In Re: Standard Jury Instructions in Criminal Cases - Report No. 2015-05

Supreme Court of Florida
____________
No. SC15-1174
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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT NO. 2015-05.
[April 7, 2016]
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing amendments to seventeen
existing standard criminal jury instructions and the addition of two new
instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending existing instructions 11.14 (Failure by a
Sexual Offender to Comply with Registration Requirements—Initially Register,
Report, or Provide Registration Items); 11.14(a) (Failure by a Sexual Offender to
Comply with Registration Requirements—Failure to Comply with Registration of
a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel,
or Houseboat); 11.14(b) (Failure by a Sexual Offender to Comply with
Registration Requirements—Failure to Comply with Registration of [Employment]
[Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher
Learning); 11.14(c) (Failure by a Sexual Offender to Comply with Registration
Requirements—Failure to Report to Department of Highway Safety and Motor
Vehicles); 11.14(d) (Failure by a Sexual Offender to Comply with Registration
Requirements—Failure to Report Change of Name or Address within the State or
Jurisdiction); 11.14(e) (Failure by a Sexual Offender to Comply with Registration
Requirements—Failure to Report Change of Residence to Another State or
Jurisdiction or Country); 11.14(g) (Failure by a Sexual Offender to Comply with
Registration Requirements—Failure to Report Twice a Year/Failure to Report
Quarterly/Providing False Information); 11.14(h) (Sexual Offender Definitions);
11.15 (Failure to Register as a Sexual Predator—Initially Register—In Custody,
Control or under the Supervision of the Department of Corrections); 11.15(b)
(Failure by a Sexual Predator to Comply with Registration Requirements—Failure
to Provide Required Information); 11.15(c) (Failure by a Sexual Predator to
Comply with Registration Requirements—Failure to Comply with Registration of
a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home);
11.15(d) (Failure by a Sexual Predator to Comply with Registration
Requirements—Failure to Comply with Registration of [Enrollment]
[Employment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher
Education); 11.15(e) (Failure by a Sexual Predator to Comply with Registration
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Requirements—Failure to Report to Department of Highway Safety and Motor
Vehicles); 11.15(g) (Failure by a Sexual Predator to Comply with Registration
Requirements—Failure to Report Change of Name or Address Within the State or
Jurisdiction); 11.15(h) (Failure by a Sexual Predator to Comply with Registration
Requirements—Failure to Respond to Address Verification Correspondence);
11.15(i) (Failure by a Sexual Predator to Comply with Registration
Requirements—Failure to Report Intent to Move to Another State, Jurisdiction, or
Country); and 11.15(l) (Sexual Predator Definitions). The Committee also
proposes adding new instructions 11.14(i) (Failure by a Sexual Offender to
Comply with Registration Requirements—Failure to Report Every 30 Days for
Transient Residences) and 11.15(m) (Failure by a Sexual Predator to Comply with
Registration Requirements—Failure to Report Every 30 Days for Transient
Residences).
Before filing its report with the Court, the Committee published its proposals
for comment. The Committee received one comment from the Florida Association
of Criminal Defense Lawyers (FACDL) regarding the proposed amendments to
instructions 11.14, 11.14(d), and 11.15(g). In its comment, FACDL argued that
instruction 11.14 should not be amended to include new paragraph 3(f) because the
statute upon which the paragraph is based—section 943.0435(2)(c), Florida
Statutes (2015)—is unconstitutional in that it “violates the non-delegation doctrine,
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is void for vagueness, and represents a deprivation of the due process of law.”
FACDL also suggested adding a citation to the Second District Court of Appeal’s
decision in Eveland v. State, 161 So. 3d 481 (Fla. 2d DCA 2014) to instructions
11.14(d) and 11.15(g). The Committee did not alter its proposals upon
consideration of FACDL’s comment. The Court did not publish the Committee’s
proposals for comment.
Having considered the Committee’s report and the comment received by the
Committee, we amend the standard jury instructions as proposed by the Committee
and authorize them for publication and use. We also authorize new instructions
11.14(i) and 11.15(m), as proposed by the Committee, for publication and use. In
so doing, we note that the issues raised by FACDL regarding the constitutionality
of section 943.0435(2)(c), Florida Statutes, are beyond the scope of these
proceedings. To date, no court has expressly addressed the constitutional issues
raised by FACDL regarding the current version of section 943.0435(2)(c), Florida
Statutes, and we decline to use the instant proceedings authorizing the publication
and use of standard jury instructions as the basis for addressing such issues. Such
matters are appropriate for consideration by this Court only within the context of
an actual case or controversy. See art. V, § 3(b), Fla. Const.
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The instructions, as set forth in the appendix to this opinion, are authorized
for publication and use.1 In authorizing the publication and use of these
instructions, we express no opinion on their correctness and remind all interested
parties that this authorization forecloses neither requesting additional or alternative
instructions nor contesting the legal correctness of the instructions. We further
caution all interested parties that any comments associated with the instructions
reflect only the opinion of the Committee and are not necessarily indicative of the
views of this Court as to their correctness or applicability. New language is
indicated by underlining and deleted language is indicated by struck-through type.
The instructions as set forth in the appendix shall be effective when this opinion
becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
1. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.
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Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,
for Petitioner
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Appendix
11.14 FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Initially Register, Report, or Provide Registration Items)
§ 943.0435(2)(a)–(bc), Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been
convicted as a sexual offender; therefore, you should
consider the sexual offender status an element as
proven by agreement of the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent,
temporary, or transient residence in (name of county)
County, Florida.
Give 3a, 3b, 3c, or 3d, 3e, or 3f as applicable.
