Standard Jury Instructions

723 So. 2d 123 (1998)

STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (97-2).

No. 91815.

Supreme Court of Florida.

July 16, 1998.

Honorable Philip J. Padovano, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, for Petitioner.

William D. Matthewman, Miami, John H. Gutmacher, Orlando, Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, and Arthur I. Jacobs, General Counsel for Florida Prosecuting Attorneys Association, Fernandina Beach, Responding.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:

1. A revised Schedule of Lesser Included Offenses.^[1]

2. A New Instruction on Duress or Necessity.

3. A Supplemental Instruction on Penalty Phase Proceedings.

4. An Amended Instruction on Entrapment.

5. An Amended Instruction on False Imprisonment.

6. Amended Instructions Relating to DUI.

7. A New Instruction on Sexual Activity with a Minor.

The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.

First, the word "intentionally" has been added to the first element in the Committee's proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term "police" in the definition of information to "law enforcement." The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.

With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.

Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.

It is so ordered.

HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

APPENDIX

SCHEDULE OF LESSER INCLUDED OFFENSES

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 on 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.

TABLE OF LESSER INCLUDED OFFENSES
SECTION             CHARGED                CATEGORY 1               CATEGORY 2
OFFENSE
316.193(1)          Driving under           None                      Attempt
the influence
316.193(2)(b)       Felony DUI prior        None                      Attempt
convictions
316.193(3)(c)       DUI with damage         DUI - 316.193(1)           None
(1)                 to property
or person
316.193(3)(c)       DUI with serious        DUI - 316.193(1)           DUI- 316.193(3)(c)(1)
(2)                 bodily injury
316.193(3)(c)       DUI manslaughter        DUI - 316.193(1)           DUI serious bodily injury
(3)                                                                    - 316.193(3)(c)(2)
DUI damage to person
or property -316.193(3)(c)
Vehicular homicide -782.071
550.361             Bookmaking on           None                       Attempt
grounds of permit
holder
(adapted from
former 849.24)
782.04(1)           First degree            Second degree (depraved    Second degree
(premeditated)          mind) murder               (felony) murder -782.04(3)
murder                  - 782.04(2)                Third degree (felony
Manslaughter -782.07       murder) - 782.04(4)
Vehicular homicide -782.071
(Nonhomicide lessers)
Attempt
Culpable negligence -784.05(2)
Aggravated battery
784.045
Aggravated assault -784.021
Battery - 784.03
Assault - 784.011
782.04(1)           First degree            Second degree (depraved    Second degree
(felony) murder         mind) murder- 782.04(2)    (felony) murder -782.04(3)
Manslaughter -782.07       Third degree (felony)
murder - 782.04(4)
(Nonhomicide lessers)
Aggravated battery -784.045
Aggravated assault -784.021
Battery - 784.03
Assault - 784.0111

782.04(1)(a) &      Attempted first         Attempt second degree      Aggravated assault -
777.04              degree (premeditated)   (depraved                  784.021
murder                  mind) murder -             Aggravated battery -
782.04(2) & 777.04         784.045
Attempt voluntary          Assault - 784.011
manslaughter -             Battery - 784.03
782.07 & 777.04
782.04(2)           Second degree           Manslaughter - 782.07      Third degree
(depraved mind)                                    (felony) murder - 782.04(4)
murder
Vehicular homicide - 782.071
(Nonhomicide lessers)
Attempt
Culpable negligence - 784.05(2)
Aggravated battery - 784.045
Aggravated assault - 784.021
Battery - 784.03
Assault - 784.011
782.04(3)           Second degree           None                       Third degree (felony)
(felony) murder                                    murder - 782.04(4)
782.051             Felony causing          None                       Felony causing bodily
bodily injury                                      injury - 782.051(2)
Felony causing bodily
injury - 782.051(3)
782.04(4)           Third degree            None                       Aggravated assault -784.021
(felony murder)                                    Battery - 784.03
Assault - 784.011
782.07              Manslaughter            None                       Vehicular homicide - 782.071
(Nonhomicide lessers)
Attempt
Aggravated assault - 784.021
Battery - 784.03
Assault - 784.011
Culpable negligence - 784.05(1)
Culpable negligence - 784.05(2)
782.071             Vehicular Homicide     Reckless driving - 316.192  Culpable negligence - 784.05(1)
Culpable negligence - 784.05(2)
784.011             Assault                None                        Attempt
784.021(1)(a)       Aggravated             Assault - 784.011           Attempt Improper exhibition
assault                                            of dangerous
weapons or firearms - 790.10
Discharging firearms in
public - 790.15

