In Re Stan. Jury Instr. in Criminal Cases , 543 So. 2d 1205 ( 1989 )

543 So. 2d 1205 (1989)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES.

No. 73033.

Supreme Court of Florida.

March 30, 1989.

Harry Lee Coe, III, Chairman, Committee on Standard Jury Instructions (Criminal), Tampa, for petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted two petitions which propose amendments to the Florida Standard Jury Instructions in Criminal Cases. The petitions are set forth below, and the exhibits referred to therein are appended to the end of this opinion:

PROPOSED AMENDMENTS TO FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (88-1) ______________________________________

To: CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA

Your committee recommends the following revisions to the Florida Standard Jury Instructions in Criminal Cases. Most of the proposed revisions are the same as those published in the January 1, 1988, issue of the Florida Bar News. A few changes have been made based on responses to the proposals as published, and some additional proposals that the committee believes are noncontroversial have been added. Following the order in which the instructions appear in The Florida Bar's jury instructions manual, the changes recommended and the reasons for the changes are provided below. To the extent possible, wording to be deleted is indicated by strike through marks and wording to be added is underlined.

1. Page 39 of the Bar's manual provides an instruction on entrapment. Chapter 87-243, Section 42, Laws of Florida, creates Section 777.201, Florida Statutes, which redefines the entrapment defense. Instructions incorporating the new law are provided in Exhibit 1. The new instruction is for offenses occurring on or after October 1, 1987. The committee decided to retain the current instruction for use when the offense occurred before October 1, 1987. An additional proposed change to both of the instructions is the addition of a definition of "predisposition." In particular, the court's attention to the final paragraph of the new instruction is requested.

2. Pages 45c and 45d of the manual provide the current instruction on justifiable use of force by law enforcement officers. Chapter 87-147, Laws of Florida, amends Section 776.05, Florida Statutes, to redefine justifiable use of force by an officer. A revised instruction to reflect the statutory change is provided in Exhibit 2.

3. Pages 77 through 82 of the manual provide instructions on penalty proceedings in capital cases. Chapter 87-368, Section 1, Laws of Florida, creates Section 921.141(5)(j), Florida Statutes, which provides an additional aggravating circumstance to be considered by the jury. The committee therefore proposes the addition of paragraph 10 to the list on pages 78 and 79 of the manual as follows:

10. The victim of the crime for which defendant is to be sentenced was a law enforcement officer engaged in the performance of the officer's official duties.

4. Page 97 of the manual provides for the offense of carrying concealed weapons. A change to paragraph 2 of that instruction is proposed as follows:

2. The (weapon alleged) was concealed from the ordinary sight of another person others who might casually observe the defendant.

Support for the current wording comes from Ensor v. State, 403 So. 2d 349, 354 (Fla. 1981), but the committee believes that the instruction should be amended to conform to the statutory definition of "concealed weapon" in Section 790.001(3)(a), Florida Statutes (1987).

5. Page 98 of the manual provides an instruction based on Section 790.05, Florida Statutes (1981). That law was repealed in 1987; therefore, the instruction should be removed. See Chapter 87-24, Laws of Florida.

6. Page 99 of the manual provides an instruction based on Section 790.07(1) and (2), Florida Statutes. A change in paragraph 1b is proposed as follows:

b. [carried a [weapon] [firearm], which was concealed from the ordinary sight of another person others who might casually observe him.]

The reason for this change is the same as the one in paragraph 4 above.

7. Page 102 provides an instruction on Section 790.15, Florida Statutes. The committee recommends amending paragraphs a and b of the instruction as follows:

a. [(Defendant) knowingly discharged a firearm in a public place.]

b. [(Defendant) knowingly discharged a firearm on the right of way of a paved road, highway or street.]

The word "knowingly" is included in paragraph c of the current instruction and should be inserted in paragraphs a and b as shown.

8. Regarding page 103 of the manual, paragraph 3b should be amended as follows:

b. [a disruption of governmental commerce.]

Although the wording of the Section 790.161, Florida Statutes, may be ambiguous, the committee believes that "governmental" modifies only "operations" and not "commerce."

9. Pages 111 and 112 provide instructions for Sections 790.221 and 790.23, Florida Statutes, respectively. The committee proposes the addition of a definition of "possess" to those instructions. The definition proposed is the same as the one used in the drug possession instructions. Exhibit 3 provides the full instructions with the definition of "possess" added. Paragraph 2 of the instruction on Section 790.23 also is amended to conform to the statute.

10. Page 147 provides an instruction on theft. Section 812.014, Florida Statutes, was amended by Chapter 87-376, Laws of Florida. A revised instruction to incorporate the changes in the law is provided in Exhibit 4.

11. The instructions on pages 150 and 151 cover dealing in stolen property. The effect of Section 812.028(3), Florida Statutes, is not provided for in the current instructions. The amendments shown in Exhibit 5 are intended to incorporate that statute.

12. The robbery instruction on page 155 of the manual needs to conform to Section 812.13, Florida Statutes, as amended by Chapter 87-315, Laws of Florida. Exhibit 6 provides the proposed instruction.

13. Pages 163 and 164 provide the instruction for contributing to delinquency and to dependency. The wording of the instruction on page 163 does not need to be revised. Most of the wording on page 164, however, is based on former delinquency and dependency definitions that have been revised several times. The committee intends to propose a revised instruction in the future but, for now, recommends the deletion of the instruction on page 164. Instead, a note should replace the instruction on that page as follows:

Note to Judge: Prepare the definition of "delinquency" or of "dependency" based on the statutory definitions in effect at the time of the alleged offense. See F.S. 39.01.

14. Page 216 provides an instruction on bookmaking. Section 849.25, Florida Statutes, was amended by Chapter 87-243, Section 48, Laws of Florida. A revised instruction incorporating the 1987 amendments is proposed. See Exhibit 7.

15. Pages 219 through 250 provide instructions for drug abuse and drug trafficking offenses under Chapter 893, Florida Statutes. Chapter 87-243, Laws of Florida, amends several statutes covered by those instructions. Revisions to the affected instructions are proposed. See Exhibit 8.

16. Currently there are no instructions for prosecutions under Chapter 895, Florida Statutes. Proposed instructions are provided in Exhibit 9.

17. Pages 261 and 262 provide a comment on the schedule of lesser included offenses. Based on changes in the law since 1981, the committee has revised the comment. See Exhibit 10 for the revised comment.

18. The "SCHEDULE OF LESSER INCLUDED OFFENSES" is provided on pages 263 through 284 of the manual. The committee has not reviewed each offense listed in the schedule in light of recent opinions that may affect the table. Nevertheless, some needed changes have been identified by the committee as shown in Exhibit 11.

Respectfully submitted, /s/ Harry Lee Coe III Harry Lee Coe, Chair PROPOSED AMENDMENTS TO FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (88-2) _________________________________________________________________

TO: CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA

Your committee met on November 18, 1988, to review 1988 legislation that affects the standard jury instructions. Several changes in the instructions are needed, and the committee believes they can be made without following the normal procedure of publishing proposed instructions in The Florida Bar News. The committee requests that those changes (provided below) be considered along with the proposals in the committee's previous report (88-1).

1. The aggravating circumstances for the jury to consider in a capital offense are provided on pages 78 and 79 of the manual. An instruction on a new circumstance is proposed in the previous report (88-1). Chapter 88-381, § 10, Laws of Florida, created Section 921.141(5)(k), a new aggravating circumstance. The committee, therefore, proposes adding another new paragraph as follows:

11. The victim of the crime for which the defendant is to be sentenced was an elected or appointed official engaged in the performance of his official duties and the crime was related, in whole or in part, to the victim's official capacity.

2. Section 784.045, Florida Statutes, was amended by Chapter 88-344, § 3, Laws of Florida, to create a new aggravated battery offense. The committee, therefore, proposes that paragraph 2 of its instruction on page 90 of the manual be amended as follows:

2. (Defendant) in committing the battery

a. [intentionally or knowingly caused

[great bodily harm to (victim)]]

[permanent disability to (victim)]]

[permanent disfigurement to (victim)]]

b. [used a deadly weapon.]

c. [knew or should have known that (victim) was pregnant.]

3. The court in State v. Potts 526 So. 2d 63 (Fla. 1988) found section 790.07(2) "unconstitutional to the extent it purports to penalize a person who is under indictment." Paragraph 2 of the jury instruction on page 99 of the manual, therefore, should be amended by striking "[under indictment or information]" and by removing the brackets from "[committing or attempting to commit the felony of (felony alleged)]."

4. Section 790.161, Florida Statutes, was amended by Chapter 88-381, § 44, Laws of Florida. The instruction on page 103 of the manual, therefore, should be amended as shown in Exhibit 12, which incorporates another change suggested in the (88-1) report.

5. Section 790.162, Florida Statutes, was amended by Chapter 88-381, § 45, Laws of Florida. The instruction on page 104 of the manual, therefore, should be amended as shown in Exhibit 13.

6. Chapter 88-381, § 46, Laws of Florida, amends Section 806.111(1)(b), Florida Statutes, which defines "fire bomb." The definition in the instruction on page 129 of the manual should be amended to conform to the statute as follows:

"A ``fire bomb' is a container containing flammable liquid or combustible liquid, or any incendiary chemical mixture or compound, having a wick or similar device capable of being ignited or other means capable of causing ignition; but no device commercially manufactured primarily for the purpose of illumination, heating or cooking, shall be deemed to be such a fire bomb."

7. In Thomas v. State, 531 So. 2d 708 (Fla. 1988), the court overruled previous decisions that distinguished between common and uncommon devices as burglary tools. The instruction on page 138 of the manual should be revised to conform to that decision. Paragraph 2b of the instruction should be removed, and the instructions in the margin related to paragraph 2 should be deleted. The "a" in front of the remaining paragraph 2 also should be deleted.