3. (Defendant)
a. knowingly failed to register in person at an office of
the sheriff of (name of county) County within 48 hours
after establishing permanent, temporary, or transient
residence within this state.
b. knowingly failed to report in person at an office of the
sheriff of (name of county) County within 48 hours
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after being released from the [custody, control, or
supervision of the Florida Department of Corrections]
[custody of a private correctional facility].
c. knowingly failed to register in person at an office of
the sheriff of (name of county) County within 48 hours
after having been convicted by a court in that county
of an offense requiring registration.
d. knowingly failed to provide an office of the sheriff of
(name of county) County with [his] [her] [(name the
single unprovided registration item charged, as worded in
the statute)] [any one or more of the following items:
[his] [her] (name the unprovided registration items
charged, as worded in the statute).]
e. knowingly failed to report in person at an office of the
sheriff of (name of county) within 48 hours after any
change in vehicles owned to report those vehicle
information changes.
f. knowingly failed to provide an office of the sheriff of
(name of county) with (insert information, such as
criminal and corrections records, nonprivileged personnel
and treatment records, and evidentiary genetic markers),
which [he] [she] knew had been deemed necessary by
the Department of Law Enforcement and which was
available.
Read only if the defendant is charged with failing to provide a physical
residential address.
The defendant shall provide a physical residential address. A post office
box shall not be provided in lieu of a physical residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply but was
misinformed or otherwise prevented from complying by the office of the
sheriff.
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There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find (defendant) guilty, if all of the elements of the charge have been proven
beyond a reasonable doubt. However, if you have a reasonable doubt on the
issue of whether the office of the sheriff misinformed (defendant) or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
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Comment
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], 2013 [113 So. 3d 754], and 2014 [148 So. 3d 1204], and 2016.
11.14(a) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer,
Mobile Home, Manufactured Home, Vessel, or Houseboat)
§ 943.0435(2)(b)1., Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a. uses as [his] [her] place of residence a [motor vehicle]
[trailer] [mobile home] [manufactured home];
and
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knowingly failed to provide an office of the sheriff of (name
of county) County with [the (name the single unprovided
registration item charged, as worded in the statute)] [any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute)] of the
[motor vehicle] [trailer] [mobile home] [manufactured
home] where [he] [she] resides.
b. uses as [his] [her] place of residence a [vessel] [live-aboard
vessel] [houseboat];
and
knowingly failed to provide an office of the sheriff of (name
of county) County with [the (name the single unprovided
registration item charged, as worded in the statute)] [any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute] of the
[vessel] [live-aboard vessel] [houseboat] where [he] [she]
resides.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
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absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find (defendant) guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. The definitions for trailer, mobile home, and manufactured
home are in § 320.01, Fla. Stat., and the definitions for vessel, live-aboard vessel,
and houseboat are in § 327.02, Fla. Stat.
See instruction 11.14(h) for the other applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
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11.14(b) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Comply with Registration of [Employment] or
[Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of
Higher Learning)
§ 943.0435(2)(b)2., Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a. [is] [was] enrolled, employed, volunteering, or carrying on a
vocation at an institution of higher education in this state,
and
knowingly failed to provide an office of the sheriff of (name
of county) County with [(the name the single unprovided
registration item charged, as worded in the statute)] [any one or
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more the following items: (name the unprovided registration
items charged, as worded in the statute).]
b. [is] [was] enrolled, employed, volunteering, or carrying on a
vocation at an institution of higher education in this state.
undertook a change in [his] [her] enrollment, volunteer, or
employment status, and
knowingly failed to report this change in person at an office
of the sheriff of (name of county) County within 48 hours
after the change.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from complying with registration requirements, and the case law is
silent as to (1) which party bears the burden of persuasion of the affirmative
defense and (2) the standard for the burden of persuasion. Under the common law,
defendants had both the burden of production and the burden of persuasion on an
affirmative defense by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
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find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.14(c) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS.
(Failure to Report to Department of Highway Safety and Motor Vehicles)
§ 943.0435(3), Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
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b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a. having registered as a sexual offender with an office of the
sheriff of (name of county) County,
knowingly failed to report in person to a driver’s license
office of the Department of Highway Safety and Motor
Vehicles within 48 hours after registering to present proof
of this registration, and
knowingly failed to [secure a Florida driver’s license]
[renew [his] [her] Florida driver’s license] [secure a Florida
identification card].
b. reported in person to a driver’s license office of the
Department of Highway Safety and Motor Vehicles and
[secured a Florida driver’s license] [renewed [his] [her]
Florida driver’s license] [secured a Florida identification
card], but in doing so,
Give one or both of the following as applicable to the charge.
i. failed to report to that office that [he] [she] was a
sexual offender.
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ii. failed to provide that office with [(name the single
unprovided registration item charged, as worded in the
statute)] [any one or more of the following items:
(name the unprovided registration items charged, as
worded in the statute)].
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the Department of Highway Safety and Motor Vehicles.
There is no statute for the defense of being misinformed or otherwise
prevented from complying, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the Department of Highway Safety and Motor Vehicles
misinformed [him] [her] or otherwise prevented [him] [her] from complying
with the registration requirements, you should find [him] [her] not guilty. If
the defendant did not prove (insert appropriate burden of persuasion) that the
Department of Highway Safety and Motor Vehicles misinformed [him] [her]
or otherwise prevented [him] [her] from complying, you should find [him]
[her] guilty if all the elements of the charge have been proven beyond a
reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
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If you find that the State proved beyond a reasonable doubt that the
Department of Highway Safety and Motor Vehicles did not misinform
(defendant) or did not otherwise prevent [him] [her] from complying with the
registration requirements, you should find [him] [her] guilty, if all of the
elements of the charge have also been proven beyond a reasonable doubt.
