In Re: Standard Jury Instructions in Criminal Cases - Report 2018-02

Supreme Court of Florida
____________
No. SC18-513
____________
IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
REPORT 2018-02.
October 25, 2018
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize the amended standard instructions for
publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes amending the following existing instructions:
2.1(d) (Insanity — Psychotropic Medication); 3.5(c) (Accessory After the Fact);
and 14.1 (Theft). In addition, the Committee proposes new instructions 21.17
(Compounding a Felony) and 29.5 ([Disorderly Conduct] [Breach of the Peace]).
The Committee published the proposed amendments in The Florida Bar News, and
received one comment from the Florida Public Defender Association, Inc.,
concerning new instructions 21.17 and 29.5. The Committee altered its proposal
for new instruction 29.5 upon consideration of the comment. The Court did not
publish the proposals after they were filed. We hereby authorize the amended and
new instructions for publication and use as set forth in the appendix to this opinion.
The more significant amendments to the instructions are discussed below.
First, instruction 2.1(d) (Insanity — Psychotropic Medication), the pretrial
instruction that is given when a defendant’s ability to proceed to trial is dependent
on the use of psychotropic medication, is modified to mirror the language in its
corresponding final charge instruction, 3.6(c) (Psychotropic Medication). The
word “Insanity” is deleted from the title because instruction 2.1(d) does not address
insanity and the word “Insanity” was recently deleted from the title of instruction
3.6(c). See In re Std. Jury Instr. in Crim. Cases—Report No. 2016-04, 206 So. 3d
14, 16 (Fla. 2016). Additionally, the italicized note at the beginning of instruction
2.1(d) is revised for uniformity with the italicized note at the beginning of
instruction 3.6(c). A new final paragraph is also added to the instruction informing
the jurors that they should not allow the defendant’s present condition in court or
any apparent side effect from the psychotropic medication that may be observed in
court to affect their deliberations.
Next, instruction 3.5(c) (Accessory After the Fact) is renumbered to 21.18,
so that it falls under chapter 21, which contains instructions for specific crimes
involving “Obstruction of Justice,” rather than under chapter 3, which contains
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instructions for “Final Charge to Jury,” because accessory after the fact is a
specific crime. Additionally, an italicized note referencing section 777.03(1)(b),
Florida Statutes (2018), is relocated to the comment section, resulting in a new
paragraph. The new paragraph addresses considerations that the court may need to
take into account if the felony alleged is child abuse, neglect of a child, aggravated
child abuse, aggravated manslaughter of a child under 18 years of age, or murder
of a child under 18 years of age.
Next, instruction 14.1 (Theft) is updated, based in part upon this Court’s
opinion in Dubose v. State, 210 So. 3d 641 (Fla. 2017), to add within the definition
of “dwelling” that an enclosure around a curtilage need not be continuous as it may
have an ungated opening for entering and exiting. The definition of “motor
vehicle” found in section 320.01(1)(a), Florida Statutes (2018), is also added to the
instruction. Further, a new paragraph is added to the comment section stating that
a special instruction will be required if the defendant found lost or abandoned
property and failed to report the description and location to a law enforcement
officer, or unlawfully appropriated the lost or abandoned property, citing section
705.102, Florida Statutes (2018).
New instruction 21.17 (Compounding a Felony) instructs upon the crime of
compounding a felony, as enacted in section 843.14, Florida Statutes (2018).
Instruction 21.17 sets forth the elements of the crime that the State must prove
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beyond a reasonable doubt, and provides that the court should define the felony
alleged. Additionally, a paragraph is added to the comment section that states
Ҥ 843.14, Fla. Stat. links the degree of the felony that was concealed to the degree
of the crime that the defendant committed.” The paragraph also states, “Although
there is no case law directly on point, the Committee on Standard Jury Instructions
in Criminal Cases relied on the logic in Bowen v. State, 791 So. 2d 44 (Fla. 2d
DCA 2001) to conclude that the State must specify the felony that the defendant
knew about and concealed.”
The existing and new criminal jury instructions, as set forth in the appendix
to this opinion, are hereby authorized for publication and use.1 New language is
indicated by underlining and deleted language is indicated by struck-through type.