784.021(1)(b)       Aggravated              Assault - 784.011          Attempt
assault
784.03              Battery                 None                       Attempt
784.045(1)(a)       Aggravated              Battery - 784.03           Attempt
1                   battery
784.045(1)(a)       Aggravated              Battery - 784.03           Attempt
2                   battery                                            Improper exhibition of
dangerous weapons or
firearms - 790.10
784.045(1)(b)       Aggravated              Battery - 784.03           Attempt
battery
784.048(2)          Stalking                None                       Attempt
784.048(3)          Aggravated              Stalking - 784.048(2)      Attempt
stalking                                           Assault - 784.011
Improper exhibition of
dangerous weapon -790.10
784.048(4)          Aggravated              Stalking - 784.048(2)      Attempt
stalking                                           Violation of injunction
for protection against
domestic violence - 741.31(4)
784.05(2)           Culpable                Culpable negligence        None
negligence              - 784.05(1)
784.07(2)           Assault of law          Assault - 784.011          Attempt
enforcement
officer
784.07(2)           Battery of law          Battery - 784.03           Attempt
enforcement
officer
784.07(2)(c)        Aggravated              Aggravated                 Attempt
assault on law          assault - 784.021          Improper exhibition of
enforcement             Assault on law             dangerous weapons or
officer                 enforcement                firearms - 790.10
officer - 784.07(2)(a)     Discharging firearms in
Assault - 784.011          public - 790.15
784.07(2)(d)        Aggravated              Aggravated                 Attempt
battery on law          battery - 784.045          Improper exhibition of
enforcement             Battery on law             dangerous weapons or
officer                 enforcement                firearms - 790.10
officer                    Discharging firearms in
784.07(2)(b)               public - 790.15
Battery - 784.03
784.08(2)(a)        Aggravated              Aggravated                 Attempt
battery on              battery - 784.045          Improper exhibition of
person 65 years         Battery on                 dangerous weapons or
of age or older         person 65 years            firearms - 790.10
of age or older            Discharging firearms in
- 784.08(2)(c)             public - 790.15
Battery - 784.03
784.08(2)(b)        Aggravated              Aggravated                 Attempt
assault on              assault - 784.021          Improper exhibition of
person 65 years         Assault on                 dangerous weapons or
of age or older                                    firearms - 790.10

person 65 years            Discharging firearms in
of age or older            public - 790.15
- 784.08(2)(d)
Assault - 784.011
784.08(2)(c)        Battery on person       Battery - 784.03           Attempt
65 years of
age or older
784.08(2)(d)        Assault on person       Assault - 784.011          Attempt
65 years of
age or older
787.01              Kidnapping              False                      Attempt
imprisonment - 787.02      Aggravated assault - 784.021(1)(b)
Battery - 784.03(1)(a)
Assault - 784.011
787.02              False                   None                       Attempt
imprisonment                                       Battery - 784.03(1)(a)
Assault - 784.011
790.01(1)           Carrying concealed      None                       Attempt
weapons
790.01(2)           Carrying concealed      None                       Attempt
firearms
790.06              Carrying pistol         None                       Attempt
or repeating rifle
without first
obtaining license
790.07(1)           Persons engaged         None                       Attempt (may be applicable
in criminal                                        when concealed
offense, having                                    weapon is charged)
weapons                                            Carrying concealed
weapons - 790.01(1)
Improper exhibition of
dangerous weapons -790.10
790.07(2)           Persons engaged         None                       Attempt (may be
in criminal                                        applicable when concealed
offense, having                                    firearm is
weapons                                            charged)
Carrying concealed firearm
- 790.01(2)
Improper exhibition of
dangerous firearms -790.10
790.10              Improper                None                       Attempt
exhibition of                                      Assault - 784.011
weapon
790.15              Discharging             None                       Attempt
firearms in public
790.161(1)          Possessing,             None                       None
throwing, making,
placing,
projecting, or
discharging destructive
device
790.161(2)          Possessing,             Possessing, throwing,      Aggravated assault - 784.021
throwing, making,       making, placing,           Assault - 784.011
placing,                projecting, or

