to or receive from an
inmate.
e. a tobacco product.
f. a cigarette.
g. a cigar.
h. a beverage that causes or may cause an intoxicating effect.
i. a narcotic, hypnotic, or excitative drug or drug of any kind
or nature.
j. a controlled substance.
k. a firearm.
l. any instrumentality customarily used or which is intended
to be used as a dangerous weapon.
m. any instrumentality of any nature that may be or is
intended to be used as an aid in effecting or attempting to
effect an escape from a county facility.
The court now instructs you that for purposes of this offense,
"contraband" means:
Select definition depending upon item alleged.
[any currency or coin]
[any article of food or clothing]
[any written or recorded communication]
[any intoxicating beverage or beverage which causes or may
cause an intoxicating effect]
[any narcotic, hypnotic, or excitative drug]
91
[any drug of any kind, including nasal inhalators]
[sleeping pill, barbiturate]
[any controlled substance. [(Item alleged)] is a controlled
substance]
[any firearm]
[any instrumentality that may be or is intended to be used as
a dangerous weapon]
[any instrumentality that may be or is intended to be used as
an aid in attempting to escape].
Definitions.
Give in all cases. § 951.23(1)(a) Fla. Stat.
"County detention facility" means a county jail, a county stockade, a
county work camp, a county prison camp, a county residential probation
center, and any other place except a municipal detention facility used by a
county or county officer for the detention of persons charged with or convicted
of either felony or misdemeanor used by a county or county officer to detain
persons charged with or convicted of crimes, including the grounds thereof.
§ 951.23(1)(b) Fla. Stat.
“County residential probation center” means a county-operated facility
housing offenders serving misdemeanor sentences or first-time felony
sentences.
§ 951.23(1)(d) Fla. Stat.
“Municipal detention facility” means a city jail, a city stockade, a city
prison camp, and any other place except a county detention facility used by a
municipality or municipal officer for the detention of persons charged with or
convicted of violation of municipal laws or ordinances.
In event of municipal facility involved, see statute.
Definition. Give as applicable.
To "introduce" means to put inside or into.
Give when the evidence involves an inmate who is not in the facility.
It is unlawful to [give] [receive] a contraband item [to] [from] an inmate
of a county detention facility even if the inmate was outside the facility at the
time the contraband item was [given] [received].
Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
“Clothing” means things worn to cover the body and limbs.
92
Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
“Currency” means money or another commodity which is in circulation
as a medium of exchange.
Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA
1992).
A “weapon” is an instrument that is designed and constructed for use as
a weapon, or, if the instrument is capable of being used as a weapon, the
defendant used, threatened to use, or intended to use the instrument as a
weapon.
Give if tobacco product is alleged. § 210.25(11) Fla. Stat.
“Tobacco products” means loose tobacco suitable for smoking; snuff;
snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing
tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco,
and other kinds and forms of tobacco prepared in such manner as to be
suitable for chewing; but “tobacco products” does not include cigarettes or
cigars.
Give if cigarette is alleged. § 210.01(1) Fla. Stat.
“Cigarette” means any roll for smoking, except one of which the
tobacco is fully naturally fermented, without regard to the kind of tobacco or
other substances used in the inner roll or the nature or composition of the
material in which the roll is wrapped, which is made wholly or in part of
tobacco irrespective of size or shape and whether such tobacco is flavored,
adulterated or mixed with any other ingredient.
Give if a drug or controlled substance is alleged.
A “drug of any kind” includes [nasal inhalators] [sleeping pills]
[barbiturates] [a controlled substance]. (Name of drug or controlled substance)
is a [drug] [controlled substance].
Give if firearm is alleged. § 790.001(6) Fla. Stat.
“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].
93
Give if possession is alleged.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
object and
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person,
or
c. the object is so close as to be within ready reach and is
under the control of the person.
Constructive possession.
Constructive possession means the person is aware of the presence of
the object, the object is in a place over which the person has control, and the
person has the ability to control the object.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over
that object when the object is in a place that the person does not control.
Give if applicable.