8. Chapter 88-151, § 4, Laws of Florida, amends Section 827.04, Florida Statutes, concerning child abuse. The instruction on page 161 of the manual needs to be amended to conform to the statute. Paragraph 1 of the instruction, therefore, should be amended to read:

1. (Defendant) [willfully] [by culpable negligence] [knowingly]:

[[deprived (victim) of] [allowed (victim) to be deprived of] necessary food, clothing, shelter or medical treatment.] [inflicted or permitted the infliction of [physical] [mental] injury to (victim).]

9. Chapter 88-381, § 51, Laws of Florida, amends Section 843.02, Florida Statutes, concerning the offense of resisting an officer without violence. To conform the instruction to the statute, paragraph 1 on page 196 of the manual should be revised to read:

1. (Defendant) [resisted] [obstructed] [opposed] (victim).

10. Chapter 88-122, § 78, Laws of Florida, amended Section 951.23, Florida Statutes, adding "a county residential probation center" to the definition of "county detention facility." The instruction on page 257 of the manual should be amended to conform to the statute as shown in Exhibit 14.

11. The committee in its previous report (88-1) recommended the addition of a note regarding all drug trafficking offenses listed in the Schedule of Lesser Included Offenses. The note cites "Dauphin v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987), cert. pending (case No. 70,995, Fla.S.Ct.)." The correct case name actually is "Daophin v. State" but of more importance the decision of the district court was reversed on October 20, 1988. The note, therefore, should not be approved.

The committee is drafting other amendments to existing instructions and some new instructions based on 1988 legislation, all of which need to be published in the Bar News. Those instructions will be submitted no sooner than March 1989.

Respectfully submitted, /s/ Harry Lee Coe Harry Lee Coe, Chair

We approve for publication these recommended amendments.^[*] We caution all interested persons, however, that the notes and comments reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