projecting, or          discharging destructive
discharging destructive device - 790.161 (1)
device
790.161(3)          Possessing,             Possessing, throwing       Possessing, throwing,
throwing, making        making, placing,           making, placing,
placing                 projecting, or             projecting, or discharging
projecting, or          discharging destructive    destructive device -
discharging destructive device                     790.161(2)
device                  790.161(1)                  Aggravated assault -
784.021
Assault - 784.011
790.161(4)          Possessing,             Possessing, throwing,      Possessing, throwing,
throwing, making,       making, placing,           making, placing, projecting,
placing,                projecting, or             or discharging destructive
projecting, or          discharging destructive    device - 790.161(2)
discharging destructive device - 790.161(1)        Aggravated assault - 784.021
device                  Possessing, throwing,      Assault - 784.011
making, placing,
projecting, or
discharging destructive
device - 790.161(3)
790.162             Threat to throw,        None                       Attempt
project, place,                                    Assault - 784.011
or discharge any
destructive device
790.163             False reports of        None                       None
bombing
790.164             False reports of        None                       Attempt
bombing or arson                                   False reports of bombing
or other violence                                  - 790.163
to property
owned by the
State
790.17              Furnishing              None                       Attempt
weapons to minors
under 18
years of age,
etc.
790.18              Selling arms to         None                       Attempt
minors by dealers
790.19              Shooting or             None                       Attempt
throwing missiles                                  Discharging firearm in
in dwelling                                        public - 790.15
790.221             Possession of           None                       Attempt
forbidden firearms
790.23              Felons; possession      None                       Attempt (may be applicable
of firearms                                        when concealed
unlawful; exception;                               weapon is charged)
penalty                                            Carrying concealed firearm - 790.01(2)

794.011(2)(a)       Sexual battery - victim  Battery - 784.03          Sexual battery - 794.011(5)
(b)                 under 12                                           Attempt
Assault - 784.011
Aggravated assault - 784.021(1)(a)
Aggravated battery - 784.045(1)(a)
794.011(3)          Sexual battery - victim Sexual battery-794.011(5)  Sexual battery - 794.011(2)(b)
over 12 - weapon        Battery - 784.03           Attempt
or force                                           Aggravated battery -784.045(1)(a)
Aggravated assault -784.021(1)(a)
Assault - 784.011
Sexual battery -794.011(4)
794.011(4)          Sexual battery-victim   Sexual battery-794.011(5)  Attempt
over 12 - special       Battery - 784.03           Aggravated assault -784.021(1)(a)
circumstances                                      Assault - 784.011
794.011(5)          Sexual battery-victim   Battery - 784.03           Attempt
over 12 - without
force
800.02              Unnatural and           None                       Attempt
lascivious act
800.03              Exposure of             None                       Unnatural and lascivious
sexual organs                                      act - 800.02
800.04              Lewd,                   None                       Attempt
lascivious, or                                     Assault - 784.011
indecent                                           Battery - 784.03
assault or act                                     Unnatural and
upon or                                            lascivious
in presence of                                     act - 800.02
child
806.01(1)           Arson                   None                       Arson 806.01(2)
Attempt
Criminal mischief -806.13(1)(b)1
Criminal mischief -806.13(1)(b)2.
Criminal mischief -806.13(1)(b)3.
Criminal mischief -806.13(2)
806.111             Arson - Fire            None                       Attempt
bomb
806.13(1)(b)1       Criminal mischief       None                       Attempt
806.13(1)(b)2       Criminal mischief       Criminal mischief -        Attempt
806.13(1)(b)1
806.13(1)(b)3       Criminal mischief       Criminal mischief -        Attempt
806.13(1)(b)1
Criminal mischief -
806.13(1)(b)2
810.02(2)           Burglary with           Burglary - 810.02(4)       Aggravated battery - 784.03

assault or                                         Battery - 784.03
battery or while                                   Aggravated assault - 784.021
armed                                              Assault - 784.011
Attempt
Burglary - 810.02(3)
Trespass - 810.08(2)(a)
Trespass - 810.08(2)(c)
810.02(3)           Burglary of             Burglary - 810.02(4)       Attempt
dwelling                                           Burglary - 810.02(3)
Burglar                                            Trespass - 810.08(2)(a)
structure or                                       Trespass - 810.08(2)(b)
conveyance with
human being inside
810.02(4)           Burglary                None                       Attempt
Trespass - 810.08(2)(a)
810.06              Possession of           None                       None
burglary tools
810.08              Trespass in             None                       Attempt (except refuse
structure or                                       to depart)
conveyance
810.09              Trespass on             None                       Attempt
property other
than structure
or conveyance
812.014(2)(a)       Grand theft - first     Grand theft - second       Trade secrets - 812.081
degree                  degree - 812.014(2)(b)
(property               Grand theft - third
valued at $100,000      degree - 812.014(2)(c)
or more)                (1), (2), (3)
Petit theft - first
degree
812.014(2)(e)
Petit theft - second
degree - 812.014(3)(a)
812.014(2)(b)       Grand theft - second    Grand theft - third        Trade secrets - 812.081
degree                  degree - 812.014(2)(c)
(property               (1), (2), (3)
valued at $20,000       Petit theft-first
or more but             degree
less than $100,000      812.014(2)(e)
Petit theft - second
degree
812.014(3)(a)
812.014(2)(c)       Grand theft -third      Petit theft -first         Trade secrets - 812.081
degree                  degree                     Trespass to
812.014(2)(e)              conveyance - 812.014(2)(c)(6)
Petit theft - second
degree
812.014(3)(a)