In order to establish (defendant’s) constructive possession of an object
that was in a place [he] [she] did not control, the State must prove (defendant)
(1) knew that the object was within [his] [her] presence and (2) exercised
control or ownership over the object itself.
Joint possession.
Possession of an object may be sole or joint, that is, two or more persons
may be aware of the presence of an object and may jointly exercise control
over it. In that case, each of those persons is considered to be in possession of
that object.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the object, [or]
94
b. was within ready reach of the object and the object was under [his]
[her] control, [or]
c. had exclusive control of the place where the object was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where an
object was located, you may not infer [he] [[she] had knowledge of the
presence of the object or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
object and had the ability to control it if [he] [she] had joint control over the
place where the object was located, and the object was located in a common
area in plain view and in the presence of the defendant.
Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla.
Stat. Give if applicable.
Lack of knowledge of the illicit nature of a controlled substance is a
defense to possession of a controlled substance. Accordingly, the defendant is
not guilty of possessing a controlled substance if [he] [she] did not know of the
illicit nature of the substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised management, control, or ownership
over the substance.
If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proved, you should find [him] [her] guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find [him]
[her] not guilty of possession of a controlled substance.
Affirmative defense of permission. Give if the defendant has satisfied his or
her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1 st DCA
1983).
95
It is a defense to the crime of Contraband in a County Detention
Facility if the defendant used regular channels and was authorized by the
sheriff or officer in charge of the detention facility to [introduce][possess]
[give][receive][take][attempt to take or send] the contraband item [into]
[from] the facility. The defendant has raised this defense.
If you have a reasonable doubt as to whether the defendant used regular
channels and had authorization from the sheriff or officer in charge of the
detention facility, you should find [him] [her] not guilty.
If the State proved beyond a reasonable doubt that the defendant did
not use regular channels or did not have authorization from the sheriff or
officer in charge of the detention facility, you should find [him] [her] guilty, if
all the elements of the charge have also been proven beyond a reasonable
doubt.
See 25.2 for definition of "possession."
Lesser Included Offenses
CONTRABAND IN COUNTY DETENTION FACILITIES — 951.22
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Possession of a 893.13(6) 25.7
Controlled Substance
if a controlled
substance is the
contraband alleged
Possession of less than 893.13(6)(b)
20 grams of cannabis
Carrying a Concealed 790.01(2) 10.1
Firearm
Carrying a Concealed 790.01(1) 10.1
Weapon
Attempt 777.04(1) 5.1
96
Comment
This instruction was adopted in 1987 and amended in 1989 [543 So. 2d 1205]
and 2014.
25.18 CONTRABAND IN JUVENILE [DETENTION FACILITY]
[COMMITMENT PROGRAM]
§ 985.4046 985.711, Fla._Stat.
To prove the crime of [introducing] [removing] [possession] of
contraband in a juvenile detention facility Contraband in Juvenile [Detention
Facility][Commitment Program], the State must prove the following two three
elements beyond a reasonable doubt:
1. (Defendant) had knowledge of the presence of an item.
[introduced contraband into]
[knowingly possessed contraband in]
[gave contraband to a juvenile offender in]
[took contraband from]
[attempted to take or send contraband from]
[sent contraband to]
a [juvenile detention facility] [juvenile commitment program].
2. (Defendant) did not do so as authorized by the [program policy]
[operating procedure] [facility superintendent] [program
director] [manager].
Give as applicable.
a. possessed an item while upon the grounds of a juvenile [detention
facility] [commitment program].
b. introduced the item into or upon the grounds of a juvenile
[detention facility] [commitment program].
c. [took] [attempted to take] [sent] [attempted to send] an item from
a juvenile [detention facility] [commitment program].
97
d. [transmitted] [attempted to transmit] an item to a juvenile
offender into or upon the grounds of a juvenile [detention facility]
[commitment program].
e. [caused][attempted to cause] an item to be [transmitted to]
[received by] a juvenile offender upon the grounds of a juvenile
[detention facility] [commitment program].
3. The item was:
Give as applicable.
a. an unauthorized article of [food] [clothing].
b. a beverage that causes or may cause an intoxicating effect.
c. a controlled substance. (Name of controlled substance alleged) is a
controlled substance.
d. a prescription or nonprescription drug that has a hypnotic,
stimulating, or depressing effect.
e. a firearm.
f. a weapon of any kind.
g. an explosive substance.