However, if you have a reasonable doubt on the issue of whether the
Department of Highway Safety and Motor Vehicles misinformed (defendant)
or otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified.
Comments
§ 943.0435(3), Fla. Stat., does not apply if a driver license or identification
card that complies with the requirements of § 322.141(3), Fla. Stat., was previously
secured or updated under § 944.607, Fla. Stat. If this provision of the statute is an
issue in the case, the trial judge will have to draft a special instruction.
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.14(d) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Change of Name or Address within the State or
Jurisdiction)
§ 943.0435(4), Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
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a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
Give 3a, or 3b, or 3c, or 3d as applicable.
3. (Defendant)
a. knowingly failed to report in person to a driver’s license
office of the Department of Highway Safety and Motor
Vehicles,
Give i, ii, or iii as applicable.
i. when [his] [her] [driver’s license] [identification card]
was subject to renewal.
ii. within 48 hours after any change in [his] [her]
permanent, temporary, or transient residence.
iii. within 48 hours after any change in [his] [her] name
by reason of [marriage] [(specify other legal process)].
b. knowingly failed to report in person to an office of the
sheriff of (name of county) County, within 48 hours of
vacating [his] [her] permanent residence and failing to
[establish] [maintain] another [permanent] [temporary]
[transient] residence.
- 19 -
c. knowingly failed to report in person to an office of the
sheriff of (name of county) County that [he] [she] remained
at [his] [her] permanent residence, within 48 hours after
[he] [she] reported to the sheriff [his] [her] intent to vacate
[his] [her] permanent residence.
d. reported to
Give i or ii as applicable.
i. an office of the sheriff of (name of county) County
ii. a driver’s license office of the Department of Highway
Safety and Motor Vehicles
and
Give iii or iv as applicable.
iii. knowingly failed to provide that office with (name the
single unprovided registration item charged, as worded in
the statute).
iv. knowingly failed to provide that office with any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute).
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the [office of the sheriff] [Department of Highway Safety and Motor Vehicles].
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
- 20 -
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the [office of the sheriff] [Department of Highway Safety and
Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her]
from complying with the registration requirements, you should find [him]
[her] not guilty. If the defendant did not prove (insert appropriate burden of
persuasion) that the[office of the sheriff] [Department of Highway Safety and
Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her]
from complying, you should find [him] [her] guilty if all the elements of the
charge have been proven beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
[office of the sheriff] [Department of Highway Safety and Motor Vehicles] did
not misinform (defendant) or did not otherwise prevent [him] [her] from
complying with the registration requirements, you should find [him] [her]
guilty, if all of the elements of the charge have also been proven beyond a
reasonable doubt. However, if you have a reasonable doubt on the issue of
whether the [office of the sheriff] [Department of Highway Safety and Motor
Vehicles] misinformed (defendant) or otherwise prevented [him] [her] from
complying with the registration requirements, you should find [him] [her] not
guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified.
- 21 -
Comments
§ 943.0435(4)(a), Fla. Stat., requires sexual offenders to report certain
changes to the sheriff’s office within 48 hours of the change, even if unable to
secure or update a driver license or identification card. In those instances, a special
instruction will be needed.
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.14(e) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Change of Residence to Another State or
Jurisdiction or Country)
§ 943.0435(7), Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following [four] [five]
elements beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
- 22 -
3. (Defendant) intended to leave this State to establish residence in
another [state] or[jurisdiction] [country] on (date).
Give element 4 or 5, or both, as applicable.
4. a. (Defendant) knowingly failed to report in person to an office of
the sheriff in the county of [his] [her] current residence within 48
hours before the date on which [he] [she] intended to leave this
state to establish residence in another state or jurisdiction within
the United States.
b. (Defendant) knowingly failed to report in person to an office of
the sheriff in the county of [his] [her] current residence within 21
days before the date on which [he] [she] intended to leave this
state to establish residence for 5 days or more outside the United
States.
5.c. (Defendant) knowingly failed to provide the [address,
municipality, county, and state] [address and country] of [his]
[her] intended address, when [he] [she] reported to the sheriff’s
office of the county of [his] [her] current residence [his] [her]
intention to establish residence in another [state] or[jurisdiction]
[country].
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
- 23 -
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
- 24 -
11.14(g) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Twice a Year/Failure to Report Quarterly/Providing
False Information)
§ 943.0435(14)(a) or (b), Fla. Stat.
Give this statement if the charge is failure to report twice a year during the
sexual offender’s birthday month and six months later pursuant to
§ 943.0435(14)(a), Fla. Stat., or, for certain specified violators, failure to report
during the sexual offender’s birthday month and every third month thereafter
pursuant to § 943.0435(14)(b), Fla. Stat.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable if § 943.0435(14)(a), Fla. Stat., is charged.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been
convicted as a sexual offender; therefore, you should
consider the sexual offender status element as proven
by agreement of the parties.
Give 1c or 1d as applicable if § 943.0435(14)(b), Fla. Stat., is charged.
c. is a sexual offender and is required to report and
reregister as a result of a conviction for (insert relevant
factor in § 943.0435(14)(b)1.–(14)(b)10., Fla. Stat.).
d. has agreed or stipulated that [he] [she] has been
convicted as a sexual offender and that [he] [she] is
required by law to report in person during [his] [her]
birthday month and reregister every third month
following [his] [her] (year) birthday month to an office
of the sheriff in the county in which [he] [she] resides
or is otherwise located.
- 25 -
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent,
temporary, or transient residence in (name of county)
County, Florida.