In authorizing the publication and use of these instructions, we express no opinion
on their correctness and remind all interested parties that this authorization
forecloses neither requesting additional or alternative instructions nor contesting
the legal correctness of the instructions. We further caution all interested parties
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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that any comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability. The instructions as set forth in the appendix shall be
effective when this opinion becomes final.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,
for Petitioner
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APPENDIX
2.1(d) INSANITY — PSYCHOTROPIC MEDICATION
Give, if requested by defendant, at the beginning of trial and in the charge to
the jury.If the defendant’s ability to proceed to trial is dependent on the use of
psychotropic medication, give if requested by the defense, at the beginning of the
trial and in the charge to the jury. See Fla. R. Crim. P. 3.215(c).
(Defendant) currently is being administered psychotropic medication
under medical supervision for a mental or emotional condition.
Psychotropic medication is any drug or compound affecting the mind or
behavior, intellectual functions, perception, moods, or emotion and includes
anti-psychotic, anti-depressant, anti-manic, and anti-anxiety drugs.
You shall not allow the defendant’s present condition in court or any
apparent side effect from the medication that you may observe in court to
affect your deliberations.
Comment
This instruction was adopted in 2015 [157 So. 3d 1027] and amended in
2018.
14.1 THEFT
§ 812.014, Fla. Stat.
To prove the crime of Theft, the State must prove the following two
elements beyond a reasonable doubt:
1. (Defendant) knowingly and unlawfully [obtained or used]
[endeavored to obtain or to use] the (property alleged) of (victim).
2. [He] [She] did so with intent to, either temporarily or
permanently,
a. [deprive (victim) of [his] [her] right to the property or any
benefit from it.]
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b. [appropriate the property of (victim) to [his] [her] own use or
to the use of any person not entitled to it.]
Degrees. Give as applicable.
If you find the defendant guilty of theft, you must also determine if the
State has proved beyond a reasonable doubt whether:
a. [the value of the property taken was $100,000 or more.]
b. [the value of the property taken was $20,000 or more but less
than $100,000.]
c. [the value of the property taken was $10,000 or more but less
than $20,000.]
d. [the value of the property taken was $5,000 or more but less
than $10,000.]
e. [the value of the property taken was $300 or more but less than
$5,000.]
f. [the value of the property taken was $100 or more but less than
$300.]
g. [the value of the property taken was less than $100.]
h. [the property taken was a semitrailer that was deployed by a
law enforcement officer.]
i. [the property taken was cargo valued at $50,000 or more that
has entered the stream of commerce from the shipper’s loading
platform to the consignee’s receiving dock.]
j. [the property taken was cargo valued at less than $50,000 that
has entered the stream of commerce from the shipper’s loading
platform to the consignee’s receiving dock.]
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k. [the property taken was emergency medical equipment valued
at $300 or more that was taken from [a licensed facility] [an
emergency medical aircraft or vehicle].]
l. [the property taken was law enforcement equipment valued at
$300 or more that was taken from an authorized emergency
vehicle.]
m. [(defendant), individually or in concert with one or more
persons, coordinated the activities of another in committing the
theft and the value of the property taken was more than
$3,000.]
n. [the stolen property was [a will, codicil, or other testamentary
instrument] [a firearm] [a motor vehicle] [a commercially
farmed animal] [an aquaculture species raised at a certified
aquaculture facility] [a fire extinguisher] [2,000 or more pieces
of citrus fruit] [taken from a legally posted construction site] [a
stop sign] [anhydrous ammonia] [a controlled substance.
Under Florida law, (name of controlled substance) is a
controlled substance.]]
o. [the value of the property taken was $100 or more but less than
$300, and was taken from [a dwelling] [the unenclosed
curtilage of a dwelling].]
Give if applicable but only in cases of grand theft. § 812.014(2)(a)3, Fla.
Stat.
If you find the defendant guilty of theft, you must also determine if the
State has proved beyond a reasonable doubt whether:
p. [in the course of committing the theft, (defendant) used a motor
vehicle as an instrumentality, other than merely as a getaway
vehicle, to assist in committing the theft and thereby damaged
the real property of another.]
q. [in the course of committing the theft, (defendant) caused more
than $1,000 in damage to the [real] [personal] property of
another.]
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State of emergency. Applies only to elements b, c, d, j, k and l above.
If you find (defendant) guilty of theft, you must also determine if the
State has proved beyond a reasonable doubt whether:
r. [the theft was committed within a county that was subject to a
state of emergency that had been declared by the governor
under Chapter 252, the “State Emergency Management Act”
and
the perpetration of the theft was facilitated by conditions
arising from the emergency.]
Inferences. Give if applicable. § 812.022(1), Fla. Stat.
