In Re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2014-08

Supreme Court of Florida
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No. SC14-2507
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2014-08.
[October 8, 2015]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize the amended standard instructions for
publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following existing standard criminal
jury instructions: 7.9 (Vehicular or Vessel Homicide); 11.10(f) (Lewd or
Lascivious Exhibition Over Computer Service); 11.10(g) (Lewd or Lascivious
Exhibition by a Detainee in the Presence of an Employee of a Facility); 13.1
(Burglary); 14.9 (Exploitation of [an Elderly Person] [a Disabled Adult]); 20.15
(Fraudulent Use of Personal Identification Information of a Minor); 20.16
(Fraudulent Use of Personal Identification Information of a Minor by a Parent or
Guardian); 22.5 (Setting Up, Promoting, Conducting a Lottery); 22.6 (Disposing of
Money, Property by Lottery); 22.7 (Conducting a Lottery Drawing); 22.8
(Assisting in Lottery); 22.9 (Selling Lottery Tickets); 22.10 (Possessing a Lottery
Ticket); 22.11 (Possessing Rundown Sheets, Etc.); 23.8 (Selling a Minor into
Prostitution by a [Parent] [Legal Guardian] [Person with Control of the Minor]);
29.24 (Human Trafficking); and 29.25 (Human Trafficking by a [Parent] [Legal
Guardian] [Person with Control] of a Minor). The Committee also proposes the
following new jury instruction: 20.21 (Fraudulent Use of Personal Identification
Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder]
[State Employee] [Federal Employee]). The Committee published its proposals in
The Florida Bar News. Four comments were received by the Committee. The
Court did not publish the proposals after they were filed.
Having considered the Committee’s report, the comments submitted to the
Committee, and the Committee’s response to the Court’s request for additional
information, we amend the standard jury instructions as proposed by the
Committee, with one modification discussed below, and authorize them for
publication and use.
Section 782.071, Florida Statutes (2014), defines the offense of Vehicular
Homicide, while section 782.072, Florida Statutes (2014), defines the offense of
Vessel Homicide. Element 1 of instruction 7.9 differentiates between the two
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offenses consistent with the applicable statute. Because Vessel Homicide does not
specifically provide for a separate offense for death of an unborn child, section
775.021(5),1 newly enacted during the 2014 legislative session, see ch. 2014-194,
§ 2, Laws of Fla., operates to include death of an unborn child as part of the
offense of Vessel Homicide. Vehicular Homicide, on the other hand, includes
death of an unborn child by any injury to the mother as part of the offense. Death
of an unborn child is therefore applicable to both Vessel Homicide and Vehicular
Homicide, and the italicized note in instruction 7.9 to the contrary is deleted.
We also note the following more significant changes to the jury instructions
as amended. First, regarding the lottery instructions, i.e., 22.5, 22.6, 22.7, 22.8,
22.9, 22.10, and 22.11, a citation to the case that sets out the three elements
defining “lottery,” Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939), is
added. In addition, the definition of “lottery” is simplified to only include the three
elements already set out in the instructions. Also defined are the term and phrases
1. Section 775.021(5) provides as follows:
Whoever commits an act that violates a provision of this code or
commits a criminal offense defined by another statute and thereby
causes the death of, or bodily injury to, an unborn child commits a
separate offense if the provision or statute does not otherwise
specifically provide a separate offense for such death or injury to
an unborn child.
§ 775.021(5), Fla. Stat. (2014).
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“bet,” “thing ventured,” and “prize by lot or chance.” The portion of the definition
defining “lottery” as follows is deleted: “is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.”
Next, instruction 23.8 (Selling a Minor into Prostitution by a [Parent] [Legal
Guardian] [Person with Control of the Minor]) is removed. Finally, regarding the
human trafficking instruction, 29.24, “use of coercion” is moved from the
definition section to element two of the offense, where “use of coercion” is
applicable to establishing the offense of “human trafficking.”
The new and amended criminal jury instructions, as set forth in the appendix
to this opinion, are hereby authorized for publication and use.2 New language is
indicated by underscoring, and deleted language is indicated by struck-through
type. In authorizing the publication and use of these instructions, we express no
opinion on their correctness and remind all interested parties that this authorization
forecloses neither requesting additional or alternative instructions nor contesting
the legal correctness of the instructions. We further caution all interested parties
2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
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that any comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability. The instructions as set forth in the appendix shall be
effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Sanford, Florida; and Bart Neil Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
7.9 VEHICULAR OR VESSEL HOMICIDE
§ 782.071 or § 782.072, Fla. Stat.
To prove the crime of [Vehicular] [Vessel] Homicide, the State must
prove more than a failure to use ordinary care, and must prove the following
three elements beyond a reasonable doubt:
Give 1a, 1b, or 1c as applicable. Element 1a applies to either Vehicular
Homicide or Vessel Homicide. Element 1b applies to Vehicular Homicide only.
Element 1c applies to Vessel Homicide only. See § 775.021(5), Fla. Stat.
1. a. (Victim) is dead.
b. An unborn child is dead by injury to the mother.
c. An unborn child is dead.
2. The death was caused by the operation of a [motor vehicle]
[vessel] by (defendant).
3. (Defendant) operated the [motor vehicle] [vessel] in a reckless
manner likely to cause the death of or great bodily harm to
another person.
An intent by the defendant to harm or injure the victim or any other
person is not an element to be proved by the State. The State does not have to
prove the defendant intended to harm or injure anyone. However, the reckless
operation of a [motor vehicle] [vessel] requires the State to prove more than a
failure to use ordinary care. A “reckless manner” means in willful or wanton
disregard for the safety of persons or property.
Enhanced penalty. § 782.071(1)(b) or § 782.072(2), Fla. Stat. Give if
applicable.
If you find the defendant guilty of [vVehicular] [vVessel] hHomicide,
you must then determine whether the State has further proved beyond a
reasonable doubt that:
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1. At the time of the accident, (defendant) knew, or should have
known, that the accident occurred; and
2. (Defendant) failed to give information and render aid as required
by law. (Read applicable portion of § 316.062, Fla. Stat., as charged
in information or indictment.)
However, the State is not required to prove (defendant) knew that the
accident resulted in injury or death.
Definitions.
Give if applicable. § 782.071(2), Fla. Stat. Applicable only to Vehicular
Homicide.
“Victim” includes a human being or a viable fetus which is killed as a
result of any injury to the mother. A fetus is viable when it becomes capable
of meaningful life outside the womb through standard medical measures. An
“unborn child” means a member of the species homo sapiens, at any stage of
development, who is carried in the womb.
§ 327.02(39) Fla. Stat. Applicable only to Vessel Homicide.
“Vessel” is synonymous with boat and includes every description of
watercraft, barge, and airboat, other than a seaplane on the water, used or
capable of being used as a means of transportation on water.
Lesser Included Offenses
VEHICULAR OR VESSEL HOMICIDE – 782.071 or 782.072
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Reckless driving 316.192 28.5
Reckless or careless 327.33
operation of vessel
Culpable negligence 784.05(2) 8.9
Culpable negligence 784.05(1) 8.9
Comments
Culpable negligence is a Category Two lesser included offense of both
vehicular and vessel homicide.
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This instruction was adopted in 1981 and amended in 1989, 2006 [946 So.
2d 1061], and 2008 [994 So. 2d 1038], and 2015.
11.10(f) LEWD OR LASCIVIOUS EXHIBITION
OVER COMPUTER SERVICE
§ 847.0135(5), Fla. Stat.
To prove the crime of Lewd or Lascivious Exhibition over a Computer
Online Service, the State must prove the following four elements beyond a
reasonable doubt:
Give 1a, 1b, and/or 1c as applicable.
1. a. [(Defendant) intentionally masturbated].
b. [(Defendant) intentionally exposed [his] [her] genitals in a
lewd or lascivious manner].
c. [(Defendant) committed [a sexual act] [sadomasochistic
abuse] [sexual bestiality] [simulation of any act involving
sexual activity] that did not involve actual physical or sexual
contact with (victim)].
2. The act was committed live over a [computer on-line service]
[internet service] [local bulletin board service].
3. At the time of the offense, (Vvictim) was under the age of 16 years
or
(Defendant) [knew] [should have known] [had reason to believe]
that the transmission was viewed on a computer or television
monitor by a victim in this state who was under the age of 16
years at the time of the offense.
Give 4a or 4b as applicable.
4. a. (Defendant) was 18 years of age or older at the time of the
offense.
b. (Defendant) was less than 18 years of age at the time of the
offense.
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Definitions.
The words “lewd” and “lascivious” mean the same thing: and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
§800.04(1)(a), Fla. Stat.
“Sexual activity” means the oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration of
another by any other object; however, sexual activity does not include an act
done for a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
The definition of “an object” includes a finger.
§847.001(13), Fla. Stat.
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
on another or receiving such harm oneself.
§847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between
a person and an animal involving the sex organ of the one and the mouth,
anus, or vagina of the other.