EXHIBIT 1
3.04(c)(1) ENTRAPMENT
Note to Judge             This instruction is for offenses occurring before
October 1, 1987.
The defense of entrapment has been raised. This
means that (defendant) claims he had no prior
intention to commit the offense and that he
committed it only because he was persuaded or
caused to commit the offense by law enforcement
officers.
(Defendant) was entrapped if:
1. he had no prior intention to commit (crime
charged), but
2. he was persuaded, induced or lured into
committing the offense and
3. the person who persuaded, induced or lured him
into committing the offense was a law
enforcement officer, or someone acting for the
officer.
It is not entrapment if (defendant) had the
predisposition to commit (crime charged).
(Defendant) had the predisposition if, before any
law enforcement officer or person acting for the
officer persuaded, induced, or lured (defendant),
he had a readiness or willingness to commit (crime
charged) if the opportunity presented itself.
When claim of             However It is also not entrapment merely because a
entrapment no defense   law enforcement officer in a good faith attempt to
Give a, b or c as       detect crime:
applicable
a. [provided the defendant the opportunity, means
and facilities to commit the offense, which
the defendant intended to commit and would have
committed otherwise]
b. [used tricks, decoys or subterfuge to expose
the defendant's criminal acts.]
c. [was present and pretending to aid or assist in
the commission of the offense.]
On the issue of entrapment, the State must
convince you beyond a reasonable doubt that the
defendant was not entrapped.
(NEW INSTRUCTION)
3.04(c)(2) ENTRAPMENT
Note to Judge             This instruction is to be used for offenses
occurring on or after October 1, 1987.
The defense of entrapment has been raised.
(Defendant) was entrapped if
1. he was, for the purpose of obtaining evidence of
the commission of a crime, induced or encouraged
to engage in conduct constituting the crime of
(crime charged), and
2. he engaged in such conduct as the direct result
of such inducement or encouragement, and
3. the person who induced or encouraged him was a
law enforcement officer or a person engaged in
cooperating with or acting as an agent of a law
enforcement officer, and
4. the person who induced or encouraged him employed
methods of persuasion or inducement which created
a substantial risk that the crime would be
committed by a person other than one who was
ready to commit it, and
5. (Defendant) was not a person who was ready to
commit the crime.
It is not entrapment if (defendant) had the
predisposition to commit the (crime charged).
(Defendant) had the predisposition if before any
law enforcement officer or person acting
for the officer persuaded, induced, or lured
(defendant), he
                        had a readiness or willingness to commit (crime
charged) if the opportunity presented itself.
It is also not entrapment merely because a law
enforcement officer in a good faith attempt to
detect crime
(a) [provided the defendant the opportunity, means
and facilities to commit the offense, which the
defendant intended to commit and would have
committed otherwise.]
(b) [used tricks, decoys or subterfuge to expose the
defendant's criminal acts.]
(c) [was present and pretending to aid or assist in
the commission of the offense.]
On the issue of entrapment, the defendant must
prove to you by a preponderance of the evidence that
his criminal conduct occurred as the result of
entrapment.
EXHIBIT 2
3.04(f) JUSTIFIABLE USE OF FORCE
BY LAW ENFORCEMENT OFFICER
In making an arrest       A law enforcement officer, or any person he has
of a felon              summoned or directed to assist him, need not retreat
F.S. 776.05             from or stop efforts to make a lawful arrest because
of resistance or threatened resistance to the
arrest. The officer is justified in the use of any
Give if applicable      force that he reasonably believes necessary to
defend himself or another from bodily harm while
making the arrest. That force is also justifiable
when necessarily used:
1. in retaking a felon person who has been
convicted of a felony and who has escaped. or
2. in arresting a felon person who has been
convicted of a felony and who is fleeing from
justice.
Force in making           Use of any force by a law enforcement officer or
unlawful arrest         any person summoned or directed to assist the law
prohibited              enforcement officer is not justified if:
F.S. 776.051(2)
Give if                   1. The arrest is unlawful. and
applicable
2. It is known by the officer or the person
assisting him to be unlawful.
In making an arrest       1. In arresting a suspected felon who is fleeing
of a suspected               from justice, an law enforcement officer is
fleeing felon                justified in the can use of any force likely
Tennessee v. Garner          to cause death or great bodily harm. if
(U.S.Sup.Ct. 1985),
53 LW 4410
Give 1(a), or (b)            (a) the law enforcement officer has probable
or (c) as applicable             cause to reasonably believes that the
suspected fleeing felon poses a threat of
death or serious physical harm, either to
the officer or to others.; or
Define felon                 (b) the suspected felon has threatened the law
enforcement officer with a weapon.
(c) the law enforcement officer has probable
cause to reasonably believes that the
suspected fleeing felon has committed a
crime involving the infliction or the
threatened infliction of serious physical
harm to another person.
Read if 1(a), (b) or    If the law enforcement officer has an opportunity to
(c) given               do so he must give the suspected felon warning that
he is about to use force likely to cause death or
great bodily harm.
                    POSSESSION OF FORBIDDEN FIREARMS
F.S. 790.221
Before you can find the defendant guilty of (crime
charged), the State must prove the following two
elements beyond a reasonable doubt:
Elements                 1. (Defendant)
[owned]
[had in
his care,
custody,
possession
or control]
a (firearm
alleged).
2. The (firearm
alleged)
was one
that was,
or could
readily be
made, operable.
Defenses                  If you find that the (firearm alleged) was
lawfully owned and possessed under provisions of
the federal law, you shall find the defendant not
guilty.
This law does not apply to antique firearms.
Definitions; give as      "Care" and "custody" mean immediate charge and
applicable              control exercised by a person over the named object.
The terms care, custody and control may be used
interchangeable.
A ["short-barreled rifle"] ["short-barreled
shotgun"] ["machine gun"] is legally defined as
(adapt from F.S. 790.001(9), (10) or (11) as
required by the allegations).
An "antique firearm" is legally defined as (adapt
from F.S. 790.001(1) as required by the
allegations).
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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession
of a thing, knowledge of its presence may not be
inferred or assumed.
FELONS POSSESSING WEAPONS
F.S. 790.23
Before you can find the defendant guilty of (crime
charged), the State must prove the following two
elements beyond a reasonable doubt:
Elements                  1. (Defendant) had been convicted of (prior
offense).
2. After the conviction (defendant)
Give 2a or 2b as             a. [owned] [had in his care, custody,
applicable                      possession or control]
[a firearm.]
[an electric weapon or device]
[a concealed weapon.]
b. [carried a (weapon alleged), which was
concealed from the ordinary sight of another
person. others who might casually observe
him.]
Defense                   If you find that the defendant's civil rights had
been restored at the time of the offense, you shall
find the defendant not guilty.
Definitions               "Convicted" means that a judgment has been entered
in a criminal proceeding by a competent court
pronouncing the accused guilty.
A ["firearm"] ["electric weapon or device"]
["concealed weapon"] is legally defined as (adapt
from F.S. 790.001 as required by the allegations).
Give if 2b alleged        "Care" and "custody" mean immediate charge and
control exercised by a person over the named object.
The terms care, custody and control may be used
interchangeably.
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.
If a thing is in the hand of or on the person, or in
a bag or container in the hand of or on the person,
or is so close as to be within ready reach and is
under the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
EXHIBIT 4
THEFT
F.S. 812.014
Before you can find the defendant guilty of Theft,
the State must prove the following two elements
beyond a reasonable doubt:
Elements                  1. (Defendant) knowingly and unlawfully [obtained]
[used] [endeavored to obtain] [endeavored to
use] the (property alleged) of (victim).
2. He did so with intent to, either temporarily or
permanently,
[deprive (victim) of his right to the
property or any benefit from it.]
[appropriate the property of (victim) to his
own use or to the use of any person not
entitled to it.]
Degrees; give if        The punishment provided by law for the crime of
property is of          theft is greater depending upon the value of the
monetary value up to    property taken. Therefore, If you find the defendant
extent of charge        guilty of theft, you must determine by your verdict
whether:
a. [The value of the property taken was $100,000 or
more.]
                          a.b. [The value of the property taken was $20,000
or more but less than $100,000.]
b.c. [The value of the property taken was $300 or
more but less than $20,000.]
c.d. [The value of the property taken was less
than $300.]
Give if applicable          e. [The property was [a will, codicil, or other
testamentary instrument.] [a firearm.] [a
motor vehicle.] [a horse.] [a cow.] [a pig.]
[a kind of livestock.] [a fire extinguisher.]
[2000 or more pieces of fruit.] [taken from a
posted construction site.]]
Inferences; give if       Proof that a person presented false identification
applicable              not current in respect to name, address, place of
F.S. 812.022(1)         employment or other material aspect in connection
with the leasing of personal property, or failed
to return leased property within 72 hours of the
termination of the leasing agreement, unless
satisfactorily explained, gives rise to an inference
that the property was obtained or is now used with
unlawful intent to commit theft.
Inferences; give         Proof of possession of recently stolen property,
if applicable          unless satisfactorily explained, give rise to an
F.S. 812.022(2)        inference that the person in possession of the
property knew or should have known that the
property had been stolen.
Definitions;             "Obtains or uses" means any manner of:
give if applicable
F.S. 812.012(2)
(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or
transfer of property.
(c) Obtaining property by fraud, willful
misrepresentation of a future act, or false
promise.
(d) 1. Conduct previously known as stealing;
larceny; purloining; abstracting;
embezzlement; misapplication;
misappropriation; conversion; or
obtaining money or property by false
pretenses, fraud, or deception; or
2. Other conduct similar in nature.
"Endeavor" means to attempt or try.
F.S. 812.012(3)          "Property" means anything of value, and includes:
real property, including things growing on,
affixed to and found in land;
tangible or intangible personal property,
including rights, privileges, interests and
claims; and
services.
F.S. 812.012(5)          "Services" means anything of value resulting from
a person's physical or mental labor or skill, or
from the use, possession or presence of property,
and includes:
repairs or improvements to property;
professional services;
private, public or government communication,
transportation, power, water or sanitation
services;
lodging accommodations; and
admissions to places of exhibition or
entertainment.
Note to Judge            It is error to inform the jury of a prior
conviction. Therefore, do not read the allegation
of prior conviction or send the information or
indictment into the jury room. The historical fact
of a previous conviction shall be determined by the
judge, and shall thereby fix the degree of the
crime. State of Florida v. Harris, 356 So. 2d 315
(Fla. 1978).
F.S. 812.012(9)          "Value" means
The market value of the property at the time and
place of the offense, or if that value cannot be
satisfactorily
                         ascertained, the cost of replacement of the
property within a reasonable time after the
offense.
In the case of a written instrument that does
not have a readily ascertainable market value,
such as a check, draft or promissory note, the
value is the amount due or collectible.
In the case of any other instrument that
creates, releases, discharges or otherwise
affects any valuable legal right, privilege or
obligation, the value is the greatest amount of
economic loss that the owner of the instrument
might reasonably suffer by virtue of the loss
of the instrument.
The value of a trade secret that does not have
a readily ascertainable market value is any
reasonable value representing the damage to the
owner suffered by reason of losing an advantage
over those who do not know of or use the trade
secret.
If the exact value of the property cannot be
ascertained, you should attempt to determine a
minimum value. If you cannot determine the
minimum value, you must find the value is less
than $100 $300.
Amounts of value of separate properties,
involved in thefts committed pursuant to one
scheme or course of conduct, whether the thefts
are from the same person or several person, may
be totaled in determining the grade of the
offense.
EXHIBIT 5
DEALING IN STOLEN PROPERTY (FENCING)
F.S. 812.019(1)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two
elements beyond a reasonable doubt:
Elements                  1. (Defendant) [trafficked in] [endeavored to
traffic in] (property alleged).
2. (Defendant) knew or should have known that
(property alleged) was stolen.
Definitions               "Property" means anything of value, and includes:
F.S. 812-012(3)
real property, including things growing on,
affixed to and found in land;
tangible or intangible personal property,
including rights, privileges, interests and
claims; and
services.
F.S. 812.012(6)           "Stolen property" means property that has been
812.028(3)              the subject of any criminally wrongful taking or if
the property has not been stolen, that it was
offered for sale to (defendant) as stolen property.
F.S. 812.012(7)           "Traffic" means:
to sell, transfer, distribute, dispense or
otherwise dispose of property; and
to buy, receive, possess, obtain control of or
use property with the intent to sell, transfer,
distribute, dispense or otherwise dispose of that
property.
DEALING IN STOLEN PROPERTY (ORGANIZING)
F.S. 812.019(2)
Before you can find the defendant guilty of (crime
charged), the State must prove the following two
elements beyond a reasonable doubt:
Elements                  1. (Defendant) [initiated] [organized] [planned]
[financed] [directed] [managed] [supervised]
the theft of (property alleged).
2. (Defendant) trafficked in the (property
alleged).
Definitions               "Property" means anything of value, and includes:
F.S. 812.012(3)
real property, including things growing on,
affixed on, affixed to and found in land;
tangible or intangible personal property,
including rights, privileges, interests and
claims; and
services.
F.S. 812.012(6)           "Stolen property" means property that has been the
812.028(3)              subject of any criminally wrongful taking or if the
property has not been stolen, that it was offered
for sale to (defendant) as stolen property.
F.S. 812.012(7)           "Traffic" means:
to sell, transfer, distribute, dispense or
otherwise dispose of property; and
to buy, receive, possess, obtain control of or
use property with the intent to sell, transfer,
distribute, dispense or otherwise dispose of that
property.
EXHIBIT 6
ROBBERY
F.S. 812.13
Before you can find the defendant guilty of
Robbery, the State must prove the following four
elements beyond a reasonable doubt:
Elements                  1. (Defendant) took the (money or property
described in charge) from the person or custody
of (person alleged).
2. The taking was by Force, violence, assault, or
by putting (person alleged) in fear was used in
the course of the taking.
3. The property taken was of some value.
4. (Defendant) took the (money or property
described in the charge) from the person or
custody of (person alleged) and at the time
of the taking intended to permanently deprive
(person alleged) of the (money or property).
The taking was with the intent to permanently
[deprive (victim) of his right to the property
or any benefit from it.] [appropriate the
property of (victim) to his own use or to the
use of any person not entitled to it.]
"In the course of the taking" means that the
act occurred prior to, contemporaneous with, or
subsequent to the taking of the property and
that the act and the taking of the property
constitute continuous series of acts or events.
Title to property         In order for a taking of property to be robbery,
it is not necessary that the person robbed be the
actual owner of the property. It is sufficient if
the victim has the custody of the property at the
time of the offense.
Force; give               The taking must be by the use of force or violence
if applicable           or by assault so as to overcome the resistance of
the victim, or by putting the victim in fear so that
he does not resist. The law does not require that
the victim of robbery resist to any particular
extent or that he offer any actual physical
resistance if the circumstances are such that he is
placed in fear of death or great bodily harm if he
does resist. But unless
                        prevented by fear there must be some resistance to
make the taking one done by force or violence.
Victim unconscious;       It is also robbery if a person, with intent to
give if applicable      take the property from a victim, administers any
substance to another so that the victim becomes
unconscious and then takes the property from the
person or custody of the victim.
Taking                    In order for a taking by force, violence or
putting in fear to be robbery, it is not necessary
that the taking be from the person of the victim. It
is sufficient if the property taken is under the
actual control of the victim so that it cannot be
taken without the use of force, violence or
intimidation directed against the victim.
Enhanced penalty;         The punishment provided by law for the crime of
give if applicable      robbery is greater if "in the course of committing
the robbery" the defendant carried some kind of
weapon. An act is "in the course of committing the
robbery" if it occurs in an attempt to commit
robbery or in flight after the attempt or
commission. Therefore, if you find the defendant
guilty of robbery, you must then consider whether
the State has further proved those aggravating
circumstances and reflect this in your verdict.
With a firearm                If you find that the defendant carried a
firearm in the course of committing the robbery,
you should find him guilty of robbery with a
firearm.
With a deadly                 If you find that the defendant carried a
weapon                      (deadly weapon described in charge) in the
course of committing the robbery and that the
(deadly weapon  described in charge) was a
deadly weapon, you should find him guilty of
robbery with a deadly weapon.
With other                    If you find that the defendant carried a
weapon                      weapon that was not a [firearm] [deadly weapon]
in the course of committing the robbery, you
should find him guilty of robbery with a weapon.
With no firearm               If you find that the defendant carried no
or weapon                   firearm or weapon in the course of committing
the robbery, but did commit the robbery, you
should find him guilty only of robbery.
Definitions                   A "firearm" is legally defined as (adapt from
F.S. 790.001 as required by allegations).
A weapon is a "deadly weapon" if it is used or
threatened to be used in a way likely to produce
death or great bodily harm.
A "weapon" is legally defined to mean any
object that could be used to cause death or
inflict serious bodily harm.
Also define "attempt" (see page 55).
EXHIBIT 7
BOOKMAKING
F.S. 849.25(1)
Before you can find the defendant guilty of
Bookmaking, the State must prove the following two
three elements beyond a reasonable doubt:
Elements                  1. (Defendant) was engaged in the business or
profession of gambling.
2. While so engaged, (defendant) took or
received a bet or wager.
3. The bet or wager was upon the result of [a
trial or contest of skill, speed, power, or
endurance of [man] or [beast.]]
                             [between men, beasts [fowl,] [motor vehicles]
or [mechanical apparatuses].]
[a chance, casualty, or unknown or contingent
event.]
F.S. 849.25(1)(b)         To determine whether (defendant) was engaged in
the offense of bookmaking the following factors
shall be considered:
1. Taking advantage of betting odds created to
produce a profit for the bookmaker or charging
a percentage on accepted wagers.
2. Placing all or part of accepted wagers with
other bookmakers to reduce the chance of
financial loss.
3. Taking or receiving more than five wagers in
any single day.
4. Taking or receiving wagers totaling more than
$500 in any single day, or more than $1,500 in
any single week.
5. Engaging in a common scheme with two or more
persons to take or receive wagers.
6. Taking or receiving wagers on both sides of a
contest at the identical point spread.
7. Any other factor relevant to establishing that
the operating procedures of such person are
commercial in nature.
Note to Judge           It is the committee's opinion that F.S. 849.25(1)(c)
is for the judge and not the jury. Therefore (1)(c)
should not be read to the jury.
EXHIBIT 8
DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY,
OR POSSESSION WITH INTENT
F.S. 893.13(1)(a)
Certain drugs and chemical substances are by law
known as "controlled substances." (Specific
substance alleged) is a controlled substance.
Before you can find the defendant guilty of (crime
charged), the State must prove the following
(applicable number) elements beyond a reasonable
doubt:
Elements                  1. (Defendant)
[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        3.  (Defendant) had knowledge of the presence of
is charged                   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 F.S.            "Manufacture" means the production, preparation,
893.02(11)(12)(a)         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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person
has control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Notes to Judge          1. Note F.S. 893.13(1)(f)(g) if the charge involves
possession or delivery without consideration of not
more than 20 grams of cannabis.
2. If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an additional
instruction may be required. See State v. Medlin,
273 So. 2d 394 (Fla. 1973).
DRUG ABUSE — SALE, PURCHASE, DELIVERY OR POSSESSION
IN EXCESS OF TEN GRAMS
F.S. 893.13(1)(b)
Note to Judge             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.
Before you can find the defendant guilty of (crime
charged), the State must prove the following
(applicable number) elements beyond a reasonable
doubt:
Elements                  1. (Defendant)
[sold]
[purchased]
[delivered]
[possessed]
more than ten grams of a certain substance.
2. The substance was (specific substance alleged).
Give if possession        3. (Defendant) had knowledge of the presence of
is charged                   the substance.
charged
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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an additional
instruction may be required. See State v. Medlin,
273 So. 2d 394 (Fla. 1973).
DRUG ABUSE — DELIVERY TO A MINOR
F.S. 893.13(1)(C)
Certain drugs and chemical substances are by law
known as "controlled substances." (Specific
substance alleged) is a controlled substance.
Before you can find the defendant guilty of (crime
charged), the State must prove the following three
elements beyond a reasonable doubt:
Elements                  1. a. [(Defendant) delivered a certain substance
to (person alleged)a person under the age
of eighteen years.]
Give la, lb                  b. [(Defendant) used or hired a person under
or lc as                        the age of eighteen years as an agent or
applicable                      employee in the sale or delivery of a
certain substance.]
c. [(Defendant) used a person under the age of
eighteen years to assist in avoiding
detection or apprehension for (violation of
F.S. Chapter 893 alleged).]
2. The substance was (specific substance alleged).
3. When the delivery was made (Defendant) was over
eighteen years old of age or older at the time.
and (person alleged) was under eighteen years
old.
Definitions F.S.        "Deliver" or "delivery" means the actual,
893.02(4)(5)            constructive, or attempted transfer from one person
to another of a controlled substance, whether or
not there is an agency relationship.
NEW INSTRUCTION
DRUG ABUSE — POSSESSION ON OR NEAR SCHOOL
F.S. 893.13(1)(e)
Before you can find the defendant guilty of (crime
charged) the State must prove the following three
elements beyond a reasonable doubt:
Elements                  1. (Defendant)
[sold
[purchased]
[manufactured]
[delivered]
[possessed with intent to sell]
                               [possessed with intent to purchase]
[possessed with intent to manufacture]
[possessed with intent to deliver]
2. a controlled substance (specific substance
alleged)
3. in, on, or within 1000 feet of the real
property comprising a public or private
elementary, middle, or secondary school.
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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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.
If a thing is in the hand of or on the person, or
in a bag or container in the hand of or on the
person, or is so close as to be within ready reach
and is under the control of the person, it is in
the actual possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an
additional instruction may be required. See State v.
Medlin, 273 So. 2d 394 (Fla. 1973).
DRUG ABUSE — POSSESSION
F.S. 893.13(1)(e)(f)
Certain drugs and chemical substances are by law
known as "controlled substances." (Specific
substance alleged) is a controlled substance.
Before you can find the defendant guilty of (crime
charged), the State must prove the following three
elements beyond a reasonable doubt:
Elements                  1. (Defendant) possessed a certain substance.
2. The substance was (specific substance alleged).
3. (Defendant) had knowledge of the presence of
the substance.
Definition                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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
                          If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may be inferred
or assumed.
Note to Judge             1. If the defense seeks to show a lack of
knowledge as to the nature of a particular drug, an
additional instruction may be required. See State v.
Medlin, 273 So. 2d 394 (Fla. 1973).
2. Note F.S. 893.13(1)(f)(g) if the charge
involves possession or delivery without
consideration of not more than 20 grams of cannabis.
TRAFFICKING IN CANNABIS
F.S. 893.135(1)(a)
Certain drugs and chemical substances are by law
known as "controlled substances." Cannabis is a
controlled substance.
Before you can find the defendant guilty of
Trafficking in Cannabis, the State must prove the
following three four elements beyond a reasonable
doubt:
Elements                  1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance
2. The substance was cannabis.
3. The quantity of the cannabis involved was in
excess of 100 pounds.
Note to Judge           If applicable, the judge should instruct the jury on
F.S. 893.135(2).
4. (Defendant) knew the substance was intended to
[sell] [purchase] [manufacture] [deliver] [bring
into Florida] [possess] (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 F.S.          "Manufacture" means the production, preparation,
893.02(11)(12)(a)       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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an
additional instruction may be required. See State v.
Medlin, 273 So. 2d 394 (Fla. 1973).
Enhanced penalty;         The punishment provided by law for the crime of
give if applicable      Trafficking in Cannabis is greater depending upon
up to extent of         the amount of the substance involved. Therefore,
charge                  If you find the defendant guilty of trafficking in
cannabis you must determine by your verdict whether:
a. [The quantity of the substance involved was in
excess of 100 pounds but less than 2,000
pounds.]
b. [The quantity of the substance involved was
2,000 pounds or more but less than 10,000
pounds.]
c. [The quantity of the substance involved was
10,000 pounds or more.]
TRAFFICKING IN COCAINE
F.S. 893.135(1)(b)
Certain drugs and chemical substances are by law
known as "controlled substances." Cocaine or any
mixture containing cocaine is a controlled
substance.
Before you can find the defendant guilty of
Trafficking in Cocaine, the State must prove the
following three four elements beyond a reasonable
doubt:
Elements                  1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance
2. The substance was [cocaine] [a mixture
containing cocaine].
3. The quantity of the substance involved was 28
grams or more.
Note to Judge           If applicable, the judge should instruct the jury on
F.S. 893.135(2).
4. (Defendant) knew the substance was intended to
[sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (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 F.S.          "Manufacture" means the production, preparation,
893.02(11)(12)(a)       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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person, or
is so close as to be within ready reach and is under
the control of the person, it is in the actual
possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an additional
instruction may be required. See State v. Medlin,
273 So. 2d 394 (Fla. 1973).
Enhanced penalty;         The punishment provided by law for the crime of
give if applicable      Trafficking in Cocaine is greater depending upon the