812.014(2)(d)       Grand theft third       None                       Petit theft - second degree-812.014(3)(a)
degree
812.014(2)(e)       Petit theft - first     None                       Petit theft - second degree - 812.014(3)(a)
degree
812.014(3)(b)       Petit theft             None                       None
812.014(3)(a)       Petit theft - second    None                       None
degree
812.014(3)(c)       Felony Petit            None                       Petit theft - first degree - 812.014(2)(e)
theft                                              Petit theft - 812.014(3)(b)
Petit theft - second degree - 812.014(3)(a)
812.016             Possession of altered   None                       Attempt
property
812.019(1)          Dealing in stolen       None                       Grand theft - third degree - 812.014(2)(c)
property trafficking                               Petit theft - 812.014(2)(e)
Petit theft - 812.014(3)(a)
812.019(2)          Dealing in stolen       Dealing in stolen          None
property managing       property - 812.019(1)
and
trafficking
812.13(2)(a)        Robbery with a          Robbery with a             Attempt
firearm or              weapon - 812.13(2)(b)      Grand theft 1st
deadly weapon           Robbery                    degree - 812.014(2)(a)
812.13(2)(c)               Grand theft 2d degree - 812.014(2)(b)
Petit theft -              Grand theft 3d degree - 812.014(2)(c)
812.014(3)(a)              Petit theft - 812.014(2)(e)
Battery - 784.03
Aggravated battery - 784.045
Assault - 784.011
Aggravated assault - 784.021
Display of firearm - 790.07
Resisting a Merchant - 812.015(6)
812.13(2)(b)        Robbery with a          Robbery - 812.13(2)(c)     Attempt
weapon                  Petit theft-812.014(3)(a)  Grand theft 1st
degree - 812.014(2)(a)
Grand theft 2d degree - 812.014(2)(b)
Grand theft 3d degree - 812.014(2)(c)
Petit theft - 812.014(2)(e)
Battery - 784.03
Aggravated battery - 784.045
Assault - 784.011

Display of weapon - 790.07(1)
Resisting a merchant - 812.015(6)
812.13(2)(c)        Robbery                 Petit theft-812.014(3)(a)  Attempt
812.013(2)(b)                                                          Grand theft 1st degree - 812.014(2)(a)
Grand theft 2d degree - 812.014(2)(b)
Grand theft 3d degree - 812.014(2)(c)
Petit theft - 812.014(2)(e)
Battery - 784.03
Assault - 784.011
Aggravated assault - 784.021
Resisting a merchant - 812.015(6)
812.135             Home invasion           Robbery -812.13(2)(c)      Petit theft -812.014(2)(e)
robbery                 Petit theft-812.014(3)(a)
817.233             Burning to defraud      None                       None
insurer
817.563             Sale of substance       None                       Attempt
in place
of a controlled
substance
826.04              Incest                  None                       Attempt
827.03(1)(a)        Aggravated              None                       Attempt
child abuse                                        child abuse - 827.04(1)
Battery - 784.03 only
under certain circumstances
see Kama v.
State, 507 So. 2d 154
(Fla. 1st DCA 1987)
827.03(1)(b)        Aggravated              None                       Attempt
827.03(1)(c)        child                                              Child abuse - 827.04(1)
827.03(1)(d)        abuse                                              Battery - 784.03: only
827.04(3)           Contributing to         None                       Attempt
child delinquency
or dependency
or to child in
need of services
827.071(2)          Sexual                  None                       Attempt
performance by                                     Sexual performance by a
a child                                            child - 827.071(5)
827.071(3)          Sexual                  None                       Attempt
performance by                                     Sexual performance by a
a child                                            child - 827.071(5)
827.071(4)          Sexual                  Sexual                     Attempt
performance by          performance by a
a child                 child - 827.071(5)
827.071(5)          Sexual                  None                       Attempt
performance by
a child