§ 800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§ 800.04(3), Fla. Stat.
The defendant’s ignorance of the (victim’s) age, (victim’s)
misrepresentation of [his] [her] age, or the defendant’s bona fide belief of
(victim’s) age is not a defense to the crime charged.
The fact that an undercover operative or law enforcement officer was
involved in the detection and investigation of an offense is not a defense to the
crime charged.
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Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE,
DEFENDANT 18 YEARS OF AGE OR OLDER — 847.0135(5)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Lewd or 847.0135(5)(c) 11.10(f)
Lascivious Exhibition
over Computer Service,
Defendant less than 18
years of age
Attempt 777.04(1) 5.1
Comment
This instruction was adopted in 2008 [998 So. 2d 1138] and amended in
2015. For offenses occurring prior to October 1, 2008, refer to section
800.04(7)(b), Florida Statutes (2007).
11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE
IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY
§ 800.09, Fla. Stat.
To prove the crime of Lewd or Lascivious Exhibition by a Detainee in
the Presence of an Employee of a Facility, the State must prove the following
three elements beyond a reasonable doubt:
1. (Defendant) was detained in a [state correctional institution]
[private correctional facility].
2. While detained, (defendant) intentionally
Give as applicable.
a. masturbated.
b. exposed [his] [her] genitals in a lewd or lascivious manner.
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c. committed [a sexual act] [sadomasochistic abuse] [sexual
bestiality] [the simulation of any act involving sexual
activity] that did not involve actual physical or sexual
contact with a victim.
3. (Defendant’s) act was intentionally committed in the presence of a
person [he] [she] knew or reasonably should have known was an
employee of the [institution] [facility].
Definitions. Give as applicable.
§ 944.02(8), Fla. Stat.
A “state correctional institution” is any prison, road camp, prison
industry, prison forestry camp, or any prison camp or prison farm or other
correctional facility, temporary or permanent, in which prisoners are housed,
worked, or maintained, under the custody and jurisdiction of the Department
of Corrections.
§ 944.710(3), Fla. Stat.
A “private correctional facility” is any facility, which is not operated by
the Department of Corrections, for the incarceration of adults or juveniles
who have been sentenced by a court and committed to the custody of the
Department of Corrections.
§ 800.09(1)(a), Fla. Stat.
“Employee” means any person employed by or performing contractual
services for a public or private entity operating a state correctional institution
or a private correctional facility or any person employed by or performing
contractual services for the corporation operating the prison industry
enhancement programs [or the correctional work programs under part II of
chapter 946]. [The term also includes any person who is a parole examiner
with the Parole Commission.]
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
§ 800.04(1)(a), Fla. Stat.
“Sexual activity” means the oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration of
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another by any other object; however, sexual activity does not include an act
done for a bona fide medical purpose.
Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
The definition of “an object” includes a finger.
§ 847.001(13), Fla. Stat.
“Sadomasochistic abuse” means flagellation or torture by or upon a
person or animal, or the condition of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction, or
satisfaction brought about as a result of sadistic violence, from inflicting harm
on another or receiving such harm oneself.
§ 847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§ 800.04(1)(d), Fla. Stat.
“Victim” means a person upon whom the acts described above was
committed or attempted or a person who has reported these acts to a law
enforcement officer.
See State v. Werner, 609 So. 2d 585 (Fla. 1992).
“In the presence of” means that a victim saw, heard, or otherwise
sensed that the act was taking place.
§ 800.04(2), Fla. Stat.
Neither a victim’s lack of chastity nor a victim’s consent is a defense to
the crime charged.
Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE
PRESENCE OF AN EMPLOYEE OF A FACILITY—800.09
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
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Attempt 777.04(1) 5.1
Unnatural and lascivious 800.02 11.8
act
Comment
This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2015.
13.1 BURGLARY
§ 810.02, Fla. Stat.
Give if the information or indictment charges entering with the intent to
commit an offense:
To prove the crime of Burglary, the State must prove the following
[two] [three] elements beyond a reasonable doubt:
1. (Defendant) entered a [structure] [conveyance] owned by or in the
possession of (person alleged).
2. At the time of entering the [structure] [conveyance], (defendant)
had the intent to commit [(the crime alleged)] [an offense other
than burglary or trespass] in that [structure] [conveyance].
The offense intended cannot be trespass or burglary.
Give element 3 only if defendant meets his or her burden of production that
he or she had an invitation or license to enter, or that the premises were open to
the public. See State v. Hicks, 421 So. 2d 510 (Fla. 1982), and State v. Waters, 436
So. 2d 66 (Fla. 1983).
3. [(Defendant) was not [licensed] [invited] to enter the [structure]
[conveyance].] [The premises were not open to the public at the
time of the entering.]
Give if applicable.
If the [license] [invitation] to enter was obtained by (defendant’s) trick or
fraud or deceit, then the [license] [invitation] to enter was not valid.
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Give if applicable.
If (defendant) entered premises that were open to the public, but then
entered an area of the premises that [he] [she] knew or should have known
was not open to the public, (defendant) committed a burglary if [he] [she]
entered that non-public area with the intent to commit [(the crime alleged)]
[an offense other than burglary or trespass] in that non-public area.
Give if applicable. § 810.07 Fla. Stat.
You may infer that (defendant) had the intent to commit a crime inside a
[structure] [conveyance] if the [entering] [attempted entering] of the
[structure] [conveyance] was done stealthily and without the consent of the
owner or occupant.
Give if applicable.
The entry necessary need not be the whole body of the defendant. It is
sufficient if the defendant, with the intent to commit a crime, extends any part
of [his] [her] body into the [structure] [conveyance].
Give if the information or indictment charges remaining with the intent to
commit an offense:
To prove the crime of Burglary, the State must prove the following two
elements beyond a reasonable doubt:
1. (Defendant) had permission or consent to enter a [structure]
[conveyance] owned by or in the possession of (person alleged).
2. (Defendant), after entering the [structure] [conveyance], remained
therein
Give 2a, 2b, or 2c as applicable.
a. surreptitiously and with the intent to commit [(the crime
alleged)] [an offense other than burglary or trespass] inside
the [structure] [conveyance].
b. after permission to remain had been withdrawn and with
the intent to commit [(the crime alleged)] [an offense other
than burglary or trespass] inside the [structure]
[conveyance].
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c. with the intent to commit or attempt to commit a [forcible
felony] [(the forcible felony alleged)] inside the [structure]
[conveyance].
The offense intended cannot be trespass or burglary. Forcible felonies are
listed in § 776.08 Fla. Stat.
Proof of intent.
The intent with which an act is done is an operation of the mind and,
therefore, is not always capable of direct and positive proof. It may be
established by circumstantial evidence like any other fact in a case.
Even though an unlawful [entering] [remaining in] a [structure]
[conveyance] is proved, if the evidence does not establish that it was done with
the intent to commit [(the crime alleged)] [an offense other than burglary or
trespass], the defendant must be found not guilty of burglary.
Proof of possession of stolen property.
Proof of possession by an accused of property recently stolen by means
of a burglary, unless satisfactorily explained, may justify a conviction of
burglary if the circumstances of the burglary and of the possession of the
stolen property convince you beyond a reasonable doubt that the defendant
committed the burglary.
Definitions; give as applicable.
§ 810.011(1), Fla. Stat.
“Structure” means any building of any kind, either temporary or
permanent, that has a roof over it, and the enclosed space of ground and
outbuildings immediately surrounding that structure.
§ 810.011(3), Fla. Stat.
“Conveyance” means any motor vehicle, ship, vessel, railroad car,
trailer, aircraft or sleeping car; and to enter a conveyance includes taking
apart any portion of the conveyance.
Burglary enhancements:
With an assault.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether, in the course of
committing the burglary, (defendant) assaulted any person. An assault is an
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intentional and unlawful threat, either by word or act, to do violence to
another, at a time when the defendant appeared to have the ability to carry
out the threat and [his] [her] act created a well-founded fear in the other
person that the violence was about to take place.
With a battery.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether, in the course of
committing the burglary, (defendant) battered any person. A battery is an
actual and intentional touching or striking of another person against that
person’s will or the intentional causing of bodily harm to another person.
While armed.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether, in the course of
committing the burglary, (defendant) was armed or armed [himself] [herself]
within the [structure] [conveyance] with [explosives] [a dangerous weapon].
Definitions. Give as applicable. § 790.001(5), Fla. Stat. See exceptions in
§ 790.001(5)(a)–(d), Fla. Stat.
“Explosive” means any chemical compound or mixture that has the
property of yielding readily to combustion or oxidation upon application of
heat, flame, or shock, including but not limited to dynamite, nitroglycerin,
trinitrotoluene, or ammonium nitrate when combined with other ingredients
to form an explosive mixture, blasting caps, and detonators.
A “dangerous weapon” is any weapon that, taking into account the
manner in which it is used, is likely to produce death or great bodily harm. It
is not necessary for the State to prove that the defendant intended to use or
was willing to use the weapon in furtherance of the burglary in order for a
weapon to constitute a “dangerous weapon.”