Definitions. Give as applicable.
§ 985.03(19), Fla._Stat.
A "juvenile detention facility" is a facility used pending court
adjudication or disposition or execution of a court order for the temporary
care of a child alleged or found to have committed a violation of law.
A "juvenile commitment program" is a facility used for the commitment
of adjudicated delinquents.
"Introduce" means to put inside or into.
Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
98
“Clothing” means things worn to cover the body and limbs.
Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA
1992).
A “weapon” is an instrument that is designed and constructed for use as
a weapon, or, if the instrument is capable of being used as a weapon, the
defendant used, threatened to use, or intended to use the instrument as a
weapon.
Give if firearm is alleged. § 790.001(6) Fla. Stat.
“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].
Give if possession is alleged.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
object and
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person,
or
c. the object is so close as to be within ready reach and is
under the control of the person.
Constructive possession.
Constructive possession means the person is aware of the presence of
the object, the object is in a place over which the person has control, and the
person has the ability to control the object.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over
that object when the object is in a place that the person does not control.
99
Give if applicable.
In order to establish (defendant’s) constructive possession of an object
that was in a place [he] [she] did not control, the State must prove (defendant)
(1) knew that the object was within [his] [her] presence and (2) exercised
management, control, or ownership over the object itself .
Joint possession.
Possession of an object may be sole or joint, that is, two or more persons
may be aware of the presence of an object and may jointly exercise control
over it. In that case, each of those persons is considered to be in possession of
that object.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the object, [or]
b. was within ready reach of the object and the object was under [his]
[her] control, [or]
c. had exclusive control of the place where the object was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
If (defendant) did not have exclusive control over the place where an
object was located, you may not infer [he] [[she] had knowledge of the
presence of the object or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
object and had the ability to control it if [he] [she] had joint control over the
place where the object was located, and the object was located in a common
area in plain view and in the presence of the defendant.
Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla.
Stat. Give if applicable.
100
Lack of knowledge of the illicit nature of a controlled substance is a
defense to possession of a controlled substance. Accordingly, the defendant is
not guilty of possessing a controlled substance if [he] [she] did not know of the
illicit nature of the substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proved, you should find [him] [her] guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find [him]
[her] not guilty of possession of a controlled substance.
Affirmative defense of permission. Give if the defendant has satisfied his or
her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1 st DCA
1983).
It is a defense to the crime of Contraband in Juvenile [Detention
Facility] [Commitment Program] if the defendant was authorized through
program policy or operating procedure or had the permission of the facility
superintendent, program director, or manager of the [detention facility]
[commitment program] to [possess] [introduce] [take] [attempt to take] [send]
[attempt to send] [transmit] [attempt to transmit] [cause to transmit] [attempt
to cause to transmit] the contraband item [into] [from] the facility. The
defendant has raised this defense.
If you have a reasonable doubt as to whether the defendant was
authorized through program policy or operating procedure or had the
permission of the facility superintendent, program director, or manager of the
[detention facility] [commitment program], you should find [him] [her] not
guilty of Contraband in a Juvenile [Detention Facility] [Commitment
Program].
If the State proved beyond a reasonable doubt that the defendant did
not have authorization through program policy or operating procedure or did
not have the permission of the facility superintendent, program director, or
101
manager of the [detention facility] [commitment program], you should find
[him] [her] guilty, if all the elements of the charge have also been proven
beyond a reasonable doubt.
"Introduce" means to put inside or into.
Possession
Possession may be actual or constructive.
Actual possession means:
a. The thing is in the hand of or on the person, or
b. The thing is in a container in the hand of or on the person, or
c. The thing is so close as to be within ready reach and is under the
control of the person.
Give if applicable.
Mere proximity to a thing is not sufficient to establish control over that
thing when the thing is not in a place over which the person has control.
Constructive possession means the thing is in a place over which the
person has control, or in which the person has concealed it.
Give if applicable. See Chicone v. State, 684 So. 2d 736 (Fla. 1996).