Give 3a, 3b, 3c, 3d, or 3e, 3f, or 3g as applicable.
3. (Defendant)
a. knowingly failed to reregister by reporting in person
during [his] [her] birthday month in (year) to an office
of the sheriff in the county in which [he] [she] resides
or is otherwise located.
b. knowingly failed to reregister by reporting in person
during the sixth month following [his] [her] (year)
birthday month to an office of the sheriff in the
county in which [he] [she] resides or is otherwise
located.
c. knowingly failed to reregister by reporting in person
during every third month following [his] [her] (year)
birthday month to an office of the sheriff in the
county in which [he] [she] resides or is otherwise
located.
d. knowingly failed to respond to the address
verification correspondence from the Florida
Department of Law Enforcement within three weeks
from the date of the correspondence.
e. reported to an office of the sheriff of (name of county)
to reregister,
and
Give i or ii as applicable.
- 26 -
i. knowingly failed to provide that office with (name the
single unprovided registration item charged, as worded in
the statute).
ii. knowingly failed to provide that office with any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute).
f. knowingly failed to report all [electronic mail
addresses] [and] [or] [all internet identifiers].
g. knowingly provided false registration information by
act or omission.
Read only if the defendant is charged with failing to provide a physical
residential address.
The defendant shall provide a physical residential address. A post office
box shall not be provided in lieu of a physical residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
- 27 -
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the [office of the sheriff] [Florida Department of Law
Enforcement] misinformed [him] [her] or otherwise prevented [him] [her]
from complying with the registration requirements, you should find [him]
[her] not guilty. If the defendant did not prove (insert appropriate burden of
persuasion) that the [office of the sheriff] [Florida Department of Law
Enforcement] misinformed [him] [her] or otherwise prevented [him] [her]
from complying, you should find [him] [her] guilty if all the elements of the
charge have been proven beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
[office of the sheriff] [Florida Department of Law Enforcement] did not
misinform (defendant) or did not otherwise prevent [him] [her] from
complying with the registration requirements, you should find [him] [her]
guilty, if all of the elements of the charge have also been proven beyond a
reasonable doubt. However, if you have a reasonable doubt on the issue of
whether the [office of the sheriff] [Florida Department of Law Enforcement]
misinformed (defendant) or otherwise prevented [him] [her] from complying,
with the registration requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
This instruction covers some of the ways a defendant can violate
§ 943.0435(14), Fla. Stat. There are other possibilities within the statute that will
require a special instruction.
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012
[85 So. 3d 1090], 2013 [113 So. 3d 754], and 2014 [140 So. 3d 1204], and 2016.
- 28 -
11.14(h) SEXUAL OFFENDER DEFINITIONS
§ 943.0435(1), Fla. Stat.
Definitions.
“Sexual offender” means a person who (Insert the appropriate criteria
specified by § 943.0435(1)), Fla. Stat.
“Convicted” means there has been a determination of guilt as a result of
a trial or the entry of a plea of guilty or nolo contendere, regardless of
whether adjudication is withheld. (Note to Judge: For juvenile, military, federal
and out of state convictions see § 943.0435(1), Fla. Stat.)
“Institution of higher education” means a career center, community
college, college, state university, or independent postsecondary institution.
“Change in enrollment or employment status” means the
commencement or termination of enrollment or employment or a change in
location of enrollment or employment.
“Physical residential address” does not include a post office box, but
may be a location that has no specific street address.
“Permanent residence” means a place where the person abides, lodges,
or resides for 5 or more consecutive days.
“Temporary residence” means a place where the person abides, lodges,
or resides, including, but not limited to, vacation, business, or personal travel
destinations in or out of this state, for a period of 5 or more days in the
aggregate during any calendar year and which is not the person’s permanent
address or, for a person whose permanent residence is not in this state, a place
where the person is employed, practices a vocation, or is enrolled as a student
for any period of time in this state.
“Transient residence” means a place or county where a person lives,
remains, or is located for a period of 5 or more days in the aggregate during a
calendar year and which is not the person’s permanent or temporary address.
The term includes, but is not limited to, a place where the person sleeps or
seeks shelter and a location that has no specific street address.
- 29 -
“Electronic mail address” means a destination, commonly expressed as
a string of characters, to which electronic mail may be sent or delivered.
“Instant message name” means an identifier that allows a person to
communicate in real time with another person using the Internet.
“Internet identifier” means all electronic mail, chat, instant messenger,
social networking, application software, or similar names used for Internet
communication, but does not include a date of birth, social security number,
or personal identification number (PIN).
“Vehicles owned” means any motor vehicle which is registered,
coregistered, leased, titled, or rented by a sexual predator or sexual offender;
a rented vehicle that a sexual predator or sexual offender is authorized to
drive; or a vehicle for which a sexual predator or sexual offender is insured as
a driver. The term also includes any motor vehicle which is registered,
coregistered, leased, titled, or rented by a person or persons residing at a
sexual predator’s or sexual offender’s permanent residence for 5 or more
consecutive days.
“Motor vehicle” means an automobile, motorcycle, truck, trailer,
semitrailer, truck tractor and semitrailer combination, or any other vehicle
operated on the roads of this state, used to transport persons or property, and
propelled by power other than muscular power [but the term does not include
traction engines, road rollers, special mobile equipment, vehicles that run only
upon a track, bicycles, swamp buggies, or mopeds].
[“Motor vehicle” includes a recreational vehicle-type unit primarily
designed as temporary living quarters for recreational, camping, or travel use,
which either has its own motive power or is mounted on or drawn by another
vehicle.]
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and revisedamended
in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754], and 2016.