To “arm” oneself during the course of a burglary includes possessing a
firearm, whether loaded with ammunition or not, at any time during the
course of committing the burglary.
Structure or conveyance is a dwelling.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether the [structure]
[conveyance] [entered] [remained in] was a dwelling.
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Definition. Give as applicable.
“Dwelling” means a building [or conveyance] of any kind, whether such
building [or conveyance] is temporary or permanent, mobile or immobile,
which has a roof over it and is designed to be occupied by people lodging
therein at night, together with the enclosed space of ground and outbuildings
immediately surrounding it. For purposes of burglary, a “dwelling” includes
an attached porch or attached garage.
Human being in structure or conveyance.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether, in the course of
committing the burglary, there was another human being in the [structure]
[conveyance], at the time [he] [she] [entered] [remained in] the [structure]
[conveyance].
Offense intended is theft of a controlled substance.
If you find (defendant) guilty of burglary, you must also determine
whether the State has proved beyond a reasonable doubt that the offense
intended to be committed therein was theft of a controlled substance.
Pursuant to Florida law, (name of controlled substance) is a controlled
substance. A theft occurs when a person knowingly and unlawfully obtains or
uses or endeavors to obtain or use the property of the victim and does so with
the intent to, either temporarily or permanently, deprive the victim of his or
her right to the property or any benefit from it or to appropriate the property
of the victim to his or her own use or to the use of any person not entitled to it.
Traveling from county of residence into another county with intent to commit
a burglary and with purpose to thwart law enforcement efforts to track stolen
property. § 843.22, Fla. Stat.
If you find (defendant) guilty of [Burglary] [Attempted Burglary]
[Solicitation to Commit Burglary] [Conspiracy to Commit Burglary], you
must also determine whether the State proved beyond a reasonable doubt
that:
1. (Defendant) had a county of residence within Florida; and
2. (Defendant) travelled any distance with the intent to commit a
burglary in a county in Florida other than [his] [her] county of
residence; and
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3. The purpose of (defendant’s) travel was to thwart law enforcement
attempts to track items stolen in the burglary.
“County of residence” means the county within this state in which a
person resides.
Evidence of a person’s county of residence includes, but is not limited
to:
1. The address on a person’s driver license or state identification
card;
2. Records of real property or mobile home ownership;
3. Records of a lease agreement for residential property;
4. The county in which a person’s motor vehicle is registered;
5. The county in which a person is enrolled in an educational
institution;
6. The county in which a person is employed.
Dwelling or structure with use of motor vehicle or damage.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether, in the course of
committing the burglary, (defendant) entered a [dwelling] [structure] and
1. used a motor vehicle as an instrumentality, other than merely as a
getaway vehicle, to assist in committing the offense, and thereby
damaged the [dwelling] [structure].
or
2. caused damage to the [dwelling] [structure] [property within the
[dwelling] [structure]], in excess of $1,000.
Authorized emergency vehicle.
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If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether the conveyance
[entered] [remained in] was an authorized emergency vehicle.
Definition. See § 316.003, Fla. Stat.
An “authorized emergency vehicle” is a vehicle of the fire department
(fire patrol), police vehicles, and such ambulances and emergency vehicles of
municipal departments, public service corporations operated by private
corporations, the Department of Environmental Protection, the Department
of Health, the Department of Transportation, and the Department of
Corrections as are designated or authorized by their respective department or
the chief of police of an incorporated city or any sheriff of a county.
State of emergency.
The definitions of structure, dwelling, and conveyance are different for
counties where a state of emergency has been declared under chapter 252. See §
810.011(1), (2), and (3), Fla. Stat.
If you find (defendant) guilty of burglary, you must also determine if the
State has proved beyond a reasonable doubt whether
1. the burglary was committed within a county that was subject to a
state of emergency that had been declared by the governor under
chapter 252, the “State Emergency Management Act,”
and
2. the perpetration of the burglary was facilitated by conditions
arising from the emergency.
Definition.
The term “conditions arising from the emergency” means civil
unrest, power outages, curfews, voluntary or mandatory evacuations, or a
reduction in the presence of or response time for first responders or homeland
security personnel.
§ 810.011(4), Fla. Stat.
An act is committed “in the course of committing” if it occurs in the
attempt to commit the offense or in flight after the attempt or commission.
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Lesser Included Offenses
BURGLARY WITH ASSAULT OR BATTERY OR WHILE ARMED OR
WITH USE OF MOTOR VEHICLE OR PROPERTY DAMAGE —
810.02(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Burglary 810.02(4) 13.1
Aggravated battery 784.045 8.4
Persons Engaged in 790.07(2) 10.3
Criminal Offense Having
Firearm
Battery 784.03 8.3
Aggravated assault 784.021 8.2
Persons Engaged in 790.07(1) 10.3
Criminal Offense Having
Weapon
Assault 784.011 8.1
Attempt 777.04(1) 5.1
Burglary 810.02(3) 13.1
Trespass 810.08(2)(a) 13.3
Trespass 810.08(2)(b) 13.3
Trespass 810.08(2)(c) 13.3
Criminal Mischief 806.13 12.4
- 20 -
BURGLARY OF DWELLING; BURGLARY OF STRUCTURE OR
CONVEYANCE WITH HUMAN BEING INSIDE; BURGLARY OF AN
AUTHORIZED EMERGENCY VEHICLE — 810.02(3)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Burglary 810.02(4) 13.1
Attempt 777.04(1) 5.1
Trespass 810.08(2)(a) 13.3
Trespass 810.08(2)(b) 13.3
Trespass 810.08(2)(c) 13.3
BURGLARY — 810.02(4)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Trespass 810.08(2)(a) 13.3
Trespass 810.08(2)(b) 13.3
Trespass 810.08(2)(c) 13.3
Criminal Mischief 806.13 12.4
Comments
When the compounded offense of burglary with an assault or burglary with a
battery is charged and the jury convicts on the lesser included offense of trespass,
the jury can also consider a second conviction on the lesser included offenses of
assault or battery depending on the crime charged. See Gian-Grasso v. State, 899
So. 2d 392 (Fla. 4th DCA 2005).
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1997 [697 So. 2d 84], 2003 [850 So. 2d 1272], 2007 [962 So. 2d 310], 2008 [986
So. 2d 563], and 2013 [109 So. 3d 721], and 2015.
- 21 -
14.9 EXPLOITATION OF [AN ELDERLY PERSON]
[A DISABLED ADULT]
§ 825.103, Fla. Stat.
To prove the crime of Exploitation of [an Elderly Person] [Disabled
Adult], the State must prove the following [three] [four] elements beyond a
reasonable doubt:
Give as applicable.
Fla. Stat. § 825.103(1)(a), Fla. Stat.
1. (Victim) was [an elderly person] [a disabled adult].
2. (Defendant) knowingly used deception or intimidation to [obtained
or used] [endeavored to obtain or use] (victim’s) [funds] [assets]
[property].
3. (Defendant) did so with the intent to
Give as applicable.
a. temporarily or permanently deprive (victim) of the use,
benefit, or possession of [his] [her] [funds] [assets]
[property];
b. benefit someone other than (victim).
4. At the time, (defendant) [stood in a position of trust and
confidence] [had a business relationship] with (victim).
Fla. Stat. § 825.103(1)(b), Fla. Stat.
1. (Victim) was [an elderly person] [a disabled adult].
2. (Defendant) [obtained or used] [endeavored to obtain or use]
[conspired with another to obtain or use] (victim’s) [funds]
[assets] [property].
3. (Defendant) did so with the intent to
Give as applicable.
- 22 -
a. temporarily or permanently deprive (victim) of the use,
benefit, or possession of [his] [her] [funds] [assets]
[property];
b. benefit someone other than (victim).
4. At the time, (defendant) knew or reasonably should have known
that (victim) lacked the capacity to consent.
Fla. Stat. § 825.103(1)(c), Fla. Stat.
1. (Victim) was [an elderly person] [a disabled adult].
2. (Defendant) was (victim’s) [guardian] [trustee] [agent under a
power of attorney].
3. (Defendant) breached a fiduciary duty to (victim).
4. As a result, there was an unauthorized [appropriation] [sale]
[transfer] of (victim’s) property.
If § 825.103(1)(c), Fla. Stat. is charged, give as applicable.
A “trustee” must be an individual.
An “unauthorized appropriation” occurs when
a. the [elderly person] [disabled adult] does not receive the
reasonably equivalent financial value in goods or services; or
b. the fiduciary, appointed as an agent under power of attorney to
act on behalf of (victim),
i. commits fraud in obtaining [his] [her] appointment; or
ii. abuses [his] [her] powers; or
iii. [wastes] [embezzles] [intentionally mismanages] the assets
of the [principal] [beneficiary]; or
iv. acts contrary to the principal’s sole [benefit] [best interest].
c. the fiduciary, appointed as a [guardian] [trustee] for (victim),
- 23 -
i. commits fraud in obtaining [his] [her] appointment; or
ii. abuses [his] [her] powers; or
iii. [wastes] [embezzles] [intentionally mismanages] the assets
of the [ward] [beneficiary of the trust].