831.01              Forgery                 None                       Attempt
831.02              Uttering forged         None                       None
instrument
832.04              Stopping payment;       None                       Attempt, except when
purchase                                           uttering is charged - 832.04
of farm or grove                                   under $150
products
832.041             Stopping payment        None                       Attempt, except when
with intent                                        uttering is charged
to defraud                                         832.04 if farm or grove
product
832.041 under $150
Worthless check - 832.05(2)
(first degree
misdemeanor)
832.05(2)           Worthless               None                       Attempt, except when
checks                                             uttering is charged
832.05(2) under $150
832.05(4)           Obtaining property      Worthless check-832.05(2)  Attempt
by worthless
checks
837.012             Perjury not in          None                       None
official proceeding
837.02              Perjury in official     None                       None
proceeding
837.021             Perjury by contradictory  None                     None
statements
837.05              False reports to        None                       None
law enforcement
authorities
837.06              False official          None                       None
statements
838.015(1)          Bribery of public       None                       Attempt if only "give" is
servant                                            charged
838.015             Bribery                 None                       Attempt if only "accept"
is charged
838.016(1)          Bribery by a            None                       Attempt if only "give" or
public servant                                     "accept" is charged
838.016             Unlawful compensation   None                       Attempt if only "give" or
for official                                       "accept" is charged
behavior
838.021             Corruption by           None                       Attempt if only harm is
threat against                                     charged
public servant
838.12(1)           Bribery in athletic     None                       Attempt if only give is
contests                                           charged
838.12(2)           Bribery in athletic     None                       Attempt if only accept is
contests                                           charged
843.01              Resisting officer       None                       Resisting officer without
with violence                                      violence - 843.02
843.02              Resisting officer       None                       Attempt
without violence
849.01              Keeping gambling        None                       Lottery - 849.09(1)(f)
house                                              Lottery - 849.09(1)(k)

Lottery - 849.11
849.01              Maintaining a           None                       Lottery - 849.09(1)(f)
(849.02)            gambling                                           Lottery - 849.09(1)(k)
establishment                                      Lottery - 894.11
849.01              Permitting              None                       Lottery - 849.09(1)(f)
(849.02)            gambling                                           Lottery - 849.09(1)(k)
Lottery - 849.11
849.02              Agents,                 None                       Lottery - 849.09(1)(f)
servants, etc., of                                 Lottery - 849.09(1)(k)
keeper of gambling
house
849.02              Renting house           None                       None
for gambling
purposes
849.03              Renting space           None                       None
for gambling
849.04              Permitting minors       None                       Permitting gambling on
and persons                                        billiard or pool table by
under                                              holder of license - 849.07
guardianship to                                    Playing at games of
gamble                                             chance by lot - 849.11
849.08              Gambling                None                       None
849.09(1)(a)        Lottery                 None                       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
849.09(1)(b)        Lottery                 None                       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
849.09(1)(c)        Lottery                 None                       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
849.09(1)(d)        Lottery                 None                       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 games of
chance by lot - 849.11
Gambling devices, etc. - 849.231
849.09(1)(g)        Lottery                 None                       None
849.09(1)(h)        Lottery                 None                       None
849.09(1)(k)        Lottery                 None                       None
849.14              Betting                 None                       None
849.25              Bookmaking              None                       Attempt
(1) and (2)
893.13(1)(a)        Sale, manufacture,      None                       Attempt, except when
delivery or                                        delivery is charged
possession with                                    893.13(3) if delivery of
intent to sell,                                    cannabis is charged;
manufacture or                                     893.13(6)(b) if possession
deliver controlled                                 of cannabis is charged;
substance                                          893.13(6)(a) - if possession
is charged and offense
would be a second
degree felony under
893.13(1)(a)1.
893.13(1)(b)       Sale or delivery        Sale or delivery of        Attempt, except when
or possession of        controlled substance       delivery is charged
more than 10            - 893.13(1)(a)             893.13(6)(a) if possession
grams of controlled                                is charged
substance
893.13(1)(c)        Sale, manufacture,      Sale, manufacture,         Attempt, except when
delivery,               delivery, etc.             delivery is charged;
etc. near public        - 893.13(1)(a)             893.13(6)(a) if possession
or private elementary,                             is charged and the offense
middle,                                            would be a second
or secondary                                       degree felony under
school                                             893.13(1)(a); 893.13(6)(b)
if possession of cannabis
is charged; 893.13(3) if
delivery of cannabis is
charged
893.13(1)(d)        Sale, manufacture       Sale, manufacture,         Attempt, except when
delivery,               delivery, etc.             delivery is charged;
etc. near a college,    - 893.13(1)(a)             893.13(6)(a) if possession
university,                                        is charged and the offense
other post-secondary                               would be a second
educational                                        degree felony under
institution                                        893.13(1)(a)1;
or public                                          893.13(6)(b) if possession
park                                               of cannabis is charged;
893.13(3) if delivery of
cannabis is charged.
893.13(2)(a)        Purchase or             None                       Attempt;
possession with                                    893.13(6)(a) if possession
intent to purchase                                 is charged and the offense
controlled                                         would be a second
substance                                          degree felony under
893.13(2)(a)1 893.13(6)(b)
if possession of cannabis
is charged
893.13(2)(b)        Purchase in excess      893.13(2)(a) purchase      Attempt
of 10 grams             of less than