- 30 -
11.14(i) FAILURE BY A SEXUAL OFFENDER TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Every 30 Days for Transient Residences)
§ 943.0435(4)(b)2. and § 943.0435(4)(d), Fla. Stat.
Give this if the charge is failure to report every 30 days after registering
with information regarding a transient residence.
To prove the crime of Failure by a Sexual Offender to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual offender; therefore, you should consider the
sexual offender status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual offender”
or “convicted.”
2. (Defendant) established a transient residence in (name of county)
County, Florida.
3. (Defendant) knowingly failed to report the address and location
where [he] [she] maintained a transient residence, in person, to
the office of the sheriff in the county in which [he] [she]
maintained a transient residence, every 30 days after [he] [she]
initially reported to the sheriff that [he] [she] had established a
transient residence.
Read only if the defendant is charged with failing to provide a
physical residential address.
- 31 -
The defendant shall provide a physical residential address.
A post office box shall not be provided in lieu of a physical
residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the [office of the sheriff] [Florida Department of Law
Enforcement] misinformed [him] [her] or otherwise prevented [him] [her]
from complying with the registration requirements, you should find [him]
[her] not guilty. If the defendant did not prove (insert appropriate burden of
persuasion) that the [office of the sheriff] [Florida Department of Law
Enforcement] misinformed [him] [her] or otherwise prevented [him] [her]
from complying, you should find [him] [her] guilty if all the elements of the
charge have been proven beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable doubt standard:
If you find that the State proved beyond a reasonable doubt that the
[office of the sheriff] [Florida Department of Law Enforcement] did not
misinform (defendant) or did not otherwise prevent [him] [her] from
- 32 -
complying with the registration requirements, you should find [him] [her]
guilty, if all of the elements of the charge have also been proven beyond a
reasonable doubt. However, if you have a reasonable doubt on the issue of
whether the [office of the sheriff] [Florida Department of Law Enforcement]
misinformed (defendant) or otherwise prevented [him] [her] from complying
with the registration requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.14(h) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2016.
11.15 FAILURE TO REGISTER AS A SEXUAL PREDATOR
(Initially Register – In Custody, Control or under the Supervision of the
Department of Corrections)
§ 775.21(6)(b), Fla. Stat.
To prove the crime of Failure to Register as a Sexual Predator, the State
must prove the following three elements beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
- 33 -
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) is [in the custody or control of the Department of
Corrections] [under the supervision of the Department of
Corrections] [in the custody of a private correctional
facility][under the supervision of the Department of Corrections,
but not incarcerated].
3. (Defendant) [knowingly failed to register with the Department of
Corrections as a sexual predator][knowingly failed to register
with the Department of Corrections within 3 business days of
having been classified by a judge as a sexual predator].
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure to Register as a Sexual Predator
that (defendant) attempted to register as required by law but was misinformed
or otherwise prevented from timely registering by the Department of
Corrections.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the Department of Corrections misinformed [him] [her] or
otherwise prevented [him] [her] from registering, you should find [him] [her]
not guilty. If the defendant did not prove (insert appropriate burden of
persuasion) that the Department of Corrections misinformed [him] [her] or
- 34 -
otherwise prevented [him] [her] from registering, you should find [him] [her]
guilty if all the elements of the charge have been proven beyond a reasonable
doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
Department of Corrections did not misinform (defendant) or did not otherwise
prevent [him] [her] from registering, you should find [him] [her] guilty, if all
of the elements of the charge have also been proven beyond a reasonable
doubt. However, if you have a reasonable doubt on the issue of whether the
Department of Corrections misinformed (defendant) or otherwise prevented
[him] [her] from registering, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2014
[148 So. 3d 1204], and 2016.
11.15(b) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH
REGISTRATION REQUIREMENTS (Failure to Provide Required
Information)
§ 775.21(6)(a)1., Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
- 35 -
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) established or maintained a permanent, temporary, or
transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
§ 775.21(6)(a)1., Fla. Stat.
3. a. (Defendant) knowingly failed to provide an office of the
sheriff of (name of county) County with [his] [her] [(name the
single unprovided registration item charged, as worded in the
statute)] [any one or more of the following items: [his] [her]
(name the unprovided registration items charged, as worded in
the statute)].
§ 775.21(6)(a)1.c., Fla. Stat.
b. (Defendant) knowingly failed to provide an office of the
sheriff of (name of county) within 48 hours after a change in
vehicles owned to report those vehicle information changes.
Read only if the defendant is charged with failing to provide a physical
residential address.
The defendant shall provide a physical residential address. A post office
box shall not be provided in lieu of a physical residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
- 36 -
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
- 37 -
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012
[85 So. 2d 1090], 2013 [113 So. 3d 754], and 2014 [148 So. 3d 1204], and 2016.
11.15(c) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Comply with Registration of a Residence, Motor Vehicle,
Trailer, Mobile Home, or Manufactured Home)
§775.21(6)(a)1.a., Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) established or maintained a permanent, temporary, or
transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
- 38 -
3. (Defendant)
a. used as [his] [her] place of residence a [motor vehicle]
[trailer] [mobile home] [manufactured home];
and
knowingly failed to provide an office of the sheriff of (name
of county) County with [the (name the single unprovided
registration item charged, as worded in the statute)] [any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute)]of the
[motor vehicle] [trailer] [mobile home] [manufactured
home] where [he] [she] resides.
b. used as [his] [her] place of residence a [vessel] [live-aboard
vessel] [houseboat];
and
knowingly failed to provide an office of the sheriff of (name
of the county) County with [the (name the single unprovided
registration item charged, as worded in the statute)] [any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute)] of the
[vessel] [live-aboard vessel] [houseboat] where [he] [she]
resides.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
- 39 -
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions. The
definitions for trailer, mobile home, and manufactured home are in § 320.01, Fla.