Proof that a person presented false identification, or identification not
current in respect to name, address, place of employment, or other material
aspect in connection with the leasing of personal property, or failed to return
leased property within 72 hours of the termination of the leasing agreement,
unless satisfactorily explained, gives rise to an inference that the property was
obtained or is now used with unlawful intent to commit theft.
§ 812.022(2), Fla. Stat.
Proof of possession of recently stolen property, unless satisfactorily
explained, gives rise to an inference that the person in possession of the
property knew or should have known that the property had been stolen.
§ 812.022(3), Fla. Stat. Do not give unless there is evidence of the fair
market value of the stolen property. Barfield v. State, 613 So. 2d 507 (Fla. 1st DCA
1993).
Proof of the purchase or sale of stolen property at a price substantially
below the fair market value, unless satisfactorily explained, gives rise to an
inference that the person buying or selling the property knew or should have
known that the property had been stolen.
§ 812.022(4), Fla. Stat.
Proof of the purchase or sale of stolen property by a dealer in property,
out of the regular course of business or without the usual indicia of ownership
other than mere possession, unless satisfactorily explained, gives rise to an
inference that the person buying or selling the property knew or should have
known that it had been stolen.
-9-
§ 812.022(5), Fla. Stat.
Proof that a dealer who regularly deals in used property possesses
stolen property upon which a name and phone number of a person other than
the offeror of the property are conspicuously displayed gives rise to an
inference that the dealer possessing the property knew or should have known
that the property was stolen.
§ 812.022(6), Fla. Stat.
Proof that a person was in possession of a stolen motor vehicle and that
the ignition mechanism of the motor vehicle had been bypassed or the steering
wheel locking mechanism had been broken or bypassed, unless satisfactorily
explained, gives rise to an inference that the person in possession of the stolen
motor vehicle knew or should have known that the motor vehicle had been
stolen.
Definitions. Give if applicable.
§ 316.003, Fla. Stat.
“Authorized emergency vehicles” are vehicles of the fire department
(fire patrol), police vehicles, and such ambulances and emergency vehicles of
municipal departments, public service corporations operated by private
corporations, the Department of Environmental Protection, the Department
of Health, the Department of Transportation, and the Department of
Corrections as are designated or authorized by their respective department or
the chief of police of an incorporated city or any sheriff of any of the various
counties.
§ 812.012(1), Fla. Stat.
“Cargo” means partial or entire shipments, containers, or cartons of
property which are contained in or on a trailer, motortruck, aircraft, vessel,
warehouse, freight station, freight consolidation facility, or air navigation
facility.
§ 812.014(2), Fla. Stat.
“Conditions arising from the emergency” means civil unrest, power
outages, curfews, voluntary or mandatory evacuations, or a reduction in the
presence of or response time for first responders or homeland security
personnel.
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§ 810.011(2), Fla. Stat.; Dubose v. State, 210 So. 3d 641 (Fla. 2017).
“Dwelling” means a building [or conveyance] of any kind, whether such
building [or conveyance] is temporary or permanent, mobile or immobile,
which has a roof over it and is designed to be occupied by people lodging
therein at night, together with the enclosed space of ground and outbuildings
immediately surrounding it. [The enclosure need not be continuous as it may
have an ungated opening for entering and exiting.] For purposes of theft, a
“dwelling” includes an attached porch or attached garage.
§ 812.014(2)(b)3, Fla. Stat.
“Emergency medical aircraft or vehicle” means any aircraft, ambulance
or other vehicle used as an emergency medical service vehicle that has been
issued a permit in accordance with Florida law.
§ 812.014(2)(b)3, Fla. Stat.
“Emergency medical equipment” means mechanical or electronic
apparatus used to provide emergency service and care or to treat medical
emergencies.
§ 395.002(109), Fla. Stat.
“Emergency services and care” means medical screening, examination,
and evaluation by a physician, or other medically appropriate personnel
under the supervision of a physician, to determine if an emergency medical
condition exists, and if it does, the care, treatment, or surgery by a physician
necessary to relieve or eliminate the emergency medical condition, within the
service capability of the facility.
§ 812.014(2)(b)4, Fla. Stat., and § 943.10, Fla. Stat.
“Law enforcement equipment” means any property, device, or
apparatus used by a law enforcement officer in the officer’s official business.