of a controlled         10 grams
substance
893.13(3)           Delivery without        None                       None
consideration
not more than
20 grams of cannabis
893.13(4)           Delivery of controlled  None                       893.13(1)(a); 893.13(3) if
substance                                          delivery of cannabis is
to person                                          charged.
under 18 years
old, etc.
893.13(5)           Bringing controlled     None                       Attempt
substance                                          893.13(6)(a); 893.14(3) if
into state                                         delivery of cannabis
charged; 893.13(6)(b) if
possession of cannabis
charged.
893.13(6)(a)        Possession of           None                       Attempt; 893.13(3) if delivery
controlled substance                               of cannabis
stance                                             charged; 893.13(6)(b) if
possession of cannabis
charged.
893.13(6)(b)        Possession of           None                       Attempt
not more than
20 grams of cannabis
893.13(6)(c)        Possession in           Possession of less         Attempt 893.13(6)(b) if
excess of 10            than 10 grams              possession of cannabis
grams of controlled     893.13(6)(a)               charged;
substance
893.13(7)(a) 1,     Distribute or           None                       Attempt
2, 3, 4, 5, 6, 7,   dispense a controlled
8, 10 and 11        substance,
etc.
893.13(7)(a) 9      Obtaining controlled    None                       None
substances
by fraud
893.135(1)(a)       Trafficking in          Trafficking offenses       Attempt, (but not conspiracy),
cannabis                requiring                  except when
lower quantities of        delivery is charged
cannabis-893.135(1)(a)     893.13(1)(a) if sale, manufacture
1 and 2                    or delivery is
charged
893.13(2)(a) - if purchase
is charged
Bringing cannabis into
state - 893.13(5)
Possession of cannabis - 893.13(6)(a)
- 893.13(6)(b)
if less than
20 grams of cannabis
Delivery of less than 20
grams of cannabis - 893.13(3)
893.135(1)(b)       Trafficking in          Trafficking offenses       Attempt (but not conspiracy),
1&2                 cocaine                 requiring                  except when
lower quantities of        delivery is charged;

cocaine                    893.13(1)(a) if sale, manufacture
893.135(1)(b)1             or delivery
is charged;
893.13(2)(a) if purchase
is charged;
Bringing cocaine into
state 893.13(5);
Possession of cocaine
893.13(6)(a).
893.135(1)(c)       Trafficking in illegal  Trafficking offenses       Attempt (but not conspiracy),
1&2                 drugs                   requiring                  except when
lower quantities of        delivery is charged;
illegal drugs -            893.13(1)(a) if sale,
893.135(1)(c)1             manufacture or delivery
is charged;
893.13(2)(a) if purchase
is charged;
Bringing same illegal
drug as charged into
state - 893.13(5)
Possession of same illegal
drug - 893.13(6)(a).
893.135(1)(d) 1     Trafficking in          Trafficking offenses       Attempt (but not conspiracy),
phencyclidine           requiring                  except when
lower quantities of        delivery is charged
phencyclidine -            893.13(1)(a) if sale, manufacture
892.135(1)(d)1.            or delivery
and b.                     is charged
893.13(2)(a) - if purchase
is charged;
Bringing phencyclidine
into state - 893.13(5);
Possession of phencyclidine
- 893.13(6)(a)
893.135(1)(e)1      Trafficking in          Trafficking offenses       Attempt (but not conspiracy),
methaqualone            requiring                  except when
lower quantities of        delivery is charged
methaqualone -             893.13(1)(a) if sale, manufacture
893.135(1)(e)1.a and       or delivery is
b.                         charged
893.13(2)(a) - if purchase
is charged
Bringing methaqualone
into state - 893.13(5)
Possession of methaqualone
- 893.13(6)(a)
893.135(1)(f)1      Trafficking in          Trafficking offenses       Attempt (but not conspiracy),
amphetamine             requiring                  except when
lower quantities of        delivery is charged
amphetamine -              893.13(1)(a) - if sale,
893.135(1)(f)1 a&b         manufacture or delivery
is charged;
893.13(2)(a) - if purchase
is charged;
Bringing amphetamine
into state - 893.13(5);
Possession of amphetamine
- 893.13(6)(a)