Stat., and the definitions for vessel, live-aboard vessel, and houseboat are in §
327.02, Fla. Stat.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
- 40 -
Comment
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.15(d) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Comply with Registration of [Enrollment] or
[Employment] [Volunteering] [Carrying on a Vocation] at anin Institutions of
Higher Education)
§ 775.21(6)(a)1.b., Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the Court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) [established] [maintained] a permanent, temporary,
or transient residence in (name of county) County, Florida.
Give 3a, 3b, or 3c as applicable.
3. (Defendant)
- 41 -
a. [is] [was] enrolled, employed, volunteering, or
carrying on a vocation at an institution of higher
education in this state, and
knowingly failed to provide the office of the sheriff of (name
of county) County with the [(name the single unprovided
registration item charged, as worded in the statute)] [any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute)].
b. [is] [was] enrolled, employed, volunteering, or carrying on a
vocation at an institution of higher education in this state;
undertook a change in [his] [her] enrollment, volunteer, or
employment status, and
knowingly failed to report this change in person at an office
of the sheriff of (name of county) County within 48 hours
after the change.
c. [is] [was] in the custody of or under the supervision of the
Department of Corrections;
[is] [was] enrolled, employed, volunteering, or carrying on a
vocation at an institution of higher education in this state;
undertook a change in [his] [her] enrollment or employment
status, and
knowingly failed to report this change to the Department of
Corrections within 48 hours after the change.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the [office of the sheriff] [Department of Corrections].
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
- 42 -
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the [office of the sheriff][Department of Corrections]
misinformed [him] [her] or otherwise prevented [him] [her] from complying
with the registration requirements, you should find [him] [her] not guilty. If
the defendant did not prove (insert appropriate burden of persuasion) that the
[office of the sheriff] [Department of Corrections] misinformed [him] [her] or
otherwise prevented [him] [her] from complying, you should find [him] [her]
guilty if all the elements of the charge have been proven beyond a reasonable
doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
[office of the sheriff] [Department of Corrections]did not misinform
(defendant) or did not otherwise prevent [him] [her] from complying with the
registration requirements, you should find [him] [her] guilty, if all of the
elements of the charge have also been proven beyond a reasonable doubt.
However, if you have a reasonable doubt on the issue of whether the office of
the sheriff misinformed (defendant) or otherwise prevented [him] [her] from
complying with the registration requirements, you should find [him] [her] not
guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
- 43 -
Comment
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.15(e) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report to Department of Highway Safety and Motor Vehicles)
§ 775.21(6)(f), Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) [established] [maintained] a [permanent] [temporary]
[transient] residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a. was not incarcerated;
- 44 -
[he] [she] resided in the community and was [under the
supervision] [not under the supervision] of the Department
of Corrections;
[he] [she] registered as a sexual predator with an office of
the sheriff of (name of county) County; and
knowingly failed to report in person at a driver’s license
office of the Department of Highway Safety and Motor
Vehicles within 48 hours after registering to present proof
of this registration.
b. reported in person to a driver’s license office of the
Department of Highway Safety and Motor Vehicles,
and either knowingly failed to [secure a Florida
driver’s license] [renew a Florida driver’s license]
[secure an identification card] or secured a Florida
driver’s license] [renewed [his] [her] Florida driver’s
license] [secured a Florida identification card], but in
doing so,
Give one or both of the following as applicable to the charge.
i. failed to report to that office that [he] [she] was a
sexual predator.
ii. failed to provide that office with [(name the single
unprovided registration item charged, as worded in the
statute)] [any one or more of the following items:
(name the unprovided registration items charged, as
worded in the statute)].
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply withn
the requirements but was misinformed or otherwise prevented from
complying by the Department of Highway Safety and Motor Vehicles.
- 45 -
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the Department of Highway Safety and Motor Vehicles
misinformed [him] [her] or otherwise prevented [him] [her] from complying
with the registration requirements, you should find [him] [her] not guilty. If
the defendant did not prove (insert appropriate burden of persuasion) that the
Department of Highway Safety and Motor Vehicles misinformed [him] [her]
or otherwise prevented [him] [her] from complying, you should find [him]
[her] guilty if all the elements of the charge have been proven beyond a
reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
Department of Highway Safety and Motor Vehicles did not misinform
(defendant) or did not otherwise prevent [him] [her] from complying with the
registration requirements, you should find [him] [her] guilty, if all of the
elements of the charge have also been proven beyond a reasonable doubt.
However, if you have a reasonable doubt on the issue of whether the
Department of Highway Safety and Motor Vehicles misinformed (defendant)
or otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
- 46 -
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.15(g) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Change of Name or Address within the State or
Jurisdiction)
§ 775.21(6)(g), Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) [established] [maintained] a [permanent] [temporary]
[transient] residence in (name of county) County, Florida.
Give 3a, 3b, or 3c as applicable.