§ 825.103(1)(d), Fla. Stat.
1. (Victim) was [an elderly person] [a disabled adult].
2. (Defendant) [misappropriated] [misused] [transferred without
authorization] money belonging to (victim) from a [personal
account] [joint account created with the intent that only (victim)
enjoyed all rights, interests, and claims to moneys deposited in
such account] [convenience account].
3. (Victim) placed the funds, owned the funds, and was the sole
[contributor] [payee] of the funds before the [misappropriation]
[misuse] [unauthorized transfer].
§ 825.103(1)(e), Fla. Stat.
1. (Victim) was [an elderly person] [a disabled adult].
2. (Defendant) [intentionally] [negligently] failed to effectively use
(victim’s) income and assets for the necessities required for
(victim’s) support and maintenance.
3. At the time, (defendant) was a [caregiver] [person who stood in a
position of trust and confidence] with (victim).
Give if applicable. Note: The statutory inference does not apply to persons
in the business of making loans or to bona fide charitable donations to nonprofit
organizations that qualify for tax exempt status under the Internal Revenue Code.
§ 825.103(2)(b), Fla. Stat.
You may, but are not required to, draw an inference of exploitation of
(victim), if you find the State has proved beyond a reasonable doubt that:
a. (Victim) was 65 years or older;
- 24 -
b. (Defendant) was a nonrelative of (victim);
c. (Victim), while still alive, transferred [money] [property] valued in
excess of $10,000 in [a single transaction] [multiple transactions]
to (defendant);
d. (Victim) knew (defendant) for fewer than 2 years before the first
transfer; and
e. (Victim) did not receive the reasonably equivalent financial value
in [goods] [services].
You may not draw an inference of exploitation of (victim) if the transfer
involved a valid loan, in writing, with definite repayment dates. However, you
may draw an inference of exploitation of (victim), even if the transfer involved
a valid loan, in writing, with definite repayment dates, if the repayment of the
loan was in default, in whole or in part, for more than 65 days.
If the transfer had no definite repayment dates in writing, you may
draw an inference of exploitation of (victim) regardless of whether the transfer
was denoted by the parties as a gift or a loan.
Give as applicable.
If you find (defendant) guilty of Exploitation of [an Elderly Person] [a
Disabled Adult], you must then determine whether the State has proven
beyond a reasonable doubt that:
a. the [funds] [assets] [property] involved in the exploitation of the
[elderly person] [disabled adult] [is] [are] valued at
$100,000$50,000 or more;
b. the [funds] [assets] [property] involved in the exploitation of the
[elderly person] [disabled adult] [is] [are] valued at
$20,000$10,000 or more, but less than $100,000 $50,000;
c. the [funds] [assets] [property] involved in the exploitation of the
[elderly person] [disabled adult] [is] [are] valued at less than
$20,000$10,000.
- 25 -
Definitions. Give as applicable.
Fla. Stat. § 825.101(1), Fla. Stat.
“Business relationship” means a relationship between two or more
individuals or entities where there exists an oral or written contract or
agreement for goods or services.
Fla. Stat. § 825.101(3).
“Deception” means:
a. Misrepresenting or concealing a material fact relating to:
1. Services rendered, disposition of property, or use of
property, when such services or property are intended to
benefit [an elderly person] [disabled adult];
2. Terms of a contract or agreement entered into with [an
elderly person] [disabled adult]; or
3. An existing or preexisting condition of any property
involved in a contract or agreement entered into with [an
elderly person] [disabled adult]; or
b. Using any misrepresentation, false pretense, or false promise in
order to induce, encourage, or solicit [an elderly person[ [disabled
adult] to enter into a contract or agreement.
Fla. Stat. § 825.101(43), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person's ability to perform the
normal activities of daily living.
Fla. Stat. § 825.101(54), Fla. Stat.
“Elderly person” means a person 60 years of age or older who is
suffering from the infirmities of aging as manifested by advanced age or
organic brain damage, or other physical, mental, or emotional dysfunctioning,
to the extent that the ability of the person to provide adequately for the
person's own care or protection is impaired.
Fla. Stat. § 825.101(65), Fla. Stat.
“Endeavor” means to attempt or try.
- 26 -
Fla. Stat. § 825.101(8).
“Intimidation” means the communication by word or act to [an elderly
person] [disabled adult] that the [elderly person] [disabled adult] will be
deprived of food, nutrition, clothing, shelter, supervision, medicine, medical
services, money, or financial support or will suffer physical violence.
Fla. Stat. § 825.101(97), Fla. Stat.
“Lacks capacity to consent” means an impairment by reason of mental
illness, developmental disability, organic brain disorder, physical illness or
disability, chronic use of drugs, chronic intoxication, short-term memory loss,
or other cause, that causes [an elderly person] [disabled adult] to lack
sufficient understanding or capacity to make or communicate reasonable
decisions concerning the [elderly person's] [disabled adult's] person or
property.
Fla. Stat. § 825.101(108), Fla. Stat.
“Obtains or uses” means any manner of:
a. Taking or exercising control over property; or
b. Making any use, disposition, or transfer of property.
Fla. Stat. § 825.101(119), Fla. Stat.
“Position of trust and confidence” with respect to [an elderly person] [a
disabled adult] means the position of a person who:
a. Is a parent, spouse, adult child, or other relative by blood or
marriage of the [elderly person] [disabled adult];
b. Is a joint tenant or tenant in common with the [elderly person]
[disabled adult];
c. Has a legal or fiduciary relationship with the [elderly person]
[disabled adult], including, but not limited to, a court-appointed
or voluntary guardian, trustee, attorney, or conservator;
d. Is a caregiver of the [elderly person] [disabled adult].
e. Is any other person who has been entrusted with or has assumed
responsibility for the use or management of the [elderly person's]
[disabled adult's] [funds] [assets] [property].
- 27 -
Fla. Stat. § 825.101(2), Fla. Stat.
“Caregiver” means a person who has been entrusted with or has
assumed responsibility for the care or the property of [an elderly person]
[disabled adult]. “Caregiver” includes, but is not limited to, relatives, court-
appointed or voluntary guardians, adult household members, neighbors,
health care providers, and employees and volunteers of facilities.
Fla. Stat. § 825.101(76), Fla. Stat.
“Facility” means any location providing day or residential care or
treatment for elderly persons or disabled adults. The term “facility” may
include, but is not limited to, any hospital, training center, state institution,
nursing home, assisted living facility, adult family-care home, adult day care
center, group home, mental health treatment center, or continuing care
community.
Fla. Stat. § 825.101(1210), Fla. Stat.
“Property” means anything of value and includes:
a. Real property, including things growing on, affixed to, and found
in land.
b. Tangible or intangible personal property, including rights,
privileges, interests, and claims.
c. Services.
Fla. Stat. § 825.101(1311), Fla. Stat.
“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:
a. Repairs or improvements to property.
b. Professional services.
c. Private, public, or governmental communication, transportation,
power, water, or sanitation services.
d. Lodging accommodations.
- 28 -
e. Admissions to places of exhibition or entertainment.
Fla. Stat. § 825.101(1412), Fla. Stat.
“Value” means value determined according to any of the following:
1. The market value of the property at the time and place of the
offense or, if the market value cannot be satisfactorily
ascertained, the cost of replacing the property within a reasonable
time after the offense.
2. In the case of a written instrument such as a check, draft, or
promissory note, which does not have a readily ascertainable
market value, the value is the amount due or collectible. The value
of any other instrument that creates, releases, discharges, or
otherwise affects any valuable legal right, privilege, or obligation
is the greatest amount of economic loss that the owner of the
instrument might reasonably suffer by the loss of the instrument.
3. 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 advantage
over those who do not know of or use the trade secret.
Fla. Stat. § 825.101(1412)(b), Fla. Stat.
If the value of the property cannot be ascertained, the trier of fact jury
may find the value to be not less than a certain amount; if no such minimum
value can be ascertained, the value is an amount less than $100.
Fla. Stat. § 825.101(1412)(c), Fla. Stat.
Amounts of value of separate properties involved in exploitation
committed pursuant to one scheme or course of conduct, whether the
exploitation involves the same person or several persons, may be aggregated
in determining the degree of the offensetotal value of the [funds] [assets]
[property] involved in the exploitation.
§ 655.80, Fla. Stat.
“Convenience Account” is a deposit account, other than a certificate of
deposit, in the name of one individual (principal), in which one or more other
individuals have been designated as agents with the right to make deposits to
and to withdraw funds from or draw checks on such account. The designation
- 29 -
of agents, the substitution or removal of agents, or any other change in the
contractual terms or provisions governing a convenience account may be
made only by the principal. All rights, interests, and claims in, to, and in
respect of, such deposits and convenience account and the additions thereto
shall be those of the principal only.