893.147(1)          Possession of           None                       Attempt
drug paraphernalia
893.147(2)          Delivery, possession    None                       Attempt, except when
with intent                                        delivery is charged.
to deliver,
or manufacture
with intent to
deliver drug
paraphernalia
893.147(3)          Delivery of drug        None                       None
paraphernalia to
a minor
893.147(4)          Advertisement           None                       None
of drug paraphernalia
893.149             Unlawful possession,    None                       Attempt
etc., of
listed chemical
895.03(1)           RICO - Use or           None                       None
investment of
proceeds from
pattern of racketeering
activity
895.03(1)           RICO - Use or           None                       None
investment of
proceeds from
collection of unlawful
debt
895.03(2)           RICO - Acquisition      None                       None
or maintenance
through
pattern of racketeering
activity
895.03(2)           RICO -                  None                       None
Acquisition or
maintenance
through collection
of unlawful
debt
895.03(3)           RICO - Conduct          None                       None
or participation
in an enterprise
through collection
of unlawful
debt
895.03(3)           RICO - Conduct          None                       None
or participation
in an enterprise
through a pattern
of racketeering
activity
895.03(4)           Conspiracy to           None                       None
engage in pattern
of racketeering
activity
944.40              Escape                  None                       None

944.47              Contraband in           None                       Possession of less than
state correctional                                 20 grams cannabis - 893.13(6)(b)
institution
951.22              Contraband in           None                       Possession of less than
county detention                                   20 grams cannabis - 893.13(6)(b)
facilities