If a thing is in a place over which the person does not have control, in
order to establish constructive possession the State must prove the person's (1)
control over the thing, (2) knowledge that the thing was within the person's
presence, and (3) knowledge of the illicit nature of the thing.
For purposes of this offense, "contraband" means:
[any unauthorized article of food or clothing]
[any intoxicating beverage or any beverage that causes or
may cause an intoxicating effect]
[any controlled substance. (Substance alleged) is a controlled
substance.] See § 893.02(4), Fla.Stat.
102
[any prescription or nonprescription drug that has a
hypnotic, stimulating, or depressing effect]
[any firearm or weapon of any kind or any explosive
substance].
Give as applicable.
A "juvenile detention facility" is a facility used pending court
adjudication or disposition or execution of a court order for the temporary care
of a child alleged or found to have committed a violation of law.
A "juvenile commitment program" is a facility used for the commitment
of adjudicated delinquents.
Lesser Included Offenses
CONTRABAND IN JUVENILE FACILITY — 985.4046
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt (although 777.04(1) 5.1
some attempts are
included as elements)
Comment
This instruction is based on the text of § 985.4046, Fla.Stat. (1997). In
Chicone v. State, 684 So. 2d 736 (Fla. 1996), the court defined the elements of
constructive possession that apply if the defendant has no control over the place
where the contraband was found.
This instruction was adopted in March 2000 and amended in 2014.
25.20 POSSESSION OF CONTRABAND [IN] [UPON THE] GROUNDS OF
A STATE CORRECTIONAL INSTITUTION
§ 944.47(1)(c) Fla. Stat.
To prove the crime of Possession of Contraband [In] [Upon the
Grounds of] a State Correctional Facility, the State must prove the following
two elements beyond a reasonable doubt:
1. (Defendant) possessed
103
Give as applicable.
a. [written or recorded communication] [currency or coin] [an
article of [food][clothing]] that was [given or transmitted]
[intended to be given or transmitted] to an inmate of a state
correctional institution.
b. [an intoxicating beverage] [a beverage which causes or may cause
an intoxicating effect.]
c. a controlled substance. (Name of controlled substance) is a
controlled substance.
d. any prescription or non-prescription drug having a hypnotic,
stimulating, or depressing effect.
e. [a firearm] [a weapon of any kind] [an explosive substance].
f. any [cellular telephone] [portable communication device]
intentionally and unlawfully introduced inside the secure
perimeter of the state correctional institution.
2. At the time, (defendant) was [an inmate] [upon the grounds] of a state
correctional facility.
Give in all cases. § 944.02(8) Fla. Stat.
“State correctional facility” means any prison, road camp, prison
industry, prison forestry camp, or any prison camp or prison farm or other
correctional facility, temporary or permanent, in which prisoners are housed,
worked, or maintained, under the custody and jurisdiction of the Department
of Corrections.
Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
“Clothing” means things worn to cover the body and limbs.
Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
104
“Currency” means money or another commodity which is in circulation
as a medium of exchange.
Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA
1992).
A “weapon” is an instrument that is designed and constructed for use as
a weapon, or, if the instrument is capable of being used as a weapon, the
defendant used, threatened to use, or intended to use the instrument as a
weapon.
Give if firearm is alleged. § 790.001(6) Fla. Stat.
“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].
Give if portable communication device is alleged. § 944.47(1)(a)6 Fla. Stat.
The term “portable communication device” means any device carried,
worn, or stored which is designed or intended to receive or transmit verbal or
written messages, access or store data, or connect electronically to the Internet
or any other electronic device and which allows communications in any form.
Such devices include, but are not limited to, portable two-way pagers, hand-
held radios, cellular telephones, Blackberry-type devices, personal digital
assistants or PDA’s, laptop computers, or any components of these devices
which are intended to be used to assemble such devices. The term also
includes any new technology that is developed for similar purposes. [Excluded
from this definition is any device having communication capabilities which
has been approved or issued by the department for investigative or
institutional security purposes or for conducting other state business.]
Possession.
There are two ways to exercise control: actual possession and
constructive possession.
Actual possession.