up to extent of         amount of the substance involved. Therefore, If you
charge                  find the defendant guilty of trafficking in
cocaine, you must determine by your verdict whether:
a. [The quantity of the substance involved was in
excess of 28 grams but less than 200 grams.]
b. [The quantity of the substance involved was 200
grams or more but less than 400 grams.]
c. [The quantity of the substance involved was 400
grams or more.]
TRAFFICKING IN ILLEGAL DRUGS
F.S. 893.135(1)(c)
Certain drugs and chemical substances are by law
known as "controlled substances." (specific
substance alleged) is a controlled substance.
Before you can find the defendant guilty of
Trafficking in Illegal Drugs, the State must prove
the following three four elements beyond a
reasonable doubt:
Elements                  1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance
                          2. The substance was [specific substance
alleged).] [a mixture containing (specific
substance alleged)].
3. The quantity of the substance involved was four
grams or more.
Note to Judge             If applicable, the judge should instruct the jury
on F.S. 893.135(2).
4. (Defendant) know the substance was intended to
[sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (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 F.S.          "Manufacture" means the production, preparation,
893.02(11)(12)(a)       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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or
in a bag or container in the hand of or on the
person, or is so close as to be within ready reach
and is under the control of the person, it is in the
actual possession of that person.
If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an
additional instruction may be required. See State v.
Medlin, 273 So. 2d 394 (Fla. 1973).
Enhanced penalty;         The punishment provided by law for the crime of
give if applicable      Trafficking in Illegal Drugs is greater depending
up to extent of         upon the amount of the substance involved.
charge                  Therefore, If you find the defendant guilty of
trafficking in illegal drugs, you must determine by
your verdict whether:
a.[The quantity of the substance involved was in
excess of 4 grams but less than 14
grams.]
b.[The quantity of the substance involved was 14
grams or more but less than 28
grams.]
c.[The quantity of the substance involved was 28
grams or more.]
                        TRAFFICKING IN PHENCYCLIDINE
F.S. 893.135(1)(d)
Certain drugs and chemical substances are by law
known as "controlled substances." Phencyclidine or
any mixture containing phencyclidine is a
controlled substance.
Before you can find the defendant guilty of
Trafficking in Phencyclidine, the State must prove
the following three four elements beyond a
reasonable doubt:
Elements                  1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance
2. The substance was [phencyclidine] [a mixture
containing phencyclidine].
3. The quantity of the phencyclidine involved was
28 grams or more.
Note to Judge             If applicable, the judge should instruct the jury
on F.S. 893.135(2).
4. (Defendant) knew the substance was intended to
[sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (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 F.S.          "Manufacture" means the production, preparation,
893.02(11)(12)(a)       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 F.S.              "Deliver" or "delivery" means the actual,
893.02(4)(5)            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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person,
or is so close as to be within ready reach and is
under the control of the person, it is in the
actual possession of that person.
If a thing is in a place over which the person
has control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an additional
instruction may be required. See State v. Medlin,
273 So. 2d 394 (Fla. 1973).
Enhanced penalty;         The punishment provided by law for the crime of
give if applicable      Trafficking in Phencyclidine is greater depending
up to extent of         upon the amount of the substance involved.
charge                  Therefore, If you find the defendant guilty of
trafficking in phencyclidine, you must determine by
your verdict whether:
a. [The quantity of the substance involved was in
excess of 28 grams but less than 200 grams.]
b. [The quantity of the substance involved was 200
grams or more but less than 400 grams.]
c. [The quantity of the substance involved was 400
grams or more.]
TRAFFICKING IN METHAQUALONE
F.S. 893.135(1)(e)
Certain drugs and chemical substances are by law
known as "controlled substances." Methaqualone or
any mixture containing methaqualone is a controlled
substance.
Before you can find the defendant guilty of
Trafficking in Methaqualone the State must prove the
following three four elements beyond a reasonable
doubt:
Elements                  1. (Defendant) knowingly
[sold]
[purchased]
[manufactured]
[delivered]
[brought into Florida]
[possessed]
a certain substance
2. The substance was [methaqualone] [a mixture
containing methaqualone].
3. The quantity of the methaqualone involved was
200 grams or more.
Note to Judge           If applicable, the judge should instruct the jury
on F.S. 893.135(2).
4. (Defendant) knew the substance was intended
to [sell] [purchase] [manufacture] [deliver]
[bring into Florida] [possess] (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 F.S.          "Manufacture" means the production, preparation,
893.02(11)(12)(a)       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                   "Deliver" or "delivery" means the actual,
F.S. 893.02(5)          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. If a
thing is in the hand of or on the person, or in a
bag or container in the hand of or on the person,
or is so close as to be within ready reach and is
under the control of the person, it is in the
actual possession of that person.
                          If a thing is in a place over which the person has
control or in which the person has hidden or
concealed it, it is in the constructive possession
of that person.
Possession may be joint, that is, two or more
persons may jointly have possession of 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 thing,
knowledge of its presence may be inferred or
assumed.
If a person does not have exclusive possession of
a thing, knowledge of its presence may not be
inferred or assumed.
Note to Judge             If the defense seeks to show a lack of knowledge
as to the nature of a particular drug, an additional
instruction may be required. See State v. Medlin,
273 So. 2d 394 (Fla. 1973).
Enhanced penalty;         The punishment provided by law for the crime
give if applicable      of Trafficking in Methaqualone is greater depending
up to extent of         upon the amount of the substance involved.
charge                  Therefore, If you find the defendant guilty of
trafficking in methaqualone you must determine
by your verdict whether:
a. [The quantity of the substance involved was
in excess of 200 grams but less than 5
kilograms.]
b. [The quantity of the substance involved was
5 kilograms or more but less than 25
kilograms.]
c. [The quantity of the substance involved was
25 kilograms or more.]
EXHIBIT 9
RICO — USE OR INVESTMENT OF PROCEEDS FROM PATTERN OF
RACKETEERING ACTIVITY
F.S. 895.03(1)
Before you can find the defendant guilty of
Unlawful Use or Investment of Proceeds from a
Pattern of Racketeering Activity, the State must
prove the following four elements beyond a
reasonable doubt:
Elements                  1. At least two of the following incidents
occurred (read incident alleged in
information).
Modify 1 and 2 if         2. Of those incidents which did occur, at least
only two incidents           two of them had the same or similar [intents]
alleged                      [results] [accomplices] [victims] [methods of
commission] or were interrelated by
distinguishing characteristics and were not
isolated incidents.
3. (Defendant) with criminal intent received
proceeds which were derived directly or
indirectly from such incidents.
4. (Defendant) [used] [invested] some of these
proceeds [or proceeds derived from the
investment or use thereof] either directly
or indirectly [in acquiring some right,
title, equity or interest in real property]
[in establishing or operating an enterprise].
Note to Judge             Instruct as to five-year limitation period
(F.S. 895.02(4)) if appropriate.
Note to Judge             Define the crimes alleged as incidents.
Definitions
Give in every             "Receiving proceeds with criminal intent" means
case                    that the defendant, at the time he received the
proceeds, either knew the source of the proceeds or
had his suspicions aroused but deliberately failed
to make further inquiry as to the source of the
proceeds.
Give as                   "Real property" means land and whatever is erected
applicable              on it. It includes but is not limited to any lease
F.S. 895.02(9)          or mortgage or other interest in that property.
Give as
applicable
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida, or
other legal entity, or any unchartered union,
association, or group of individuals associated
in fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA 1988) and
State v. Bowen, 413 So. 2d 798 (Fla. 1st DCA 1983),
rev. den. 424 So. 2d 760.
RICO — USE OR INVESTMENT OF PROCEEDS FROM FROM
COLLECTION OF UNLAWFUL DEBT
F.S. 895.03(1)
Before you can find the defendant guilty of
Unlawful Use or Investment of Proceeds from
Collection of Unlawful Debt, the State must prove
the following two elements beyond a reasonable
doubt:
Elements                  1. (Defendant) with criminal intent received
proceeds which were derived directly or
indirectly through the collection of an
unlawful debt.
2. (Defendant) [used] [invested] some of these
proceeds [or proceeds derived from the
investment or use thereof] either directly or
indirectly [in acquiring some right, title,
equity or interest in real property] [in
establishing or operating an enterprise].
Definitions
Give in every             "Receiving proceeds with criminal intent" means
case                    that the defendant, at the time he received the
proceeds, either knew the source of the proceeds or
had his suspicions aroused but deliberately failed
to make further inquiry as to the source of the
proceeds.
F.S. 895.02(2)            "Unlawful debt" means any money or other thing of
value constituting principal or interest of a debt
that is legally unenforceable in Florida in whole or
in part because the debt was incurred or contracted
in violation of the following law: (recite
applicable section and define crime).
Give as applicable
F.S. 895.02(9)            "Real property" means land and whatever is erected
on it. It includes but is not limited to any lease
or mortgage or other interest in that property.
Give as applicable
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida,
or other legal entity, or any unchartered union,
association, or group of individuals associated
in fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA
1988) and State v. Bowen, 413 So. 2d 798
(Fla. 1st DCA 1983), rev. den. 424 So. 2d 760.
RICO — ACQUISITION OR MAINTENANCE THROUGH PATTERN OF
RACKETEERING ACTIVITY
F.S. 895.03(2)
Before you can find the defendant guilty of
unlawfully [acquiring] [maintaining] and interest in
or control of [an enterprise] [real property], the
State must prove the following three elements beyond
a reasonable doubt:
Elements                  1. (Defendant) engaged in at least two of the
following incidents (read incident alleged in
information).
Modify 1 and 2            2. Of those incidents in which (defendant) was
if only two                  engaged, at least two of them had the same or
incidents                    similar [intents] [results] [accomplices]
alleged                      [victims] [methods of commission] or were
interrelated by distinguishing characteristics
and were not isolated incidents.
3. As a result of such incidents (defendant)
[acquired] [maintained], directly or
indirectly, interest in or control of [an
enterprise] [real property].
Note to Judge             Instruct as to five-year limitation period
(F.S. 895.02(4)) if appropriate.
Note to Judge             Define the crimes alleged as incidents.
Definitions
Give as applicable
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida, or
other legal entity, or any unchartered union,
association, or group of individuals associated
in fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA
1988) and State v. Bowen, 413 So. 2d 798
(Fla. 1st DCA 1983), rev. den. 424 So. 2d 760.
Give as applicable
F.S. 895.02(9)            "Real property" means land and whatever is erected
on it. It includes but is not limited to any lease
or mortgage or other interest in that property.
RICO — ACQUISITION OR MAINTENANCE THROUGH COLLECTION
OF UNLAWFUL DEBT
F.S. 895.03(2)
Before you can find the defendant guilty of
unlawfully [acquiring] [maintaining] and interest in
or control of [an enterprise] [real property], the
State must prove the following two elements beyond a
reasonable doubt:
Elements                  1. (Defendant) [acquired] [maintained], directly
or indirectly, interest in or control of [an
enterprise] [real property].
2. He did so through the knowing collection of an
unlawful debt.
Definitions
Give in every case        "Unlawful debt" means any money or other thing of
value constituting principal or interest of a debt
that is legally unenforceable in Florida in whole or
in part because the debt was incurred or contracted
in violation of the following law: (recite
applicable section and define crime).
Give as applicable
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida,
or other legal entity, or any unchartered union,
association, or group of individuals associated
in fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA
1988) and State v. Bowen, 413 So. 2d 798
(Fla. 1st DCA 1983), rev. den. 424 So. 2d 760.
Give as applicable
F.S. 895.02(9)            "Real property" means land and whatever is erected
on it.
It includes but is not limited to any lease or
mortgage or other interest in that property.
RICO — CONDUCT OR PARTICIPATION IN AN ENTERPRISE
THROUGH COLLECTION OF UNLAWFUL DEBT
F.S. 895.03(3)
Before you can find the defendant guilty of
unlawfully [conducting] [participating] in an
enterprise, the State must prove the following
two elements beyond a reasonable doubt:
Elements                  1. (Defendant) was [employed by] [associated with]
an enterprise.
Defendant may or          2. (Defendant) [conducted] [participated],
may not be                   directly or indirectly, in such enterprise
"enterprise."                through the knowing collection of an unlawful
See note below.              debt.
Definitions
F.S. 895.02(2)            "Unlawful debt" means any money or other thing of
value constituting principal or interest of a debt
that is legally unenforceable in Florida in whole or
in part because the debt was incurred or contracted
in violation of the following law: (recite
applicable section and define crime).
F.S. 895.01(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida, or
other legal entity, or any unchartered union,
association, or group of individuals associated
in fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA
1988) and State v. Bowen, 413 So. 2d 798
(Fla. 1st DCA 1983), rev. den. 424 So. 2d 760.
RICO — CONDUCT OR PARTICIPATION IN AN ENTERPRISE
THROUGH A PATTERN OF RACKETEERING ACTIVITY
F.S. 895.03(3)
Before you can find the defendant guilty of
unlawfully [conducting] [participating] in an
enterprise, the State must prove the following two
elements beyond a reasonable doubt:
Elements                  1. (Defendant) was [employed by] [associated with]
an enterprise.
Defendant may or          2. (Defendant) [conducted] [participated],
may not be                   directly or indirectly, in such enterprise by
"enterprise."                engaging in at least two of the following
See note below.              incidents (read incidents alleged in
information)
3. Of those incidents in which (defendant) was
engaged, at least two of them had the same or
similar [intents] [results] [accomplices]
[victims] [methods of commission] or were
interrelated by distinguishing characteristics
and were not isolated incidents.
Note to Judge             Instruct as to five-year limitation period
(F.S. 895.02(4)) if appropriate.
Note to Judge             Define the crimes alleged as incidents.
Definitions
Give as applicable
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida, or
other legal entity, or any unchartered union,
association, or group of individuals associated in
fact although not a legal entity, and includes
lawful as
                        well as unlawful enterprises and governmental as
well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA
1988) and State v. Bowen, 413 So. 2d 798
(Fla. 1st DCA 1983), rev. den. 424 So. 2d 760.
CONSPIRACY TO ENGAGE IN PATTERN OF RACKETEERING
ACTIVITY
F.S. 895.03(4)
A "conspiracy" is a combination or agreement of
two or more persons to join together to attempt to
accomplish an offense which would be in violation of
the law. It is a kind of "partnership in criminal
purposes" in which each member becomes the agent of
every other member.
The evidence in the case need not show that the
alleged members of the conspiracy entered into any
express or formal agreement or that they directly
discussed between themselves the details of the
scheme and its purpose or the precise ways in which
the purpose was to be accomplished. Neither must it
be proved that all of the persons charged to have
been members of the conspiracy were such nor that
the alleged conspirators actually succeeded in
accomplishing their unlawful objectives nor that any
alleged member of the conspiracy did any act in
furtherance of the conspiracy.
What the evidence in the case must show beyond a
reasonable doubt before you may find the defendant
guilty of conspiring to violate the RICO Act is:
1. Two or more persons, in some way or manner,
came to a mutual understanding to try to
accomplish a common and unlawful plan, namely
to engage in a "pattern of racketeering
activity" as charged in the Information; and
2. The defendant knowingly and willfully became a
member of such conspiracy; and
3. At the time the defendant joined such
conspiracy, he did so with the specific intent
either to personally engage in at least two
incidents of racketeering, as alleged in the
Information, or he specifically intended to
otherwise participate in the affairs of the
"enterprise" with the knowledge and intent that
other members of the conspiracy would engage in
at least two incidents of racketeering, as
alleged in the Information, as part of a
"pattern of racketeering activity."
A person may become a member of a conspiracy
without full knowledge of all of the details of the
unlawful scheme or the names and identities of all
of the other alleged conspirators. So, if a
defendant has an understanding of the unlawful
nature of a plan and knowingly and willfully joins
in that plan on one occasion, that is sufficient to
convict him for conspiracy, even though he did not
participate before and even though he played only a
minor part.
Of course, mere presence at the scene of a
transaction or event or the mere fact that certain
persons may have associated with each other and may
have assembled together and discussed common aims
and interests does not necessarily establish proof
of the existence of a conspiracy. Also, a person who
has no knowledge of a conspiracy but who happens to
act in a way which advances some purpose of a
conspiracy does not thereby become a conspirator.
Give if applicable        It is a defense to the charge of conspiracy to
Defense                 engage in a pattern of racketeering activity that
F.S. 777.04(5)(c)       (defendant), after knowingly
                        entering into such a conspiracy with one or more
persons, thereafter persuaded such persons not to
engage in such activity or otherwise prevented
commission of the offense. In this regard you are
instructed that a mere endeavor to dissuade one
from engaging in such activity is insufficient.
Note to Judge             An endeavor to dissuade a coconspirator is
insufficient to constitute the statutory defense of
withdrawal. State v. Bauman, 425 So. 2d 32, 34 (Fla.
4th DCA 1982).
Definitions:
"Pattern of racketeering activity" means engaging
in at least two incidents of racketeering conduct
that have the same or similar intents, results,
accomplices, victims, or methods of commission or
that otherwise are interrelated by distinguishing
characteristics and are not isolated incidents.
F.S. 895.02(3)            "Enterprise" means any individual, sole
proprietorship, partnership, corporation, business
trust, union chartered under the laws of Florida, or
other legal entity, or any unchartered union,
association, or group of individuals associated in
fact although not a legal entity, and includes
lawful as well as unlawful enterprises and
governmental as well as other entities.
Note to Judge             Whether an individual can be an enterprise see
State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA 1988)
and State v. Bowen, 413 So. 2d 798 (Fla. 1st DCA
1983), rev. den. 424 So. 2d 760.
EXHIBIT 10
COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make
certain that it is properly charged with respect to the degrees or
categories of guilt that may be applicable to a given crime. The supreme
court in Brown v. State, 206 So. 2d 377 (Fla. 1968) described these
categories as follows:
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged,
depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the
committee prepared a list of the offenses applicable to each of the crimes
for which standard jury instructions had been drafted. At the same time,
the committee recommended treating lesser degrees as category 3 or 4
offenses depending upon the offense and treating attempts as a category 4
offense, thereby eliminating the first two Brown categories as separate
categories. In its opinion dated April 16, 1981, in which it approved the
new standard jury instructions, the supreme court also approved the
schedule of lesser included offenses and accepted the recommendation of the
committee to consolidate the four Brown categories into two
categories. The supreme court directed that the four categories should be
renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will
include some lesser degrees of offenses
2. Offenses which may or may not be included in the offense charged,
depending on the accusatory pleading and the evidence, which will include
all attempts and some lesser degrees of offenses
The court also directed that the appropriate Florida Rules of Criminal
Procedure be amended to accommodate these changes. The categories of the
offenses which appear on the schedule of lesser included offenses have
been renumbered and designated according to the supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the
table, the committee followed certain guidelines:
1. No offense is deemed to be a lesser offense if it carries the same
penalty as the crime under consideration. See Ray v. State, 403 So. 2d 956
(Fla. 1981); State v. Carpenter, 417 So. 2d 986
(Fla. 1982).
  2. If the definition of the crime includes the attempt or the endeavor to
commit the crime, there can be no separate offense of an attempt to commit
that crime, e.g., uttering, forgery, grand theft second degree,
delivery of controlled substance.
3. Certain crimes do not have attempts, e.g., culpable negligence,
extortion, perjury, corruption by threat against public servant,
resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are
included unless the evidence conclusively shows that the charged crime was
completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced
if certain events occur during their commission.
For example, under F.S. 810.02 burglary is a felony of the first
degree if the burglar makes an assault or is armed with explosives or
dangerous weapons. If these events do not occur but burglary is committed in
a dwelling occupied by human beings, the offense is a felony of the second
degree. All other burglaries are felonies of the third degree. Thus, if a
defendant is charged with first degree burglary by virtue of having made an
assault during the course of the burglary, the jury should be permitted to
return a verdict for simple third degree burglary without the enhancement of
the assault. In practice, this is similar to the concept of lesser included
offenses, but since statutes of this type are couched in terms of
enhancement, the schedule does not carry the lower degrees of the offenses
proscribed by those statutes as lesser included offenses.
6. Under Knight v. State, 338 So. 2d 201 (Fla. 1976), felony
murder is included within a single indictment count of premeditated
murder. Therefore, first degree felony murder should be given if
requested by the state and if supported by the evidence, although it is
not a lesser included offense.
EXHIBIT 11
SCHEDULE OF LESSER INCLUDED OFFENSES
CHARGED OFFENSES            CATEGORY 1              CATEGORY 2
First degree             Second degree           Second degree
(premeditated) murder    (depraved mind)         (felony) murder —
— 782.04(1)              murder — 782.04(2)      782.04(3)
Manslaughter — 782.07   Third degree (felony)
murder — 782.04(4)
Attempt
Vehicular homicide —
782.071
Culpable negligence —
784.05(2)
Aggravated battery —
784.045
Aggravated assault —
784.021
Battery — 784.03
Assault — 784.011[**]
First degree (felony)    None                    Attempt
murder — 782.04(1)     Second degree           Second degree
(depraved               (depraved mind) murder
mind)[***] murder     — 782.04(2)
— 782.04(2)
Manslaughter — 782.07   Second degree
(felony) murder —
782.04(3)
Third degree (felony)
murder — 782.04(4)
                                                 Manslaughter — 782.07
Aggravated battery —
784.045
Aggravated assault —
784.021
Battery — 784.03
Assault —
784.011[****]
Second degree (depraved  Manslaughter — 782.07   Third degree (felony)
mind) murder —                                   murder — 782.04(4)
782.04(2)                                      Attempt
Vehicular homicide —
782.071
Culpable negligence —
784.05(2)
Aggravated battery —
784.045
Aggravated assault —
784.021
Battery — 784.03
Assault — 784.011[****]
Second degree (felony)   None                    Third degree
murder — 782.04(3)                               (felony) murder —
782.04(4)
Attempt
Third degree (felony)    None                    Attempt
murder — 784.04(4)
Aggravated assault —
784.021
Battery — 784.03
Assault — 784.011
Manslaughter — 782.07    None                    Attempt[******]
Aggravated assault —
784.021
Battery — 784.03
Assault — 784.011
Vehicular homicide —
782.071
Culpable negligence —
784.05(2)[*****]
Culpable negligence —
784.05(1)[*****]
Assault — 784.011        None                    Attempt
Aggravated assault —     Assault — 784.011       Attempt
784.021(1)(a)
Improper exhibition
of dangerous weapon
or firearms — 790.10
Discharging firearms
in public — 790.15
Aggravated assault —     Assault — 784.011       Attempt
784.021(1)(b)
Battery — 784.03         None                    Attempt
Aggravated battery —     Battery — 784.03        Attempt
784.045(1)(a)
Aggravated battery       Battery — 784.03        Attempt
— 784.045(1)(b)
Improper exhibition of
dangerous weapons or
firearms — 790.10
Discharging firearms in
public — 790.15
Culpable negligence      Culpable negligence     None
— 784.05(2)              — 784.05(1)
Assault of law           None                    Attempt
enforcement officer
— 784.07(2)
Assault —
784.011[*******]
Battery of law           None                    Attempt
enforcement officer
— 784.07(2)
Battery — 784.03[*******]
Kidnapping — 787.01      False                   Attempt
imprisonment —
787.02
Aggravated assault
— 784.021(1)(b)
Battery — 784.03(1)(a)
Assault — 784.011
False imprisonment       None                    Attempt
— 787.02
Assault — 784.011
Battery — 784.03(1)(a)
Carrying concealed       None                    Attempt
weapons — 790.01(1)
Carrying concealed       None                    Attempt
firearms — 790.01(2)
Carrying pistol or       None                    Attempt
repeating rifle
without first
obtaining license
— 790.05
790.06
Persons engaged in       None                    Attempt (may be applicable
criminal offense,                                when concealed weapon
having weapons                                   is charged)
— 790.07(1)
Carrying concealed weapons
— 790.01(1)
Improper exhibition of
dangerous weapons —
790.10
Persons engaged in       None                    Attempt (may be applicable
criminal offense,                                when concealed firearm
having weapons                                   is charged)
— 790.07(2)
Carrying concealed firearm
— 790.01(2)
Improper exhibition of
dangerous firearms —
790.10
Discharging firearms     None                    Attempt
in public — 790.15
Furnishing weapons to    None                    Attempt
minors under 18
years of age, etc. —
790.17
Selling arms to minors   None                    Attempt
by dealers — 790.18
Felons; possession of    None                    Attempt (may be applicable
firearms unlawful;                               when concealed weapon is
exception; penalty                               charged)
— 790.23
                                                 Carrying concealed firearm
— 790.01(2)
Carrying concealed weapon
— 790.01(1)
Sexual battery —         Battery — 784.03        Attempt
— 794.011(2)
Assault — 784.011
Aggravated assault
— 784.021(1)(a)
Aggravated battery
— 784.045(1)(a)
Sexual battery           Battery — 784.03        Attempt
— 794.011(3)
Aggravated battery
— 784.045(1)(a)
Aggravated assault
— 784.021(1)(a)
Assault — 784.011
Sexual battery — 794.011(4)
Sexual battery — 795.011(5)
Sexual battery           Battery — 784.03        Attempt
— 794.011(4)
Aggravated assault
— 784.021(1)(a)
Assault — 784.011
Sexual battery — 794.011(5)
Sexual battery           Battery — 784.03        Attempt
— 794.011(5)
Assault — 784.011
Unnatural and            None                    Attempt
lascivious act —
800.02
Exposure of sexual       None                    Unnatural and lascivious
organs — 800.03                                  act — 800.02
Lewd, lascivious, or     None                    Attempt
indecent assault or                            Assault — 784.011
act upon or in                                 Battery — 784.03
presence of child —                            Unnatural and lascivious