- 47 -
3. (Defendant)
a. knowingly failed to report in person to a driver’s license
office [when [his] [her] driver’s license or identification
card was subject to renewal] [within 48 hours after any
change in [his] [her] permanent, temporary, or transient
residence] [within 48 hours after any change in [his] [her]
name by reason of [marriage] [(specify other legal process)]].
b. knowingly failed to report in person to an office of the
sheriff of (name of county) County within 48 hours of
vacating [his] [her] permanent, temporary, or transient
residence and failing to establish or maintain another
permanent, temporary, or transient residence.
c. knowingly failed to report in person to an office of the
sheriff of (name of county) County that [he] [she] did not
vacate [his] [her] permanent, temporary, or transient
residence within 48 hours after (defendant) reported to that
agency [his] [her] intent to vacate [his] [her] permanent,
temporary, or transient residence.
d. reported to
Give i or ii as applicable.
i. an office of the sheriff of (name of county)
ii. a driver’s license office of the Department of Highway
Safety and Motor Vehicles
and
Give iii or iv as applicable.
iii. knowingly failed to provide that office with (name the
single unprovided registration item charged, as worded in
the statute).
iv. knowingly failed to provide that office with any one or
more of the following items: (name the unprovided
registration items charged, as worded in the statute).
- 48 -
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Offender to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the [office of the sheriff] [Department of Highway Safety and Motor Vehicles].
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the [office of the sheriff][Department of Highway Safety and
Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her]
from complying with the registration requirements, you should find [him]
[her] not guilty. If the defendant did not prove (insert appropriate burden of
persuasion) that the [office of the sheriff][Department of Highway Safety and
Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her]
from complying, you should find [him] [her] guilty if all the elements of the
charge have been proven beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
[office of the sheriff] [Department of Highway Safety and Motor Vehicles] did
not misinform (defendant) or otherwise prevent [him] [her] from complying
with the registration requirements, you should find [him] [her] guilty, if all of
the elements of the charge have also been proven beyond a reasonable doubt.
However, if you have a reasonable doubt on the issue of whether the [office of
- 49 -
the sheriff] [Department of Highway Safety and Motor Vehicles] misinformed
(defendant) or otherwise prevented [him] [her] from complying with the
registration requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
§ 775.21(6)(g)1., Fla. Stat., requires sexual predators to report certain
changes to the sheriff’s office within 48 hours of the change, even if unable to
secure or update a driver license or identification card. In those instances, a special
instruction will be needed.
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
11.15(h) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Respond To Address Verification Correspondence)
§ 775.21(10)(a), Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as
a sexual predator; therefore, you should consider the sexual
predator status element as proven by agreement of the
parties.
- 50 -
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not give the definition of “sexual predator”
or “convicted.”
2. (Defendant) established or maintained a permanent, temporary, or
transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. a. (Defendant) knowingly failed to respond to address
verification correspondence from the Florida Department of
Law Enforcement within three weeks from the date of the
correspondence.
b. (Defendant) knowingly provided false registration
information by act or omission.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the Florida Department of Law Enforcement.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
- 51 -
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the Florida Department of Law Enforcement misinformed
[him] [her] or otherwise prevented [him] [her] from complying with the
registration requirements, you should find [him] [her] not guilty. If the
defendant did not prove (insert appropriate burden of persuasion) that the
Florida Department of Law Enforcement misinformed [him] [her] or
otherwise prevented [him] [her] from complying, you should find [him] [her]
guilty if all the elements of the charge have been proven beyond a reasonable
doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
Florida Department of Law Enforcement did not misinform (defendant) or did
not otherwise prevent [him] [her] from complying with the registration
requirements, as worded in the statute)], you should find [him] [her] guilty, if
all of the elements of the charge have also been proven beyond a reasonable
doubt. However, if you have a reasonable doubt on the issue of whether the
Florida Department of Law Enforcement misinformed (defendant) or
otherwise prevented [him] [her] from complying, you should find [him] [her]
not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
There are other penalties in § 775.21(10)(a), Fla. Stat., that may require a
special instruction.
This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012
[85 So. 3d 1090], and 2014 [148 So. 3d 1204], and 2016.
- 52 -
11.15(i) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Intent to Move to Another State, or
Jurisdiction, or Country)
§ 775.21(6)(i), Fla. Stat.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that he has been convicted as a
sexual predator; therefore, you should consider the sexual
predator status element as proven by agreement of the
parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not also give the definition of “sexual
predator” or “convicted.”
2. (Defendant) established or maintained a permanent, temporary, or
transient residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant)
a. intended to leave this State to establish a permanent,
temporary, or transient residence in another state, or
jurisdiction, or country on (date);
and
1. knowingly failed to report in person to an office of the
sheriff in the county of [his] [her] current residence
- 53 -
within 48 hours before the date on which [he] [she]
intended to leave this state to establish residence in
another state or jurisdiction within the United States.
or
2. knowingly failed to report in person to an office of the
sheriff in the county of [his] [her] current residence
within 21 days before [his] [her] planned departure
date if the intended residence of 5 days or more was
outside of the United States.
b. (Defendant)
reported to an office of the sheriff of the county of [his]
[her] current residence [his] [her] intention to establish
residence in another state, or jurisdiction, or country;
and
knowingly failed to provide [[his] [her] (name the single
unprovided registration item charged, as worded in the statute)]
[any one or more of the following items: [his] [her] (name
the unprovided registration items charged, as worded in the
statute).]
Read only if the defendant is charged with failing to provide a physical
residential address.
The defendant shall provide a physical residential address. A post office
box shall not be provided in lieu of a physical residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure by a Sexual Predator to Comply
with Registration Requirements that (defendant) attempted to comply with the
requirements but was misinformed or otherwise prevented from complying by
the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
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burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
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Comment
This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2012
[85 So. 3d 1090], 2013 [113 So. 3d 754], and 2014 [148 So. 3d 1204], and 2016.
11.15(l) SEXUAL PREDATOR DEFINITIONS
§ 775.21(2) and (4), Fla. Stat.
Definitions.
“Sexual predator” means a person who:
has been designated a sexual predator, in a written order of a
Florida court, on or after October 1, 1993; and
has not received a pardon for the offense(s) necessary for the
designation as a sexual predator; and
the written order designating the defendant a sexual predator has
not been set aside in any judicial proceeding.