Lesser Included Offense
EXPLOITATION OF [AN ELDERLY PERSON]
[A DISABLED ADULT] — 825.103
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft – second 812.014(3)(a) 14.1
degree, if
§ 825.103(1)(a) or (b) is
charged
Grand Theft, if 812.014(2)(a)1. 14.1
§ 825.103(1)(a) or (b) is
charged
Grand Theft, if 812.014(2)(b)1. 14.1
§ 825.103(1)(a) or (b) is
charged
Grand Theft, if 812.014(2)(c) 14.1
§ 825.103(1)(a) or (b) is
charged
Petit Theft, if 812.014(2)(e) 14.1
§ 825.103(1)(a) or (b) is
charged
Comment
This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2015.
20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR
OLDER]
§ 817.568(6), Fla. Stat.
To prove the crime of Fraudulent Use of Personal Identification
Information of a [Minor] [Person 60 Years of Age or Older], the State must
prove the following three elements beyond a reasonable doubt:
- 30 -
1. (Defendant) willfully and without authorization fraudulently used
personal identification information concerning (victim).
2. (Victim) was less [younger than 18 years of age] [60 years of age
or older].
3. (Defendant) did so without first obtaining the consent of (victim)
[or [his] [her] legal guardian].
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
§ 817.568(1)(b), Fla. Stat.
Authorization” means empowerment, permission, or competence to act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific individual, including any name, postal or electronic mail address,
telephone number, social security number, date of birth, mother’s maiden
name, official state or United States issued driver’s license or identification
number, alien registration number, government passport number, employer
or taxpayer’s identification number, Medicaid or food stamp account number,
bank account number, credit or debit card number or personal identification
number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice
print, retina or iris image, or other unique physical representation, unique
electronic identification number, address, or routing code, medical record,
telecommunication identifying information or access device, or other number
or information that can be used to access a person’s financial resources.
Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat.,
which if alleged will require an interrogatory.
- 31 -
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR
OLDER] – 817.568(6)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
None *Fraudulent 817.568(2)(a) 20.13
Use of Personal
Identification
Information
Attempt 777.04(1) 5.1
Comments
*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully
and without authorization fraudulently using the victim’s personal identification
information is a necessary lesser included offense of this crime. However, the part
of § 817.568(2)(a), Fla. Stat. that covers the defendant possessing personal
identification information with intent to fraudulently use is not.
There are two possible enhanced penalties for this crime. See § 817.568(5)
and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015.
20.16 FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR
OLDER] BY A PARENT, OR GUARDIAN, OR PERSON WHO
EXERCISED CUSTODIAL AUTHORITY
§ 817.568(7), Fla. Stat.
To prove the crime of Fraudulent Use of Personal Identification
Information of a [Minor] [Person 60 Years of Age or Older] by a [Parent]
[Guardian] [or] [Person who Exercised Custodial Authority], the State must
prove the following three elements beyond a reasonable doubt:
- 32 -
1. (Defendant) willfully and fraudulently used personal identification
information concerning (victim).
2. (Victim) was less [younger than 18 years of age] [60 years of age
or older].
3. (Defendant) was [the parent of] [the legal guardian of] [exercised
custodial authority over] (victim) at the time.
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific individual, including any name, postal or electronic mail address,
telephone number, social security number, date of birth, mother’s maiden
name, official state or United States issued driver’s license or identification
number, alien registration number, government passport number, employer
or taxpayer’s identification number, Medicaid or food stamp account number,
bank account number, credit or debit card number or personal identification
number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice
print, retina or iris image, or other unique physical representation, unique
electronic identification number, address, or routing code, medical record,
telecommunication identifying information or access device, or other number
or information that can be used to access a person’s financial resources.
Enhanced penalty. Give if applicable. See § 817.568 (5) and (10), Fla. Stat.,
which if alleged will require an interrogatory.
- 33 -
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR
OLDER] BY A [PARENT] [GUARDIAN] [PERSON WHO EXERCISED
CUSTODIAL AUTHORITY] — 817.568(7)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
None
Fraudulent Use of 817.568(2)(a) 20.13
Personal
Identification
Information
Attempt 777.04(1) 5.1
Comments
There are two possible enhanced penalties for this crime. See § 817.568(5)
and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015.
20.21 FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [DISABLED ADULT]
[PUBLIC SERVANT] [VETERAN] [FIRST RESPONDER]
[STATE EMPLOYEE] [FEDERAL EMPLOYEE]
§ 817.568(11), Fla. Stat.
To prove the crime of Fraudulent Use of Personal Identification
Information of a [Disabled Adult] [Public Servant] [Veteran] [First
Responder] [State Employee] [Federal Employee], the State must prove the
following three elements beyond a reasonable doubt:
1. (Defendant) willfully and without authorization fraudulently used
personal identification information concerning (victim).
2. (Victim) was [a disabled adult] [a public servant] [a veteran] [a
first responder] [a state employee] [a federal employee].
- 34 -
3. (Defendant) did so without first obtaining consent of (victim).
Definitions.
“Willfully” means intentionally, knowingly, and purposely.
“Fraudulently” means purposely or intentionally suppressing the truth
or perpetrating a deception.
§ 817.568(1)(b), Fla. Stat.
“Authorization” means empowerment, permission, or competence to act.
§ 817.568(1)(f), Fla. Stat.
“Personal identification information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific individual, including any name, postal or electronic mail address,
telephone number, social security number, date of birth, mother’s maiden
name, official state or United States issued driver’s license or identification
number, alien registration number, government passport number, employer
or taxpayer’s identification number, Medicaid or food stamp account number,
bank account number, credit or debit card number or personal identification
number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice
print, retina or iris image, or other unique physical representation, unique
electronic identification number, address, or routing code, medical record,
telecommunication identifying information or access device, or other number
or information that can be used to access a person’s financial resources.
Give as applicable.
§ 825.101(3), Fla. Stat.
“Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person’s ability to perform the
normal activities of daily living.
§ 838.014(6), Fla. Stat.
“Public servant” means (a) Any officer or employee of a state, county,
municipal, or special district agency or entity; (b) Any legislative or judicial
officer or employee; (c) Any person, except a witness, who acts as a general or
special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant,
- 35 -
or hearing officer while performing a governmental function; or (d) A
candidate for election or appointment to any of the positions listed in this
subsection, or an individual who has been elected to, but has yet to officially
assume the responsibilities of, public office.
§ 1.01(14), Fla. Stat.
“Veteran” means a person who served in the active military, naval, or
air service and who was discharged or released under honorable conditions
only or who later received an upgraded discharge under honorable conditions,
notwithstanding any action by the United States Department of Veterans
Affairs on individuals discharged or released with other than honorable
discharges.
§ 125.01045(2), Fla. Stat.
“First responder” means a law enforcement officer, a firefighter, or an
emergency medical technician or paramedic who is employed by the state or a
local government. [A volunteer law enforcement officer, firefighter, or
emergency medical technician or paramedic engaged by the state or a local
government is also considered a first responder of the state or local
government for purposes of this section.]
§ 943.10(10), Fla. Stat.
“Law enforcement officer” means any person who is elected, appointed,
or employed full time by any municipality or the state or any political
subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is the prevention and detection of
crime or the enforcement of the penal, criminal, traffic, or highway laws of
the state. This definition includes all certified supervisory and command
personnel whose duties include, in whole or in part, the supervision, training,
guidance, and management responsibilities of full-time law enforcement
officers, part-time law enforcement officers, or auxiliary law enforcement
officers but does not include support personnel employed by the employing
agency.
§ 633.102(9), Fla. Stat.
“Firefighter” means an individual who holds a current and valid
Firefighter Certificate of Compliance or Special Certificate of Compliance
issued by the Division of State Fire Marshal within the Department of
Financial Services.
- 36 -
§ 401.23(17), Fla. Stat.
“Paramedic” means a person who is certified by the Department of
Health to perform basic and advanced life support.
Lesser Included Offenses
FRAUDULENT USE OF PERSONAL IDENTIFICATION
INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT]
[VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL
EMPLPOYEE] – 817.568(11)
CATEGORY ONE CATEGORY FLA. STAT. INS. NO.
TWO
*Fraudulent Use of 817.568(2)(a) 20.13
Personal
Identification
Information
Attempt 777.04(1) 5.1
Comments
*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully
and without authorization fraudulently using the victim’s personal identification
information is a necessary lesser included offense of this crime. However, the part
of § 817.568(2)(a), Fla. Stat., that covers the defendant possessing personal
identification information with intent to fraudulently use is not.
Both § 817.568(6), Fla. Stat., and § 817.568(11), Fla. Stat., criminalize
Fraudulent Use of Personal Identification Information of a Person 60 Years of Age
or Older. While both are second degree felonies, § 817.568(6), Fla. Stat., is listed
in level 8 and § 817.568(11), Fla. Stat., is unlisted, which would make it a level 4,
according to § 921.0023, Fla. Stat. If the State alleges that the defendant violated
§ 817.568(11), Fla. Stat., and that the victim was 60 years of age or older, the trial
judge should instruct using the appropriate parts of Instruction 20.15.