800.04                                           act — 800.02
Arson — 806.01(1)        Arson — 806.01(2)       Attempt
Criminal mischief       Criminal mischief —
— 806.13(1)(b)1         806.13(1)(b)2.
Criminal mischief —
806.13(1)(b)3.
Criminal mischief —
806.13(2)
Criminal mischief        None                    Attempt
— 806.13(1)(b)1
Criminal mischief        Criminal mischief       Attempt
— 806.13(1)(b)2          — 806.13(1)(b)1
Criminal mischief        Criminal mischief       Attempt
— 806.13(1)(b)3          — 806.13(1)(b)1
Criminal mischief
— 806.13(1)(b)2
Burglary with assault    Burglary — 810.02(3)    Attempt
or battery or while
armed — 810.02(2)
Burglary of dwelling or
with human being inside
— 810.02(3)
Trespass — 810.08(2)(a)
Trespass — 810.08(2)(c)
Burglary of dwelling or  Burglary — 810.02(3)    Attempt
with human being
inside — 810.02(3)
Trespass — 810.08(2)(a)
Trespass — 810.08(2)(b)
Burglary — 810.02(3)     None                    Attempt
Trespass — 810.08(2)(a)
Possession of burglary   None                    None
tools — 810.06
Trespass in structure    None                    Attempt (except refuse to
or conveyance —                                  depart)
810.08
Trespass on property     None                    Attempt
other than structure
or conveyance —
810.09
Grand theft —            None                    Grand theft — second degree
first degree                                     812.014(2)(b)
812.014(2)(a)                                  Grand theft — third degree
812.014(2)(c)
Petit theft — 812.014(2)(c)
Cf. Gilford v. State,
313 So. 2d 729 (Fla.
1975)
Trade secrets — 812.081
Grand theft — Second     None                    If value is alleged grand
degree 812.014(2)(b)                             theft — third degree
— 812.014(2)(c)
petit         theft
— 812.014(2)(c)(d)
Trade secrets — 812.081
Grand theft — third      None                    If value is alleged Petit
degree 812.014(2)(c)                             theft — 812.014(2)(c)(d)
Trade secrets — 812.081
Petit theft              None                    No attempt — endeavor is
812.014(2)(e)(d)                                 included within
definition of theft
Possession of altered    None                    Attempt
property — 812.016
Dealing in stolen        None                    None
property —
trafficking —
812.019(1)
Dealing in stolen        812.019(1)              Attempt
property — managing
trafficking —
812.019(2)
Robbery with a firearm   Robbery with a weapon   Attempt
or deadly weapon         — 812.13(2)(b)
— 812.13(2)(a)
Robbery — 812.13(2)(c)  Grand theft 1st degree
— 812.014(2)(a)
Petit          theft    Grand theft 2d degree
— 812.014(2)(e)(d)      — 812.014(2)(b)
Grand theft 3d degree
— 812.014(2)(c)
Battery — 784.03
Aggravated battery —
784.045
Assault — 784.011
Aggravated assault —
784.021
Extortion — 836.05
See Davis v. State,
277 So. 2d 300 (Fla. 2d
DCA 1973)
Robbery with a weapon    Robbery — 812.13(2)(c)  Attempt
— 812.13(2)(b)
Petit         theft     Grand theft 1st degree
— 812.014(2)(e)(d)      812.014(2)(a)
Grand theft 2d degree
812.014(2)(b)
Grand theft 3d degree
812.014(2)(c)
Battery — 784.03
Aggravated battery —
784.045
Assault — 784.011
Aggravated assault —
784.021
Extortion — 836.05
See Davis v. State,
277 So. 2d 300 (Fla. 2d
DCA 1973)
Robbery — 812.13(2)(c)   Petit         theft     Attempt
— 812.014(2)(c)(d)
Grand theft 1st degree
— 812.014(2)(a)
Grand theft 2d degree
— 812.014(2)(b)
Grand theft 3d degree
— 812.014(2)(c)
Battery — 784.03
Assault — 784.011
Aggravated assault —
784.021
Extortion — 836.05
See Davis v. State,
277 So. 2d 300(Fla. 2d
DCA 1973)
Child abuse —            Child abuse —           Attempt, if willfully
827.04(1)                827.04(2)             Negligent treatment of
child — 827.05
Child abuse —            None                    Attempt, if willfully
827.04(2)                                      Negligent treatment of
child — 827.05
Forgery — 831.01         None                    Attempt
Uttering forged          None                    No attempt — King v.
instrument — 831.02                              State, 317 So. 2d 852
(Fla.1st DCA 1975)
Stopping payment;        None                    Attempt, except when
purchase of farm or                              uttering is charged —
grove products —                                 832.04 under $50
832.04
Stopping payment with    None                    Attempt, except when
intent to defraud                                uttering is charged; —
— 832.041                                        832.04 if farm or grove
product; 832.041 under
$50
Worthless    check —
832.05(2) (second degree
misdemeanor)
Worthless    checks      None                    Attempt, except when
— 832.05(2)                                      uttering is charged
Obtaining property by    Worthless check         Attempt, except when
worthless checks         — 832.05(2) (second     uttering is charged
— 832.05(4)              degree misdemeanor)
Perjury not in official  None                    None
proceeding — 837.012
Perjury if official      None                    None
proceeding — 837.02
Perjury by               None                    None
contradictory
statements — 837.021
False reports to law     None                    None
enforcement
authorities — 837.05
False official           None                    None
statements — 837.06
Bribery — 838.015        None                    Attempt if only give or
accept is charged
Unlawful compensation    None                    Attempt if only give or
for official behavior                            accept is charged
— 838.016
Corruption by threat     None                    Attempt if only harm is
against public                                   charged
servant — 838.021
Bribery in athletic      None                    Attempt only if give is
contests — 838.12(1)                             charged
Bribery in athletic      None                    Attempt only if accept is
contests — 838.12(2)                             charged
Keeping gambling house   None                    Lottery — 849.09(1)(f)
— 849.01
Lottery — 849.09(1)(k)
Lottery — 849.11
Agents, servants, etc.,  None                    Lottery — 849.(1)(f)
of keeper of gambling
house — 849.02
Lottery — 849.09(1)(k)
Renting house for        None                    None
gambling purposes
— 849.02
Permitting minors and    None                    Permitting gambling and
persons under                                    billiard or pool table by
guardianship to                                  holder of license —
gamble — 849.04                                  849.07
Playing at games of chance
by lot — 849.11
Gambling — 849.08        None                    None
Lottery 849.09(1)(a)     None                    Attempt
Lottery — 849.09(1)(f)
Lottery — 849.09(1)(g)
Lottery — 849.09(1)(h)
Lottery — 849.09(1)(i)
Lottery — 849.09(1)(j)
Lottery — 849.09(1)(k)
Playing at game of chance
by lot — 849.11
Gambling devices, etc.
— 849.231
Lottery 849.09(1)(b)     None                    Attempt
Lottery — 849.09(1)(f)
Lottery — 849.09(1)(g)
Lottery — 849.09(1)(h)
Lottery — 849.09(1)(i)
Lottery — 849.09(1)(j)
Lottery — 849.09(1)(k)
Gambling devices, etc.
— 849.231
Lottery 849.09(1)(c)     None                    Attempt
Lottery — 849.09(1)(f)
Lottery — 849.09(1)(g)
Lottery — 849.09(1)(h)
                                                 Lottery — 849.09(1)(i)
Lottery — 849.09(1)(j)
Lottery — 849.09(1)(k)
Gambling devices, etc.
— 849.231
Lottery 849.09(1)(d)     None                    Attempt
Lottery — 849.09(1)(f)
Lottery — 849.09(1)(g)
Lottery — 849.09(1)(h)
Lottery — 849.09(1)(i)
Lottery — 849.09(1)(j)
Lottery — 849.09(1)(k)
Playing at game of chance
by lot — 849.11
Gambling devices, etc.
— 849.231
Lottery 849.09(1)(g)     None                    Attempt
Lottery 849.09(1)(h)     None                    Attempt
Lottery 849.09(1)(k)     None                    Attempt
Bookmaking on grounds    None                    Attempt
of permit-holder
— 550.361
(adapted from former
849.24)
Bookmaking — 849.25(2)   None                    Attempt
Bookmaking — 849.25(3)   Bookmaking — 849.25(2)  Attempt
Bookmaking on grounds of
permit-holder — 550.361
Driving under the        None                    Attempt
influence —
316.193(3)(c)(1)
DUI with damage to       DUI — 316.193(1)        None
property or person
— 316.193(3)(c)1
DUI with serious bodily  DUI — 316.193(1)        DUI — 316.193(3)(c)1
injury —
316.193(3)(c)2
DUI manslaughter         DUI — 316.193(1)        Vehicular homicide —
— 316.193(3)(c)3                                 782.071 DUI —
316.193(3)(c)2
DUI — 316.193(3)(c)1
Sale, manufacture,       None                    Attempt, except when
delivery or                                      delivery is charged;
possession with                                  893.13(1)(f)(g) if
intent to sell,                                  possession or delivery of
manufacture or                                   cannabis charged
deliver controlled                             893.13(1)(e)(f) if
substance —                                possession is
893.13(1)(a)                                       charged[********]
Sale, delivery or        None                    Attempt, except when
possession of more                               delivery is charged
than 10 grams of                                 893.13(1)(a)
controlled substance                             893.13(1)(e)(f) if
— 893.13(1)(b)                                   possession is charged
Delivery of controlled   None                    893.13(1)(a)
substance to person                              893.13(1)(f)(g)
under 18 years old                               if cannabis charged
— 893.13(1)(c)
Bringing controlled       None                   Attempt 893.13(1)(e)(f)
substance into state                             893.13(1)(f)(g) if
— 893.13(1)(d)                                   cannabis charged
Possession of            None                    Attempt; 893.13(1)(f)(g) if
controlled substance                             cannabis charged
— 893.13(1)(e)(f)
Offense of possession    None                    Attempt, except when
or delivery of not                               delivery is charged
more
  than 20 grams of
cannabis —
893.13(1)(f)(g)
Obtaining controlled     None
substances by fraud
— 893.13(3)(a)1
Possession of drug       None                    Attempt
paraphernalia
— 893.147(1)
Delivery, possession     None                    Attempt, except when
with intent to                                   delivery is charged
deliver, or
manufacture with
intent to deliver
drug paraphernalia
— 893.147(2)
Delivery of drug         None                    None
paraphernalia to a
minor — 893.147(3)
Trafficking in cannabis
— 893.135(1)(a)        None[*********]       Attempt, except when
delivery is charged
893.13(1)(a) if sale,
manufacture or delivery
is charged
Bringing cannabis into
state — 893.13(1)(d)
Possession of cannabis
— 893.13(1)(e)(f)
Possession or delivery of
cannabis —
893.13(1)(f)(g)
Trafficking in cocaine   None[*********]       Attempt, except when
— 893.135(1)(b)                                  delivery is charged
893.13(1)(a) if sale,
manufacture or delivery
is charged
Bringing cocaine into state
— 893.13(1)(d)
Possession of cocaine
— 893.13(1)(e)(f)
Trafficking in illegal   None[*********]       Attempt, except when
drugs — 893.135(1)(c)                            delivery is charged
893.13(1)(a) if sale,
manufacture or delivery
is charged
Bringing same illegal drug
as charged into state
— 893.13(1)(d)
Possession of same illegal
drug — 893.13(1)(e)(f)
Trafficking in           None[*********]       Attempt, except when
phencyclidine                                    delivery is charged
— 893.135(1)(d)
893.13(1)(a) if sale,
manufacture or delivery
is charged
Bringing phencyclidine
into state — 893.13(1)(d)
Possession of phencyclidine
— 893.13(1)(e)(f)
Trafficking in           None[*********]       Attempt, except when
methaqualone                                     delivery is charged
— 893.135(1)(d)
                                                 893.13(1)(a) if sale,
manufacture or delivery
is charged
Bringing methaqualone into
state — 893.13(1)(d)
Possession of methaqualone
— 893.13(1)(e)(f)
Contraband — 951.22        None                  The nature of the
contraband may give rise
to misdemeanor, lesser
included offenses See
Cooper v. State,
512 So. 2d 1071 (Fla.
1st DCA 1987); Moore v.
State, 512 So. 2d 1149
(Fla. 1st DCA 1987).
EXHIBIT 12
THROWING, PLACING, PROJECTING, OR DISCHARGING
DESTRUCTIVE DEVICE
F.S. 790.161
Before you can find the defendant guilty of (crime
charged), the State must prove the following three
elements beyond a reasonable doubt:
Elements                  1. (Defendant)
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to throw, place, project,
or discharge]
a destructive device.
2. He did so
[with intent to do bodily harm to any
person.]
[with intent to wrongfully do damage to
(property).]
3. The act resulted in
Give 3a, 3b, 3d, 3e          a. [a disruption of governmental 3c,
or 3f as applicable               operations.]
b. [a disruption of governmental commerce.]
c. [a disruption of the private affairs of
(victim).]
d. [bodily harm to (victim).]
e. [property damage.]
f. [the death of (victim).]
Person killed;            It is not necessary that the person killed be the
give if 3f alleged      same person the defendant intended to injure or the
owner of the property intended to be damaged.
Definition                A "destructive device" is defined as (adapt from
F.S. 790.001(4) as required by the allegations).
EXHIBIT 13
THREAT TO THROW, PLACE, PROJECT, OR DISCHARGE ANY
DESTRUCTIVE DEVICE
F.S. 790.162
Before you can find the defendant guilty of (crime
charged), the State must prove the following two
elements beyond a reasonable doubt:
Elements                  1.    (Defendant) threatened to
[throw]
[place]
[project]
[discharge]
a destructive device.
2. He did so with intent to do
[bodily harm to any person.] [damage to the
property of any person.]
Definition                A "destructive device" is defined as (adapt from
F.S. 790.001(4) as required by the allegations).
EXHIBIT 14
CONTRABAND IN COUNTY DETENTION FACILITY
F.S. 951.22
Before you can find the defendant guilty of the
crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:
Elements                  1. (Defendant)
[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.
The court now instructs you that for purposes of
this offense, "contraband" means:
Select definition         [any currency or coin.]
depending upon            [any article of food or clothing.]
item alleged              [any written or recorded communication.]
[any intoxicating beverage or beverage which
causes or may cause an intoxicating effect.]
[any narcotic, hypnotic or excitative drug.]
[any drug of any kind, including nasal inhalation]
[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               "County detention facility" means a county jail,
F.S. 951.23(1)          a county stockade, a county prison camp, a county
residential probation center, and any other place
used by a county or county officer to detain persons
charged with or convicted crimes, including the
grounds thereof.
Note to Judge: In
event of municipal
facility involved,
see statute.
Definitions
Give as applicable      To "introduce" means to put inside or into.
Note to Judge:
See p. 220 for
definition of
"possession."