“Institution of higher education” means a career center, community
college, college, state university, or independent postsecondary institution.
“Change in enrollment or employment status” means the
commencement or termination of enrollment or employment or a change in
location of enrollment or employment.
“Convicted” means there has been a determination of guilt as a result of
a trial or the entry of a plea of guilty or nolo contendere, regardless of
whether adjudication is withheld. (Note to Judge: For military, federal and out
of state convictions, see § 775.21(2)(e), Fla. Stat.)
“Physical residential address” does not include a post office box, but
may be a location that has no specific street address.
“Permanent residence” means a place where the person abides, lodges,
or resides for 5 or more consecutive days.
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“Temporary residence” means a place where the person abides, lodges,
or resides including, but not limited to, vacation, business, or personal travel
destinations in or out of this state, for a period of 5 or more days in the
aggregate during any calendar year and which is not the person’s permanent
address or, for a person whose permanent residence is not in this state, a place
where the person is employed, practices a vocation, or is enrolled as a student
for any period of time in this state.
“Transient residence” means a place or county where a person lives,
remains, or is located for a period of 5 or more days in the aggregate during a
calendar year and which is not the person’s permanent or temporary address.
The term includes, but is not limited to, a place where the person sleeps or
seeks shelter and a location that has no specific street address.
“Internet identifier” means all electronic mail, chat, instant messenger,
social networking, application software, or similar names used for Internet
communication, but does not include a date of birth, social security number,
or personal identification number (PIN).
“Vehicles owned” means any motor vehicle which is registered,
coregistered, leased, titled, or rented by a sexual predator or sexual offender;
a rented vehicle that a sexual predator or sexual offender is authorized to
drive; or a vehicle for which a sexual predator or sexual offender is insured as
a driver. The term also includes any motor vehicle which is registered,
coregistered, leased, titled, or rented by a person or persons residing at a
sexual predator’s or sexual offender’s permanent residence for 5 or more
consecutive days.
“Motor vehicle” means an automobile, motorcycle, truck, trailer,
semitrailer, truck tractor and semitrailer combination, or any other vehicle
operated on the roads of this state, used to transport persons or property, and
propelled by power other than muscular power [but the term does not include
traction engines, road rollers, special mobile equipment, vehicles that run only
upon a track, bicycles, swamp buggies, or mopeds].
[“Motor vehicle” includes a recreational vehicle-type unit primarily
designed as temporary living quarters for recreational, camping, or travel use,
which either has its own motive power or is mounted on or drawn by another
vehicle.]
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Comment
This instruction was adopted in 2008 [983 So. 2d 531] and revisedamended
in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754], and 2016.
11.15(m) FAILURE BY A SEXUAL PREDATOR TO COMPLY
WITH REGISTRATION REQUIREMENTS
(Failure to Report Every 30 Days for Transient Residents)
§§ 775.21(6)(g)2.b. and 775.21(6)(g)4., Fla. Stat.
Give this if the charge is failure to report every 30 days after registering
with information regarding a transient residence.
To prove the crime of Failure by a Sexual Predator to Comply with
Registration Requirements, the State must prove the following three elements
beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted
as a sexual predator; therefore, you should consider the
sexual predator status element as proven by agreement of
the parties.
If the defendant offers to stipulate, the court must accept the offer after
conducting an on-the-record colloquy with the defendant. See Brown v. State, 719
So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If
there is a stipulation, the court should not also give the definition of “sexual
predator” or “convicted.”
2. (Defendant) established a transient residence in (name of county)
County, Florida.
3. (Defendant) knowingly failed to report the address and location
where [he] [she] maintained a transient residence, in person, to
the office of the sheriff in the county in which [he] [she]
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maintained a transient residence, every 30 days after [he] [she]
initially reported to the sheriff that [he] [she] had established a
transient residence.
Read only if the defendant is charged with failing to provide a physical
residential address.
The defendant shall provide a physical residential address. A post office
box shall not be provided in lieu of a physical residential address.
Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).
It is a defense to the crime of Failure to Comply with Registration
Requirements as a Sexual Predator that (defendant) attempted to comply with
the requirements but was misinformed or otherwise prevented from
complying by the office of the sheriff.
There is no statute for the defense of being misinformed or otherwise
prevented from registering, and the case law is silent as to (1) which party bears
the burden of persuasion of the affirmative defense and (2) the standard for the
burden of persuasion. Under the common law, defendants had both the burden of
production and the burden of persuasion on an affirmative defense by a
preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that (defendant) proved (insert appropriate burden of
persuasion) that the office of the sheriff misinformed [him] [her] or otherwise
prevented [him] [her] from complying with the registration requirements, you
should find [him] [her] not guilty. If the defendant did not prove (insert
appropriate burden of persuasion) that the office of the sheriff misinformed
[him] [her] or otherwise prevented [him] [her] from complying, you should
find [him] [her] guilty if all the elements of the charge have been proven
beyond a reasonable doubt.
- 59 -
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable standard:
If you find that the State proved beyond a reasonable doubt that the
office of the sheriff did not misinform (defendant) or did not otherwise prevent
[him] [her] from complying with the registration requirements, you should
find [him] [her] guilty, if all of the elements of the charge have also been
proven beyond a reasonable doubt. However, if you have a reasonable doubt
on the issue of whether the office of the sheriff misinformed (defendant) or
otherwise prevented [him] [her] from complying with the registration
requirements, you should find [him] [her] not guilty.
Definitions. See instruction 11.15(l) for the applicable definitions.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comment
This instruction was adopted in 2016.
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