Actual possession means the person is aware of the presence of the
object and
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person,
or
105
c. the object is so close as to be within ready reach and is
under the control of the person.
Constructive possession.
Constructive possession means the person is aware of the presence of
the object, the object is in a place over which the person has control, and the
person has the ability to control the object.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over
that object when the object is in a place that the person does not control.
Give if applicable.
In order to establish (defendant’s) constructive possession of an object
that was in a place [he] [she] did not control, the State must prove (defendant)
(1) knew that the object was within [his] [her] presence and (2) exercised
control or ownership over the object itself .
Joint possession.
Possession of an object may be sole or joint, that is, two or more persons
may be aware of the presence of an object and may jointly exercise control
over it. In that case, each of those persons is considered to be in possession of
that object.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the object, [or]
b. was within ready reach of the object and the object was under [his]
[her] control, [or]
c. had exclusive control of the place where the object was located,
you may infer that [he] [she] was aware of the presence of the substance
and had the ability to control it.
106
If (defendant) did not have exclusive control over the place where an
object was located, you may not infer [he] [[she] had knowledge of the
presence of the object or the ability to control it, in the absence of other
incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
object and had the ability to control it if [he] [she] had joint control over the
place where the object was located, and the object was located in a common
area in plain view and in the presence of the defendant.
Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla.
Stat. Give if applicable.
Lack of knowledge of the illicit nature of a controlled substance is a
defense to the crime of Possession of a Controlled Substance. Accordingly, the
defendant is not guilty of possessing a controlled substance if [he] [she] did not
know of the illicit nature of the substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proved, you should find [him] [her] guilty.
If you have a reasonable doubt on the question of whether (defendant)
knew of the illicit nature of the controlled substance, you should find [him]
[her] not guilty of possession of a controlled substance.
Affirmative defense: Authorization. Give if the defendant has satisfied his or
her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1 st DCA
1983).
107
It is a defense to the crime of Possession of Contraband [In] [Upon the
Grounds of] a State Correctional Facility if the defendant was authorized by
the officer in charge of the correctional institution to possess the item [in]
[upon the grounds of] a state correctional institution. The defendant has
raised this defense.
If you have a reasonable doubt as to whether the defendant had
authorization from the officer in charge of the correctional institution, you
should find [him] [her] not guilty.
If the State proved beyond a reasonable doubt that the defendant did
not have authorization from the officer in charge of the correctional
institution, you should find [him] [her] guilty, if all the elements of the charge
have also been proven beyond a reasonable doubt.
Lesser Included Offenses
POSSESSION OF CONTRABAND [IN] [UPON THE] GROUNDS OF
A STATE CORRECTIONAL INSTITUTION – 944.47(1)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a 893.13 25.7
Controlled Substance,
if a controlled
substance is the
contraband alleged
Possession of a 790.23 10.15
Firearm or a
Concealed Weapon By
a Convicted Felon, if a
firearm or concealed
weapon is the
contraband alleged and
the possessor is an
inmate.
Carrying a Concealed 790.01(2) 10.1
Firearm
Carrying a Concealed 790.01(1) 10.1
Weapon
Attempt 777.04(1) 5.1
108
Comment
This instruction was adopted in 2014.
25.21 [INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO]
[FROM] A STATE CORRECTIONAL INSTITUTION
§ 944.47(1)(a), Fla. Stat.
To prove the crime of [Introduction] [Removal] of Contraband [into]
[from] a State Correctional Institution, the State must prove the following
[three] [four] elements beyond a reasonable doubt:
1. (Defendant) [introduced into or upon the grounds of] [took]
[attempted to [take] [send]] an item [into] [from] a state correctional
institution.
2. (Defendant) had knowledge of the presence of the item.
3. The item was:
Give as applicable.
a. a [written] [recorded] communication.
b. [currency] [or] [coin].
c. an article of [food] [clothing].
d. an intoxicating beverage or a beverage which causes or may
cause an intoxicating effect.
e. a controlled substance. (Name of controlled substance) is a
controlled substance.
f. any prescription or nonprescription drug having a hypnotic,
stimulating, or depressing effect.
g. [a firearm] [a weapon of any kind] [an explosive substance].