A law enforcement officer is any person who is elected, appointed, or
employed full time by any municipality or the state or any political
subdivision thereof; who is vested with authority to bear arms and make
arrests; and whose primary responsibility is the prevention and detection of
crime or the enforcement of the penal, criminal, traffic, or highway laws of
the state. This definition includes all certified supervisory and command
personnel whose duties include, in whole or in part, the supervision, training,
guidance, and management responsibilities of full-time law enforcement
officers, part-time law enforcement officers, or auxiliary law enforcement
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officers but does not include support personnel employed by the employing
agency.
§ 810.09(2)(d), Fla. Stat.
If the construction site is greater than one acre in area, see § 810.09(2)(d)1,
Fla. Stat., and § 810.011(5)(a), Fla. Stat.
A “legally posted construction site” means a construction site of one
acre or less in area with a sign prominently placed on the property where the
construction permits are located, in letters no less than two inches in height,
that reads in substantially the following manner: “THIS AREA IS A
DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO
TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”
§ 395.002(176), Fla. Stat.
“Licensed facility” means a hospital, ambulatory surgical center, or
mobile surgical facility licensed by the Florida Agency for Health Care
Administration. See chapter 395, Fla. Stat.
Medrano v. State, 199 So. 3d 413 (Fla. 4th DCA 2016); § 320.01, Fla. Stat.
(Some of these terms have their own statutory definitions, which should be given if
necessary.)
“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, personal delivery devices, special mobile
equipment, vehicles that run only upon a track, bicycles, swamp buggies, or
mopeds.
§ 810.09(1)(b), Fla. Stat.
“Unenclosed curtilage” means the unenclosed land or grounds, and any
outbuildings, that are directly and intimately adjacent to and connected with
the dwelling and necessary, convenient, and habitually used in connection
with that dwelling.
§ 812.012(3), Fla. Stat.
“Obtains or uses” means any manner of
a. Taking or exercising control over property.
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b. Making any unauthorized use, disposition, or transfer of
property.
c. Obtaining property by fraud, willful misrepresentation of a
future act, or false promise.
d. Conduct previously known as stealing; larceny; purloining;
abstracting; embezzlement; misapplication; misappropriation;
conversion; or obtaining money or property by false pretenses,
fraud, deception; or other conduct similar in nature.
“Endeavor” means to attempt or try.
§ 812.012(4), Fla. Stat.
“Property” means anything of value, and includes:
[real property, including things growing on, affixed to and found
in land.]
[tangible or intangible personal property, including rights,
privileges, interests, and claims.]
[services.]
§ 812.012(6), Fla. Stat.
“Services” means anything of value resulting from a person’s physical
or mental labor or skill, or from the use, possession, or presence of property,
and includes:
[repairs or improvements to property.]
[professional services.]
[private, public or government communication, transportation,
power, water, or sanitation services.]
[lodging accommodations.]
[admissions to places of exhibition or entertainment.]
§ 812.012(10), Fla. Stat.
“Value” means the market value of the property at the time and place of
the offense, or if that value cannot be satisfactorily ascertained, the cost of
replacement of the property within a reasonable time after the offense.
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If the exact value of the property cannot be ascertained, you should
attempt to determine a minimum value. If you cannot determine the
minimum value, you must find the value is less than $100.
Theft of an Instrument. Give if applicable.
In the case of a written instrument that does not have a readily
ascertainable market value, such as a check, draft, or promissory note, the
value is the amount due or collectible.
In the case of any other instrument that creates, releases, discharges or
otherwise affects any valuable legal right, privilege, or obligation, the value is
the greatest amount of economic loss that the owner of the instrument might
reasonably suffer by virtue of the loss of the instrument.
Theft of a Trade Secret. Give if applicable.
The value of a trade secret that does not have a readily ascertainable
market value is any reasonable value representing the damage to the owner
suffered by reason of losing an advantage over those who do not know of or
use the trade secret.
Theft Pursuant to One Scheme. Give if applicable.
Amounts of value of separate properties involved in thefts committed
pursuant to one scheme or course of conduct, whether the thefts are from the
same person or several persons, may be added together to determine the total
value of the theft.
Good faith defense. Give if applicable. Cliff Berry, Inc. v. State, 116 So. 3d
394 (Fla. 3d DCA 2012).
It is a defense to the charge of Theft if (defendant) had an honest, good
faith belief that [he] [she] had the right to possess the (property alleged) of
(victim).
If you have a reasonable doubt about whether (defendant) had an
honest, good faith belief, even though unreasonable or mistaken, that [he]
[she] had the right to possess the (property alleged) of (victim), you should find
[him] [her] not guilty of Theft.