There are two possible enhanced penalties for this crime. See § 817.568(5)
and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a
special instruction would be necessary in order for the jury to make the appropriate
finding.
This instruction was adopted in 2015.
- 37 -
22.5 SETTING UP, PROMOTING, CONDUCTING A LOTTERY
§ 849.09(1)(a), Fla. Stat.
To prove the crime of [Setting Up] [Promoting] [Conducting] a Lottery],
the State must prove beyond a reasonable doubt that:
(Defendant) [set up] [promoted] [conducted] a lottery for [money]
[anything of value].
Definitions.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
If there is evidence of an exception referred to at the end of § 849.09(1), Fla.
Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in
§ 849.161, Fla. Stat., an appropriate instruction should be given.
- 38 -
Lesser Included Offenses
LOTTERY — 849.09(1)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(g) 22.9
Lottery 849.09(1)(h) 22.10
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k) 22.11
Playing at game of 849.11
chance by lot
Gambling devices, etc. 849.231
Attempt 777.04 5.1
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939)(holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2014 [143 So. 3d 893]
and 2015.
22.6 DISPOSING OF [MONEY], [PROPERTY] BY LOTTERY
§ 849.09(1)(b), Fla._Stat.
To prove the crime of Disposing of [Money] [Property] by Lottery, the
State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) disposed of [money] [property].
- 39 -
2. The [money] [property] was disposed of by means of a lottery.
Definitions.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
It is not enough to show that the defendant merely sold lottery tickets or
participated in the collection of ticket proceeds or the keeping of records, or
participated in determining the winners.
For conviction it must be proved that the defendant had an interest in
or control of the [money] [property] and [he] [she] caused it to be disposed of
by a lottery conducted under [his] [her] authority, direction, or supervision. It
is not necessary, however, that the State prove that the defendant performed
all the acts incident to the lottery.
- 40 -
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
Lesser Included Offenses
LOTTERY — 849.09(1)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(g) 22.9
Lottery 849.09(1)(h) 22.10
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k) 22.11
Gambling devices, etc. 849.231
Attempt 777.04 5.1
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
22.7 [CONDUCTING] [ADVERTISING] A LOTTERY DRAWING
§ 849.09(1)(c), Fla._Stat.
To prove the crime of [Conducting] [Advertising] a Lottery Drawing,
the State must prove the following two elements beyond a reasonable doubt:
- 41 -
Give a and/or b as applicable.
1a. There was a lottery. (Defendant) conducted a lottery drawing.
2b. (Defendant) conducted a drawing for the lottery advertised a
lottery drawing [in a newspaper] [or] [by [a circular] [a poster] [a
pamphlet] [radio] [telegraph] [telephone] [or otherwise]].
Definitions.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
A "lottery drawing" is the selection of the winner by chance.
It is not essential for conviction that the defendant had any other
interest or participation in the lottery.
- 42 -
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
Lesser Included Offenses
LOTTERY — 849.09(1)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(g) 22.9
Lottery 849.09(1)(h) 22.10
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k) 22.11
Gambling devices, etc. 849.231
Attempt 777.04 5.1
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
- 43 -
22.8 ASSISTING IN SETTING UP, PROMOTING, OR CONDUCTING A
LOTTERY
§ 849.09(1)(d), Fla._Stat.
To prove the crime of Assisting in Setting up, Promoting, or Conducting
a Lottery, the State must prove the following two elements beyond a reasonable
doubt:
1. There was a lottery set up, promoted, or conducted.
Give 2a or 2b as applicable.
2. a. [(Defendant) aided or assisted in setting up, promoting, or
conducting the lottery by (read from charge)].
b. [(Defendant) was interested in or connected with the lottery
by (read from charge)].
Definitions.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
- 44 -
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
Lesser Included Offenses
LOTTERY — 849.09(1)(d)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Lottery 849.09(1)(f)
Lottery 849.09(1)(g) 22.9
Lottery 849.09(1)(h) 22.10
Lottery 849.09(1)(i)
Lottery 849.09(1)(j)
Lottery 849.09(1)(k) 22.11
Playing at game of 849.11
chance by lot
Gambling devices, etc. 849.231
Attempt 777.04 5.1
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939)(holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
- 45 -
22.9 [SELLINGSALE OF LOTTERY TICKETS] [OFFERING LOTTERY
TICKETS FOR SALE] [TRANSMITTING LOTTERY TICKETS]
§ 849.09(1)(g), Fla._Stat.
To prove the crime of [SellingSale of Lottery Tickets] [Offering Lottery
Tickets for Sale] [Transmitting Lottery Tickets], the State must prove the
following element beyond a reasonable doubt that the defendant:
(Defendant) [sold] [offered for sale] [sent from one place to another
transmitted, in person or by mail or by hand of another person or in
some other way] a lottery ticket, coupon or share, or fractional part of a
lottery ticket, coupon or share, representing an interest in a live lottery
yet to be played or in a lottery that has already been played.
Definitions.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
- 46 -
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
A “lottery ticket, coupon, or share” is any paper, token, or thing that
represents the right of the possessor to receive all or any part of a prize
awarded or to be awarded in the operation of a lottery. It is not necessary that
the rights of the holder be written or printed in plain language. It is sufficient
if the ticket, coupon, share, or token, by any manner known to those familiar
with a particular lottery being played, indicates or represents the rights of its
owner or possessor.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
22.10 POSSESSING A LOTTERY TICKET
§ 849.09(1)(h), Fla._Stat.
To prove the crime of Possessing a Lottery Ticket, the State must prove
beyond a reasonable doubt that:
(Defendant) had in [his] [her] possession a lottery ticket or a coupon,
share, or token evidencing some interest in a live lottery yet to be played or in
a lottery that has already been played.
- 47 -
Definitions.
Lottery.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
Lottery ticket, coupon, or share.
A “lottery ticket, coupon, or share” is any paper, token, or thing that
represents the right of the possessor to receive all or any part of a prize
awarded or to be awarded in the operation of a lottery. It is not necessary that
the rights of the holder be written or printed in plain language. It is sufficient
if the ticket, coupon, share, or token by any manner known to those familiar
with a particular lottery being played indicates or represents the rights of its
owner or possessor.
Possession
To "possess" means to have personal charge of or exercise the right of
ownership, management, or control over the thing possessed.
- 48 -
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.
Possession.
There are two types of possession: actual possession and constructive
possession.
Actual possession.
Actual possession means the person is aware of the presence of the
object and
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the
control of the person.
Constructive possession.
Constructive possession means the person is aware of the presence of
the object, the object is in a place over which the person has control, and the
person has the ability to control the object.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over
that object when the object is in a place that the person does not control.
- 49 -
Give if applicable.
In order to establish constructive possession of an object that was in a
place (defendant) did not control, the State must prove (defendant) (1) knew
that the object was within [his] [her] presence and (2) exercised control or
ownership over the object itself.
Joint possession.
Possession may be sole or joint, that is, two or more persons may be
aware of the presence of an object and may jointly exercise control over it. In
that case, each of those persons is considered to be in possession of that object.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the [lottery ticket] [coupon, share,
or token evidencing some interest in a lottery] or
b. was within ready reach of the [lottery ticket] [coupon, share, or
token evidencing some interest in a lottery] and the [lottery ticket]
[coupon, share, or token evidencing some interest in a lottery] was
under [his] [her] control, or
c. had exclusive control of the place where the [lottery ticket]
[coupon, share, or token evidencing some interest in a lottery] was
located,
you may infer that [he] [she] was aware of the presence of the [lottery
ticket] [coupon, share, or token evidencing some interest in a lottery] and had
the ability to control [it] [them].
If (defendant) did not have exclusive control over the place where the
[lottery ticket] [coupon, share, or token evidencing some interest in a lottery]
was located, you may not infer [he] [[she] had knowledge of the presence of
the [lottery ticket] [coupon, share, or token evidencing some interest in a
lottery] or the ability to control [it] [them], in the absence of other
incriminating evidence.
- 50 -
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the
[lottery ticket] [coupon, share, or token evidencing some interest in a lottery]
and had the ability to control [it] [them] if [he] [she] had joint control over the
place where the [lottery ticket] [coupon, share, or token evidencing some
interest in a lottery] was located, and the [lottery ticket] [coupon, share, or
token evidencing some interest in a lottery] was located in a common area in
plain view and in the presence of the defendant.
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
22.11 POSSESSING RUNDOWN SHEETS, ETC.
§ 849.09(1)(k), Fla._Stat.
To prove the crime of Possessing (read from charge) [Run Down Sheets]
[Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the
State must prove the following two elements beyond a reasonable doubt:
- 51 -
1. (Defendant) had in [his] [her] possession (read from charge) [Run
Down Sheets] [Tally Sheets] [or] [Other Papers, Records,
Instruments, or Paraphernalia].
2. These articles were designed for use, directly or indirectly, in
gambling or in the conduct of a lottery.