NOTES

[*] The committee expressed concern over the constitutionality of chapter 87-243, section 42, Laws of Florida, creating section 777.201(2), which places the burden of proof of entrapment on the defendant. Therefore, the committee offered alternative final paragraphs of the instruction, one of which retained the existing instruction which requires the state to prove beyond a reasonable doubt that the defendant was not entrapped, and the other which requires the defendant to prove entrapment by a preponderance of the evidence. For the purpose of adopting standard jury instructions, the constitutionality of a statute must be assumed unless it has been declared unconstitutional. The Court deems it inappropriate to pass on the constitutionality of a statute except in adversary proceedings. Therefore, for offenses occurring on or after October 1, 1987, the Court has accepted the statutory alternative which places the burden of proof of entrapment on the defendant.

[**] But see Martin v. State, 342 So. 2d 501 (Fla. 1977); Drotar v. State, 433 So. 2d 1005 (Fla. 3d DCA 1983), holding that nonhomicide lessers should not be given when the only issue is whether the death was a lawful or unlawful homicide, but should be given if there is an issue of causation, i.e., whether death was caused by defendant's act or some other unconnected cause. When a nonhomicide offense is a necessarily lesser included offense of the homicide offense, an instruction on the lesser may be necessary. See certified question in Barritt v. State, 517 So. 2d 65 (Fla. 1st DCA 1987).

[***] See Scurry v. State, 521 So. 2d 1077 (Fla. 1988).

[****] But see Martin v. State, 342 So. 2d 501 (Fla. 1977).

[*****] But see Smith v. State, 330 So. 2d 256 [526] (Fla. 4th DCA 1976), and Murray v. State, 328 So. 2d 501 (Fla. 4th DCA 1976).

[******] See Taylor v. State, 444 So. 2d 931 (Fla. 1984).

[*******] But see Martin v. State, 342 So. 2d 501 (Fla. 1977).

[********] Provided that charged offense is a second degree felony under section 893.13(1)(a)1.

[*********] An instruction of simple possession may be required. See Dauphin [Daophin] v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987), cert. pending (Case No. 70,995, Fla.S.Ct.).