If you find the State proved beyond a reasonable doubt the defendant
did not have a honest, good faith belief that [he] [she] had the right to possess
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the (property alleged) of (victim), you should find [him] [her] guilty, if all of the
elements of Theft have been proven beyond a reasonable doubt.
Lesser Included Offenses
GRAND THEFT — FIRST DEGREE (PROPERTY VALUED AT $100,000
OR MORE) — 812.014(2)(a)
INS.
CATEGORY ONE CATEGORY TWO FLA. STAT.
NO.
Grand theft — second 812.014(2)(b) 14.1
degree
Grand theft — third 812.014(2)(c)1.,2.,3. 14.1
degree
Petit theft — first 812.014(2)(e) 14.1
degree
Petit theft — second 812.014(3)(a) 14.1
degree
Trade secrets 812.081
GRAND THEFT — SECOND DEGREE (PROPERTY VALUED AT
$20,000 OR MORE BUT LESS THAN $100,000) — 812.014(2)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Grand theft — third 812.014(2)(c)1.,2., 14.1
degree 3.
Petit theft — first 812.014(2)(e) 14.1
degree
Petit theft — second 812.014(3)(a) 14.1
degree
Trade secrets 812.081
GRAND THEFT — THIRD DEGREE (PROPERTY VALUED AT $300
OR MORE BUT LESS THAN $20,000) — 812.014(2)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS.
NO.
Petit theft — first degree 812.014(2)(e) 14.1
Petit theft — second 812.014(3)(a) 14.1
degree
Trade secrets 812.081
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GRAND THEFT — THIRD DEGREE (A MOTOR VEHICLE) —
812.014(2) (c)6
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Trespass to conveyance 810.08 13.3
GRAND THEFT — THIRD DEGREE (PROPERTY VALUED AT $100
OR MORE BUT LESS THAN $300 AND TAKEN FROM DWELLING) —
812.014(2)(d)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft — first 812.014(2)(e) 14.1
degree
Petit theft — second None 812.014(3)(a) 14.1
degree
PETIT THEFT — FIRST DEGREE — 812.014(2)(e)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft — second 812.014(3)(a) 14.1
degree
None
PETIT THEFT — FIRST DEGREE — 812.014(3)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft — second 812.014(3)(a) 14.1
degree
None
PETIT THEFT — SECOND DEGREE — 812.014(3)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
None
FELONY PETIT THEFT — 812.014(3)(c)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Petit theft — first 812.014(3)(b) 14.1
degree
Petit theft — second 812.014(3)(a) 14.1
degree
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Comments
It is error to inform the jury of a prior theft conviction. Therefore, if the
information or indictment contains an allegation of one or more prior theft
convictions, do not read that allegation and do not send the information or
indictment into the jury room. If the defendant is found guilty of a theft, the
historical fact of a previous theft conviction shall be determined beyond a
reasonable doubt in a bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691(Fla. 2000).
According to § 705.102, Fla. Stat., whenever any person finds lost or
abandoned property, such person must report the description and location of the
property to a law enforcement officer. Any person who unlawfully appropriates
such lost or abandoned property to his or her own use commits Theft. In such
cases, a special instruction will be required.
This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985],
1987 [508 So. 2d 1221], 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 2003
[850 So. 2d 1272], 2005 [911 So. 2d 766 and 915 So. 2d 609], 2008 [986 So. 2d
563], 2013 [109 So. 3d 721], and 2016 [190 So. 3d 614], and 2018.
21.17 COMPOUNDING A FELONY
§ 843.14, Fla. Stat.
To prove the crime of Compounding a Felony, the State must prove the
following four elements beyond a reasonable doubt:
1. (Defendant) knew that a[n] (felony alleged) had been committed.
2. (Felony alleged) was a felony.
Give 3a and/or 3b as applicable.
3. (Defendant)
a. took [money] [or] [a gratuity] [or] [a reward].
b. entered into an engagement to take [money] [or] [a gratuity]
[or] [a reward].
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4. (Defendant) did so upon an agreement or understanding to
[conceal] [or] [not prosecute] [or] [not give evidence of] [or]
[compound] that (felony alleged).
The Court instructs you that on the date[s] alleged in the charging
document, (felony alleged) was a felony.
The Court should define the felony alleged,
Give if applicable.
The agreement or understanding in element number 4 can be express
or implied.