Definitions.
Gambling.
“Gambling” is a game of chance in which the participant risks money or
property on the outcome with the expectation of gaining or losing as a result of
the game.
Lottery.
Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).
A “lottery” has three elements: is a game of chance in which smaller
sums of money or things of smaller value are risked for the chance of getting
money or property of greater value upon the happening of an uncertain event.
The three elements of a lottery are: (1) consideration — that is, a bet or thing
ventured; (2) a prize; and (3) the award or winning of the prize by lot or
chance.
A “bet” is when money or other property is risked, pledged, wagered, or
staked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result.
A “thing ventured” is when something other than money or property is
risked by a participant on the outcome of a game, contest, or uncertain or
contingent event, with the expectation of gaining or losing as a result, which
includes but is not limited to the time, inconvenience, and effort required to
attend or participate, at the expense of foregone alternatives and other
opportunities.
A “prize by lot or chance” is when the award or winning prize is
determined by a chance or uncertain or contingent event, the outcome of
which is not influenced or controlled by a participant’s skill, such as by
drawing numbers, entries, cards, or by rolling dice.
Possession
- 52 -
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.
Possession.
There are two types of possession: actual possession and constructive
possession.
Actual possession.
Actual possession means the person is aware of the presence of the
object and
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the
control of the person.
Constructive possession.
Constructive possession means the person is aware of the presence of
the object, the object is in a place over which the person has control, and the
person has the ability to control the object.
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Give if applicable.
Mere proximity to an object is not sufficient to establish control over
that object when the object is in a place that the person does not control.
Give if applicable.
In order to establish constructive possession of an object that was in a
place (defendant) did not control, the State must prove (defendant) (1) knew
that the object was within [his] [her] presence and (2) exercised control or
ownership over the object itself.
Joint possession.
Possession may be sole or joint, that is, two or more persons may be
aware of the presence of an object and may jointly exercise control over it. In
that case, each of those persons is considered to be in possession of that object.
Inferences.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012);
Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).
If you find that (defendant):
a. had direct physical custody of the [run down sheets] [tally sheets] [or]
[other papers, records, instruments, or paraphernalia], or
b. was within ready reach of the [run down sheets] [tally sheets] [or] [other
papers, records, instruments, or paraphernalia] and the [run down
sheets] [tally sheets] [or] [other papers, records, instruments, or
paraphernalia] were under [his] [her] control, or
c. had exclusive control of the place where the [run down sheets] [tally
sheets] [or] [other papers, records, instruments, or paraphernalia] were
located,
you may infer that [he] [she] was aware of the presence of the [run down
sheets] [tally sheets] [or] [other papers, records, instruments, or
paraphernalia] and had the ability to control them.
If (defendant) did not have exclusive control over the place where the
[run down sheets] [tally sheets] [or] [other papers, records, instruments, or
paraphernalia] were located, you may not infer [he] [[she] had knowledge of
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the presence of the [run down sheets] [tally sheets] [or] [other papers, records,
instruments, or paraphernalia] or the ability to control them, in the absence of
other incriminating evidence.
Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the[run
down sheets] [tally sheets] [or] [other papers, records, instruments, or
paraphernalia]] and had the ability to control them if [he] [she] had joint
control over the place where the [run down sheets] [tally sheets] [or] [other
papers, records, instruments, or paraphernalia] were located, and the [run
down sheets] [tally sheets] [or] [other papers, records, instruments, or
paraphernalia] were located in a common area in plain view and in the
presence of the defendant.
If there is evidence of an exception referred to at the end of § 849.09(1),
Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla.
Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)
(“[T]hings other than money can constitute a sufficient consideration, moving from
the participants in such scheme to the operators without any cash outlay being
made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla.
1938) (“The consideration required to support a simple contract need not be money
or anything having a monetary value, but any consist of either a benefit to the
promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater
offering a “bank night” drawing satisfied the element of consideration, even
though persons could participate in the drawing without purchasing a ticket).
This instruction was adopted in 1981 and amended in 2015.
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23.8 SELLING A MINOR INTO PROSTITUTION BY A [PARENT]
[LEGAL GUARDIAN] [PERSON WITH CONTROL OF THE MINOR]
§ 796.035, Fla. Stat.
To prove the crime of Selling a Minor Into Prostitution By a [Parent]
[Legal Guardian] [Person With Control of the Minor], the State must prove
the following four elements beyond a reasonable doubt:
1. (Defendant) [was a [parent] [legal guardian]] [had custody or
control] of (victim).
2. (Defendant) [sold or otherwise transferred custody or control of
(victim)] [offered to sell or offered to otherwise transfer custody of
(victim)].
3. (Defendant) did so [knowing] [in reckless disregard of the fact]
that as a consequence of the [sale] [transfer], (victim) will engage
in prostitution.
4. At the time, (victim) was under the age of 18 years.
Definition.
“Prostitution” is the giving or receiving of the body for sexual activity
for hire but excludes sexual activity between spouses.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2013.
29.24 HUMAN TRAFFICKING
§ 787.06(3), Fla. Stat.
To prove the crime of Human Trafficking, the State must prove the
following two elements beyond a reasonable doubt:
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1. (Defendant) knowingly, or in reckless disregard of the facts,
[engaged in] [attempted to engage in] [benefited financially by
receiving something of value from aparticipation in a venture
that subjected a person to] human trafficking.
Give as applicable
2. (Defendant) did so [knowing] [in reckless disregard of the fact]
that a person would be subject to human trafficking.
§ 787.06(3)(a)1, Fla. Stat.
The human trafficking was for the labor or services of a child.
§ 787.06(3)(a)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult.
§ 787.06(3)(b), Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult.
§ 787.06(3)(c)1, Fla. Stat.
The human trafficking was for the labor or services of a child who
was an unauthorized alien.
§ 787.06(3)(c)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult who was an unauthorized alien.
§ 787.06(3)(d), Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult who was an unauthorized
alien.
§ 787.06(3)(e)1, Fla. Stat.
The human trafficking was for the labor or services of a child by
the transfer or transport of the child from outside Florida to
within this state.
§ 787.06(3)(e)2, Fla. Stat.
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The human trafficking involved (defendant’s) use of coercion for
the labor or services of an adult by the transfer or transport of the
adult from outside Florida to within this state.
§ 787.06(3)(f)1, Fla. Stat.
The human trafficking was for commercial sexual activity of a
child by the transfer or transport of the child from outside
Florida to within this state.
§ 787.06(3)(f)2, Fla. Stat.
The human trafficking involved (defendant’s) use of coercion for
commercial sexual activity of an adult by the transfer or transport
of the adult from outside Florida to within this state.
§ 787.06(3)(g), Fla. Stat.
The human trafficking was for commercial sexual activity in
which a [child] [person who is mentally defective or mentally
incapacitated] was involved.
Definitions.
Give in all cases.
§ 787.06(2)(d), Fla. Stat.
“Human trafficking” means [transporting] [soliciting] [recruiting]
[harboring] [providing] [enticing] [maintaining] [or] [obtaining] another
person for the purpose of exploitation of that person. through:
a. [coercion for labor or services].
b. [coercion for commercial sexual activity].
c. [coercion for labor or services of any individual who is an
unauthorized alien].
d. [coercion for commercial sexual activity of any individual who is
an unauthorized alien].
e. [coercion for labor or services who does so by the transfer or
transport of any individual from outside Florida to within Florida].
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f. [coercion for commercial sexual activity who does so by the
transfer or transport of any individual from outside Florida to within
Florida].
Give in all cases, as applicable.
“Child” means a person under the age of 18.
“Adult” means a person 18 years of age or older.
Give if applicable.
§ 787.06(2)(a), Fla. Stat.
“Coercion” means:
1. Using or threatening to use physical force against any person;
Restraining, isolating, or confining or threatening to restrain,
isolate, or confine any person without lawful authority and
against her or his will;
3. Using lending or other credit methods to establish a debt by any
person when labor or services are pledged as a security for the
debt, if the value of the labor or services as reasonably assessed is
not applied toward the liquidation of the debt, the length and
nature of the labor or services are not respectively limited and
defined;
4. Destroying, concealing, removing, confiscating, withholding, or
possessing any actual or purported passport, visa, or other
immigration document, or any other actual or purported
government identification document, of any person;
5. Causing or threatening to cause financial harm to any person;
6. Enticing or luring any person by fraud or deceit; or
7. Providing a controlled substance as outlined in Schedule [I] [II] of
Florida Statute 893.03 to any person for the purpose of
exploitation of that person.:
a. [using coercion for labor or services].
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b. [using coercion for commercial sexual activity].
c. [using coercion for labor or services of any individual who
is an unauthorized alien].
d. [using coercion for commercial sexual activity of any
individual who is an unauthorized alien].
e. [using coercion for labor or services who does so by the
transfer or transport of any individual from outside
Florida to within Florida].
f. [using coercion for commercial sexual activity who does so
by the transfer or transport of any individual from outside
Florida to within Florida].