DURESS OR NECESSITY An issue in this case is whether (defendant) acted out of [duress][necessity] in committing the crime of (crime charged) (lesser included offenses). It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress][necessity], you must find the following six elements: 1. the defendant reasonably believed [a danger][an emergency] existed which was not intentionally caused by [himself][herself]. 2(a). the [danger][emergency] threatened significant harm to [himself][herself][a third person]. (or) Give 2(b) if 2(b). the [danger][emergency] threatened death or serious escape bodily injury. charged 3. The threatened harm must have been real, imminent and impending. Give 4(a) 4(a). the defendant had no reasonable means to avoid the if escape [danger][emergency] except by committing the (crime not charged charged) (lesser included offenses). Note to If escape is charged, the court must first determine whether the Judge defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So. 2d 374 (Fla. 3d DCA 1984) and Alcantaro v. State, 407 So. 2d 922 (Fla. 1st DCA 1981) and if so, give 4b. 4(b). the defendant left [the place of [his][her] confinement][the vehicle in which [he][she] was being transported] [to][from][his][her] work on a public road] because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority. 5. the (crime charged) (lesser included offenses) must have been committed out of [duress][necessity] to avoid the [danger][emergency]. 6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses). Definitions "Imminent and impending" means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress][necessity] if [he][she] committed the crime after the danger from the threatened harm had passed. The reasonableness of the defendant's belief that [a danger][an emergency] existed should be examined in the light of all the evidence. In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed. The [danger][emergency] facing the defendant need not have been actual; however to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger][emergency] was real. If you find from the evidence that the defendant committed the (crime charged) (lesser included offenses) out of [duress][necessity], you should find the defendant not guilty. However if you find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress][necessity] you should find the defendant guilty if all the elements of the charge have been proved. Note to Duress is not a defense to an intentional homicide. See Wright v. Judge State, 402 So. 2d 193 (Fla. 3d DCA 1981). PENALTY PROCEEDINGS-CAPITAL CASES After the first paragraph on page 114 of the manual, the following additional language is proposed: Note to Give before a new penalty phase jury Judge [A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to disregard an aggravating circumstance if you have an abiding conviction that it exists. On the other hand, if, after carefully considering, comparing and weighing all the evidence, you do not have an abiding conviction that the aggravating circumstance exists, or if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the aggravating not stance has not been proved beyond a reasonable0 doubt and you should disregard it, because the doubt is reasonable. It is to the evidence introduced in this proceeding, and to it alone, that you are to look for that proof. A reasonable doubt as to the existence of an aggravating circumstance may arise from the evidence, conflicts in the evidence or the lack of evidence. If you have a reasonable doubt as to the existence of an aggravating circumstance, you should find that it does not exist. However, if you have no reasonable doubt, you should find that the aggravating circumstance does exist and give it whatever weight you feel it should receive.] 3.04(c)(2) ENTRAPMENT Note to This instruction is to be used for offenses occurring on or Judge after October 1, 1987. The defense of entrapment has been raised. (Defendant) was entrapped if 1. [he] [she] 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] [she] engaged in such conduct as the direct result of such inducement or encouragement, and 3. the person who induced or encouraged [him] [her] 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] [her] 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. When claim It is not entrapment if (defendant) had the predisposition to of entrapment commit the (crime charged). (Defendant) had the predisposition no defense if before any law enforcement officer or person acting for the er persuaded, induced, or lured (defendant), [he] [she] had a ness or willingness to commit (crime charged) if the opportunity nted itself. When claim It is also not entrapment merely because a law enforcement of entrapment officer in a good faith attempt to detect crime no defense Give a, b, (a) [provided the defendant the opportunity, means and or c as facilities to commit the offense, which the defendant applicable intended to commit and would have committed otherwise.] (b) [used tricks, decoys or subterfuge to expose the defendant's oriminal 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 the greater weight of the evidence that his criminal conduct occurred as the result of entrapment. a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the (crime charged). The state must prove defendant's predisposition to commit the (crime charged) existed prior to and independent of the enducement or encouragement. Give if An informant is an agent of law enforcement for purposes applicable of the entrapment defense. If you find that the defendant was entrapped, you should find the defendant not guilty of (crime charged). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved. Note to This instruction should be given only if there is some evidence of Judge the defendant's lack of predisposition to commit the crime. See Munoz v. State, 629 So. 2d 90 (Fla. 1993). FALSE IMPRISONMENT F.S. 787.02 Before you can find the defendant guilty of False Imprisonment, the State must prove the following threetwo elements beyond a reasonable doubt: Elements 1. (Defendant) [forcibly] [secretly] [by threat] [confined] [abducted] [imprisoned] [restrained] (victim) against [his] [her] will. 2. (Defendant) had no lawful authority. Give (a),(b), 3. (Defendant) acted for any purpose other than to: (c) or (d) as applicable a. hold for ransom or reward or as a shield or hostage. b. commit or facilitate commission of any felony, c. inflict bodily harm upon or to terrorize the victim or another person. d. interfere with the performance of any governmental or political function. Read only if Confinement of a child under the age of thirteen (13) is confinement against [his] [her] will if such confinement is without the is consent of [his] [her] parent or legal guardian. alleged and child is under 13 thirteen years of age. FELONY DUI—PRIOR CONVICTIONS F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) drove or was in actual physical control of a vehicle. 2. While driving or in actual physical control of the vehicle, (defendant) Give 2a a. [ was under the influence of [alcoholic beverages] and/or 2b as [a chemical substance] [a controlled substance] to applicable the extent that [his] [her] normal faculties were impaired.] or b. [had a blood or breath alcohol level of 0.10 0.08 percent or higher.] Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. 316.003(75) "Normal faculties" mean those faculties of a person, such as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or, (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable. However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. FELONY DUI- SERIOUS BODILY INJURY F.S. 316.193(3)(c)(2) Before you can find the defendant guilty of DUI with Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) drove or was in actual physical control of a vehicle. 2. While driving or while in actual physical control of the vehicle, (defendant) Give 2a or a. [was under the influence of [alcoholic beverages] 2b as [a chemical substance] [a controlled substance] to applicable the extent that [his] [her] normal faculties were impaired.] or b. [had a blood or breath alcohol level of 0.10 0.08 percent or higher.] 3. As a result (defendant) caused serious bodily injury to (victim). Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. "Normal faculties" mean those faculties of a person, such 316.003(75) as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. F.S. 316.1933 "Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable. However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. DUI MANSLAUGHTER F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) operated drove or was in actual physical control of a vehicle. See Magaw 2. (Defendant), by reason of such operation, caused or v. State, contributed to the cause of the death of (victim). While 537 So.2d driving or while in actual physical control of the 564 (Fla. vehicle, (defendant) 1989) Give 2(a) or a. was under the influence of [alcoholic beverages] 2(b) as [a chemical substance] [a controlled substance] to applicable the extent that [his] [her] normal faculties were impaired, or b. had a blood or breath alcohol level of 0.08 or higher. Give 3a and 3. At the time of such operation(defendant) or 3b as applicable a. [was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.] b. [had a blood or breath alcohol level of 0.10 percent or higher.] See Magaw As a result, (defendant) caused or contributed to the v. State, cause of the death of (victim). 537 So. 2d 564 (Fla. 1989) Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. "Normal faculties" mean those faculties of a person such as 316.003(75) include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or, (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable, However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS F.S. 794.05 [NEW] Before you can find the defendant guilty of sexual activity with a minor, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Victim) was 16 or 17 years of age. 2. (Defendant) was age 24 or older. 3. [(Defendant) engaged in sexual activity with a minor in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)]. Give if Sexual activity does not include an act done for a bona fide applicable medical purpose.

NOTES

[1] The revised schedule completely replaces the present version. The entire schedule, which is included in the appendix to this opinion, has been reorganized chronologically by statute number and also includes substantive changes.