Lesser Included Offense
COMPOUNDING A FELONY — 843.14
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Compounding a felony 843.14 21.17
(misdemeanor) [i.e., if
(felony alleged) is not
a capital felony, life
felony, or first degree
felony punishable by
life]
Attempt 777.04(1) 5.1
Comments
§ 843.14, Fla. Stat. links the degree of the felony that was concealed to the
degree of the crime that the defendant committed. If the felony that the defendant
concealed was a capital felony, a life felony, or a first-degree felony punishable by
life, the crime of Compounding a Felony is a third-degree felony. However, if the
felony that the defendant concealed was a first, second, or third-degree felony, the
crime of Compounding a Felony is a first-degree misdemeanor. Although there is
no case law directly on point, the Committee on Standard Jury Instructions in
Criminal Cases relied on the logic in Bowen v. State, 791 So. 2d 44 (Fla. 2d DCA
2001) to conclude that the State must specify the felony that the defendant knew
about and concealed.
This instruction was adopted in 2018.
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3.5(c)21.18 ACCESSORY AFTER THE FACT
§ 777.03(1) Fla. Stat.
To prove the crime of Accessory After the Fact, the State must prove
the following [four] [five] elements beyond a reasonable doubt:
1. A (felony alleged) was committed by (name of person committing
felony).
2. After the (felony alleged) was committed, (defendant) [maintained]
[assisted] [aided or attempted to aid] (name of person committing
felony).
3. At that time, (defendant) knew that (name of person committing
felony) had committed the (felony alleged).
4. (Defendant) did so with the intent that (name of person committing
felony) avoid or escape detection, arrest, trial, or punishment.
If the felony alleged is a third degree felony, give element #5.
5. (Defendant) was not related to (name of person committing felony)
by blood or marriage as husband, wife, parent, grandparent,
child, grandchild, brother, or sister.
Define the felony alleged.If the felony alleged is child abuse, neglect of a
child, aggravated child abuse, aggravated manslaughter of a child under 18 years
of age, or murder of a child under 18 years of age, it is a defense if the court finds
that the defendant was a victim of domestic violence. See § 777.03(1)(b), Fla. Stat.
It is not necessary for the State to prove that (defendant’s) assistance was
successful in allowing (name of person committing felony) to avoid or escape
detection, arrest, trial or punishment, nor is it necessary for the State to prove
that (name of person committing felony) was convicted.
The intent with which an act is done is an operation of the mind and,
therefore, is not always capable of direct and positive proof. It may be
established by circumstantial evidence like any other fact in a case.
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Comments
The degree and offense level of “Accessory After the Fact” depends on the
severity of the underlying felony. Accordingly, lesser included offenses must be
tailored depending on the felony alleged.
In cases involving proof of knowledge by circumstantial evidence, see
Bowen v. State, 791 So. 2d 44 (Fla. 2nd DCA 2001).
If the felony alleged is child abuse, neglect of a child, aggravated child
abuse, aggravated manslaughter of a child under 18 years of age, or murder of a
child under 18 years of age, the court may need to determine whether the defendant
is a victim of domestic violence. See § 777.03(1)(b), Fla. Stat. If a court determines
that the defendant was not a victim of domestic violence, it is unclear whether the
courts will require a jury finding on that issue.
This instruction was adopted in 1987 [508 So. 2d 1221] and amended in
2008 [995 So. 2d 489], and 2018.
29.5 [DISORDERLY CONDUCT] [BREACH OF THE PEACE]
§ 877.03, Fla. Stat.
To prove the crime of [Disorderly Conduct] [Breach of the Peace], the
State must prove the following element beyond a reasonable doubt:
(Defendant)
Give a–d as applicable.
a. committed an act or acts that [was] [were] of a nature that
corrupted the public morals; [or]
b. outraged the sense of public decency; [or].
c. affected the peace and quiet of persons who witnessed the act
or acts; [or]
d. engaged in [brawling or fighting].
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Lesser Included Offense
[DISORDERLY CONDUCT] [BREACH OF THE PEACE] —
§ 877.03
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt 777.04(1) 5.1
Comments
The statute often raises constitutional concerns. When a defendant claims
that his or her conduct constituted protected speech, a special instruction will likely
be necessary to ensure the jury does not convict a person for exercising a
constitutional right. See Chandler v. StateState, 744 So. 2d 1058 (Fla. 4th DCA
1999).
A defendant who does not initiate a fight and acts to protect himself from the
attacker may assert self-defense to the charge of Disorderly Conduct. S.D.G. v.
State, 919 So. 2d 704, 705 (Fla. 5th DCA 2006).
This instruction was adopted in 2018.
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