(Name of controlled substance) is a Schedule [I] [II] drug within
Florida Statute 893.03.
Give as applicable.
§ 787.06(2)(b), Fla. Stat.
“Commercial sexual activity” means:
a. (name of chapter 796 crime). (Name of chapter 796 crime) is
defined as (insert definition of Chapter 796 crime).
b. an attempt to commit (name of chapter 796 crime). An
attempt to commit (name of chapter 796 crime) is defined as
(insert definition of attempt in Instruction 5.1 and then define
the Chapter 796 crime).
c. sexually explicit performances. “Sexually explicit
performance” means an act or show, whether public or
private, that is live, photographed, recorded, or videotaped
and intended to arouse or satisfy the sexual desires or
appeal to the prurient interest.
d. the production of pornography.
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§ 787.06(2)(c), Fla. Stat. Insert definition of loan sharking from §687.071
Fla. Stat. Insert explanation of the statute of frauds from §725.01 Fla. Stat.
“Financial harm” includes [extortionate extension of credit] [loan
sharking] [employment contracts that violate the statute of frauds].
§ 787.06(2)(e), Fla. Stat.
“Labor” means work of economic or financial value.
§ 787.06(2)(f), Fla. Stat.
“Maintain” means in relation to labor or services, to secure or make
possible continued performance thereof, regardless of any initial agreement
on the part of a victim to perform such type service.
§ 787.06(2)(g), Fla. Stat.
“Obtain” means, in relation to labor or services, to secure performance
thereof.
§ 787.06(2)(h), Fla. Stat.
“Services” means any act committed at the behest of, under the
supervision of, or for the benefit of another. [The term includes, but is not
limited to [forced marriage] [servitude] [the removal of organs].]
§ 787.06(2)(j), Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).
“Unauthorized alien” means an alien who is not authorized under
federal law to be employed in the United States.
§ 787.06(2)(k), Fla. Stat.
“Venture” means any group of two or more individuals associated in
fact, whether or not a legal entity.
§ 787.06(3)(g), 794.011(1), Fla. Stat.
“Mentally incapacitated” means that a person is rendered temporarily
incapable of appraising or controlling his or her conduct due to the influence
of a narcotic, anesthetic, or intoxicating substance administered to that person
without his or her consent, or due to any other act committed upon that
person without his or her consent.
“Mentally defective” means that a person suffers from a mental disease
or defect that renders that person temporarily or permanently incapable of
appraising the nature of his or her conduct.
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Enhanced penalty. § 787.06(3)(g) and (h), Fla. Stat. Give if applicable but
only in cases where the exploitation involves commercial sexual activity.
If you find the defendant guilty of Human Trafficking Involving
Commercial Sexual Activity, you must then determine whether the State has
proven beyond a reasonable doubt that: a person under the age of [15] [18]
was involved.
Enhanced penalty. § 787.06(3)(g) and (h), Fla. Stat. Give if applicable.
If the defendant had a reasonable opportunity to observe (victim), the
State does not need to prove that the defendant knew that (victim) had not
attained the age of [15][18] years.
Give if requested. § 787.06(8), Fla. Stat.
The defendant’s ignorance of the victim’s age, the victim’s
misrepresentation of his or her age, or the defendant’s bona fide belief of the
victim’s age is not a defense to the crime charged.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
A conviction under § 787.06(3)(f)1, Fla. Stat., (human trafficking via
commercial sexual activity of a child by transport or transfer into Florida) is a
felony of the first degree, punishable by imprisonment for a term of years not
exceeding life. However, a conviction under 787.06(3)(g) (human trafficking via
commercial sexual activity where a child was involved but without a finding that
the child was transported from outside the state) is a life felony.
This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2015.
29.25 HUMAN TRAFFICKING BY A [PARENT] [LEGAL GUARDIAN]
[PERSON WITH CUSTODY OR CONTROL] OF A MINOR
§ 787.06(4), Fla. Stat.
To prove the crime of Human Trafficking By a [Parent] [Legal
Guardian] [Person With Custody or Control] of a Minor, the State must
prove the following four elements beyond a reasonable doubt:
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1. (Defendant) [was a parent] [was a legal guardian] [had custody or
control] of (victim).
2. (Defendant) [sold or otherwise transferred custody or control of
(victim)] [offered to sell or offered to otherwise transfer custody of
(victim)].
3. (Defendant) did so [knowing] [or] [in reckless disregard of the
fact] that as a consequence of the sale or transfer, (victim) would
be subjected to human trafficking.
4. At the time, (victim) was under the age of 18 years.
Definitions.
Give in all cases.
§ 787.06(2)(d), Fla. Stat.
“Human trafficking” means [transporting] [soliciting] [recruiting]
[harboring] [providing] [enticing] [maintaining] [or] [obtaining] another
person for the purpose of exploitation of that person. through:
a. [coercion for labor or services].
b. [coercion for commercial sexual activity].
c. [coercion for labor or services of any individual who is an
unauthorized alien].
d. [coercion for commercial sexual activity of any individual who is
an unauthorized alien].
e. [coercion for labor or services who does so by the transfer or
transport of any individual from outside Florida to within
Florida].
f. [coercion for commercial sexual activity who does so by the
transfer or transport of any individual from outside Florida to
within Florida].
Give in all cases, as applicable.
§ 787.06(2)(a), Fla. Stat.
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“Coercion” means:
1. Using or threatening to use physical force against any person;
Restraining, isolating, or confining or threatening to restrain,
isolate,or confine any person without lawful authority and against
her or his will;
Using lending or other credit methods to establish a debt by any person
when labor or services are pledged as a security for the debt, if the
value of the labor or services as reasonably assessed is not applied
toward the liquidation of the debt, the length and nature of the
labor or services are not respectively limited and defined;
Destroying, concealing, removing, confiscating, withholding, or
possessing any actual or purported passport, visa, or other
immigration document, or any other actual or purported
government identification document, of any person;
Causing or threatening to cause financial harm to any person;
Enticing or luring any person by fraud or deceit; or
Providing a controlled substance as outlined in Schedule [I] [II] of
Florida Statute 893.03 to any person for the purpose of:
a. [using coercion for labor or services].
b. [using coercion for commercial sexual activity].
c. [using coercion for labor or services of any individual who
is an unauthorized alien].
d. [using coercion for commercial sexual activity of any
individual who is an unauthorized alien].
e. [using coercion for labor or services who does so by the
transfer or transport of any individual from outside
Florida to within Florida].
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f. [using coercion for commercial sexual activity who does so
by the transfer or transport of any individual from outside
Florida to within Florida].
(Name of controlled substance) is a Schedule [I] [II] drug within
Florida Statute 893.03.
Give as applicable.
§ 787.06(2)(b), Fla. Stat.
“Commercial sexual activity” means:
a. (name of chapter 796 crime). (Name of chapter 796 crime) is defined
as (insert definition of Chapter 796 crime).
b. an attempt to commit (name of chapter 796 crime). An attempt to
commit (name of chapter 796 crime) is defined as (insert definition
of attempt in Instruction 5.1 and then define the Chapter 796 crime).
c. sexually explicit performances. “Sexually explicit performance”
means an act or show, whether public or private, that is live,
photographed, recorded, or videotaped and intended to arouse or
satisfy the sexual desires or appeal to the prurient interest.
d. the production of pornography.
§ 787.06(2)(c), Fla. Stat. Insert definition of loan sharking from § 687.071,
Fla. Stat. Insert explanation of the statute of frauds from § 725.01, Fla. Stat.
“Financial harm” includes [extortionate extension of credit] [loan
sharking] [employment contracts that violate the statute of frauds].
§ 787.06(2)(e), Fla. Stat.
“Labor” means work of economic or financial value.
§ 787.06(2)(f), Fla. Stat.
“Maintain” means in relation to labor or services, to secure or make
possible continued performance thereof, regardless of any initial agreement
on the part of a victim to perform such type service.
§ 787.06(2)(g), Fla. Stat.
“Obtain” means, in relation to labor or services, to secure performance
thereof.
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§ 787.06(2)(h), Fla. Stat.
“Services” means any act committed at the behest of, under the
supervision of, or for the benefit of another. [The term includes, but is not
limited to [forced marriage] [servitude] [the removal of organs].]
§ 787.06(2)(j), Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).
“Unauthorized alien” means an alien who is not authorized under
federal law to be employed in the United States.
Enhanced penalty. § 787.06(3)(h), Fla. Stat. Give if applicable but only in
cases where the exploitation involves commercial sexual activity.
If you find the defendant guilty of Human Trafficking Involving
Commercial Sexual Activity, you must then determine whether the State has
proven beyond a reasonable doubt that the minor was under the age of 15.
§ 787.06(3)(g) and (h), Fla. Stat. Give if applicable but only in cases where
the exploitation involves commercial sexual activity.
If the defendant had a reasonable opportunity to observe (victim), the
State does not need to prove that the defendant knew that (victim) had not
attained the age of [15] [or] [18] years.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2015.
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