109
h. any [cellular telephone] [or] [portable communication device]
intentionally and unlawfully introduced inside the secure
perimeter of a state correctional institution].
Give element #4 if element #3a, 3b, or 3c is given.
4. (Defendant) [gave or transmitted] [or] [intended to give or transmit]
the [written communication] [recorded communication] [currency]
[coin] [article of food] [article of clothing] to an inmate of the state
correctional institution.
Give in all cases. State Correctional Facility. § 944.02(8) Fla. Stat.
“State correctional facility” means any prison, road camp, prison
industry, prison forestry camp, or any prison camp or prison farm or other
correctional facility, temporary or permanent, in which prisoners are housed,
worked, or maintained, under the custody and jurisdiction of the Department
of Corrections.
Give if firearm is alleged. § 790.001(6) Fla. Stat.
“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].
Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
“Clothing” means things worn to cover the body and limbs.
Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA
1995).
“Currency” means money or another commodity which is in circulation
as a medium of exchange.
Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA
1992).
A “weapon” is an instrument that is designed and constructed for use as
a weapon, or, if the instrument is capable of being used as a weapon, the
defendant used, threatened to use, or intended to use the instrument as a
weapon.
110
Give if portable communication device is alleged. § 944.47(1)(a)(6) Fla.
Stat.
“Portable communication device” means any device carried, worn, or
stored which is designed or intended to receive or transmit verbal or written
messages, access or store data, or connect electronically to the Internet or any
other electronic device and which allows communications in any form. Such
devices include, but are not limited to, portable two-way pagers, hand-held
radios, cellular telephones, Blackberry-type devices, personal digital assistants
or PDA’s, laptop computers, or any components of these devices which are
intended to be used to assemble such devices. The term also includes any new
technology that is developed for similar purposes. [Excluded from this
definition is any device having communication capabilities which has been
approved or issued by the department for investigative or institutional
security purposes or for conducting other state business.]
Affirmative defense: Lack of knowledge of illicit nature. § 893.101(2) Fla.
Stat. Give if applicable.
Lack of knowledge of the illicit nature of a controlled substance is a
defense to this charge. Accordingly, the defendant is not guilty of this charge if
[he] [she] did not know of the illicit nature of the controlled substance.
You are permitted to presume that (defendant) was aware of the illicit
nature of the controlled substance if you find that [he] [she] knew of the
presence of the substance and exercised control or ownership over the
substance.
If you are convinced beyond a reasonable doubt that (defendant) knew
of the illicit nature of the controlled substance, and all of the elements of the
charge have been proven, you should find [him] [her] guilty.
If you have a reasonable doubt as to whether (defendant) knew of the
illicit nature of the controlled substance, you should find [him] [her] not
guilty.
Affirmative defense: Authorization. Give if the defendant has satisfied his or
her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1 st DCA
1983).
It is a defense to the crime of [Introduction] [Removal] of Contraband
[into] [from] a State Correctional Institution if the defendant used regular
channels and was authorized by the officer in charge of the correctional
111
institution to [introduce][take][send] the item [into] [from] the state
correctional institution. The defendant has raised this defense.
If you have a reasonable doubt as to whether the defendant used regular
channels and had authorization from the officer in charge of the correctional
institution, you should find [him] [her] not guilty.
If the State proved beyond a reasonable doubt that the defendant did
not use regular channels or did not have authorization from the officer in
charge of the correctional institution, you should find [him] [her] guilty, if all
the elements of the charge have also been proven beyond a reasonable doubt.
Lesser Included Offenses
[INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO]
[FROM] A STATE CORRECTIONAL INSTITUTION – 944.47(1)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Possession of a 893.13 25.7
Controlled Substance,
if a controlled
substance is the
contraband alleged
Possession of a 790.23 10.15
Firearm or a
Concealed Weapon By
a Convicted Felon, if a
firearm or concealed
weapon is the
contraband alleged and
and the possessor is an
inmate.
Carrying a Concealed 790.01(2) 10.1
Firearm
Carrying a Concealed 790.01(1) 10.1
Weapon
Comment
This instruction was adopted in 2014.
112