PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:
1. A revised Schedule of Lesser Included Offenses.
2. A New Instruction on Duress or Necessity.
3. A Supplemental Instruction on Penalty Phase Proceedings.
4. An Amended Instruction on Entrapment.
5. An Amended Instruction on False Imprisonment.
6. Amended Instructions Relating to DUI.
7. A New Instruction on Sexual Activity with a Minor.
The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.
First, the word "intentionally" has been added to the first element in the Committee's proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term "police" in the definition of information to "law enforcement." The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.
With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.
Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE INSTRUCTIONS.
APPENDIX SCHEDULE OF LESSER INCLUDED OFFENSES COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (Fla. 1968) described these categories as follows:
1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending on the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.
The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate.
In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines:
1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See
Ray v. State, 403 So.2d 956 (Fla. 1981);
State v. Carpenter, 417 So.2d 986 (Fla. 1982).
2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime,
e.g., uttering, forgery, grand theft second degree, delivery of controlled substance.
3. Certain crimes do not have attempts,
e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy.
4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed.
5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under
F.S. 810.02 burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses.
6. Under
Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
TABLE OF LESSER INCLUDED OFFENSES ____________________________________________________________________________ SECTION CHARGED OFFENSE CATEGORY 1 CATEGORY 2 ____________________________________________________________________________ 316.193(1) Driving under the influence None Attempt ____________________________________________________________________________ 316.193(2)(b) Felony DUI — prior convictions None Attempt ____________________________________________________________________________ 316.193(3)(c) (1) DUI with damage to property or person DUI — 316.193(1) None ____________________________________________________________________________ 316.193(3)(c) (2) DUI with serious bodily injury DUI — 316.193(1) DUI — 316.193(3)(c)(1) ____________________________________________________________________________ 316.193(3)(c) (3) DUI manslaughter DUI — 316.193(1) DUI serious bodily injury — 316.193(3)(c)(2) DUI damage to person or property — 316.193(3)(c) Vehicular homicide — 782.071 ____________________________________________________________________________ 550.361 Bookmaking on grounds of permit holder (adapted from former 849.24) None Attempt ____________________________________________________________________________ 782.04(1) First degree (premeditated) murder Second degree (depraved mind) murder — 782.04(2) Manslaughter — 782.07 Second degree (felony) murder — 782.04(3) Third degree (felony murder) — 782.04(4) Vehicular homicide — 782.071 (Nonhomicide lessers) Attempt Culpable negligence — 784.05(2) Aggravated battery 784.045 Aggravated assault — 784.021 Battery — 784.03 Assault — 784.011 ____________________________________________________________________________ 782.04(1) First degree (felony) murder Second degree (depraved mind) murder — 782.04(2) Manslaughter — 782.07 Second degree (felony) murder — 782.04(3) Third degree (felony) murder — 782.04(4) (Nonhomicide lessers) Aggravated battery — 784.045 Aggravated assault — 784.021 Battery — 784.03 Assault — 784.0111
____________________________________________________________________________ 782.04(1)(a) Attempted first degree 777.04 (premeditated) murder Attempt second degree (depraved mind) murder — 782.04(2) 777.04 Attempt voluntary manslaughter — 782.07 777.04 Aggravated assault — 784.021 Aggravated battery — 784.045 Assault — 784.011 Battery — 784.03 ____________________________________________________________________________ 782.04(2) Second degree (depraved mind) murder Manslaughter — 782.07 Third degree (felony) murder — 782.04(4) Vehicular homicide — 782.071 (Nonhomicide lessers) Attempt Culpable negligence — 784.05(2) Aggravated battery — 784.045 Aggravated assault — 784.021 Battery — 784.03 Assault — 784.011 ____________________________________________________________________________ 782.04(3) Second degree (felony) murder None Third degree (felony) murder — 782.04(4) ____________________________________________________________________________ 782.051 Felony causing bodily injury None Felony causing bodily injury — 782.051(2) Felony causing bodily injury — 782.051(3) ____________________________________________________________________________ 782.04(4) Third degree (felony) murder None Aggravated assault — 784.021 Battery — 784.03 Assault — 784.011 ____________________________________________________________________________ 782.07 Manslaughter None Vehicular homicide — 782.071 (Nonhomicide lessers) Attempt Aggravated assault — 784.021 Battery — 784.03 Assault — 784.011 Culpable negligence — 784.05(1) Culpable negligence — 784.05(2) ____________________________________________________________________________ 782.071 Vehicular Homicide Reckless driving — 316.192 Culpable negligence — 784.05(1) Culpable negligence — 784.05(2) ____________________________________________________________________________ 784.011 Assault None Attempt ____________________________________________________________________________ 784.021(1)(a) Aggravated assault Assault — 784.011 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15
____________________________________________________________________________ 784.021(1)(b) Aggravated assault Assault — 784.011 Attempt 784.03 Battery None Attempt ____________________________________________________________________________ 784.045(1)(a) 1 Aggravated battery Battery — 784.03 Attempt ____________________________________________________________________________ 784.045(1)(a) 2 Aggravated battery Battery — 784.03 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 ____________________________________________________________________________ 784.045(1)(b) Aggravated battery Battery — 784.03 Attempt ____________________________________________________________________________ 784.048(2) Stalking None Attempt ____________________________________________________________________________ 784.048(3) Aggravated stalking Stalking — 784.048(2) Attempt Assault — 784.011 Improper exhibition of dangerous weapon — 790.10 ____________________________________________________________________________ 784.048(4) Aggravated stalking Stalking — 784.048(2) Attempt Violation of injunction for protection against domestic violence — 741.31(4) ____________________________________________________________________________ 784.05(2) Culpable negligence Culpable negligence — 784.05(1) None ____________________________________________________________________________ 784.07(2) Assault of law enforcement officer Assault — 784.011 Attempt ____________________________________________________________________________ 784.07(2) Battery of law enforcement officer Battery — 784.03 Attempt ____________________________________________________________________________ 784.07(2)(c) Aggravated assault on law enforcement officer Aggravated assault — 784.021 Assault on law enforcement officer — 784.07(2)(a) Assault — 784.011 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15 ____________________________________________________________________________ 784.07(2)(d) Aggravated battery on law enforcement officer Aggravated battery — 784.045 Battery on law enforcement officer — 784.07(2)(b) Battery — 784.03 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15 ____________________________________________________________________________ 784.08(2)(a) Aggravated battery on person 65 years of age or older Aggravated battery — 784.045 Battery on person 65 years of age or older — 784.08(2)(c) Battery — 784.03 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15 ____________________________________________________________________________ 784.08(2)(b) Aggravated assault on person 65 years of age or older Aggravated assault — 784.021 Assault on
person 65 years of age or older — 784.08(2)(d) Assault — 784.011 Attempt Improper exhibition of dangerous weapons or firearms — 790.10 Discharging firearms in public — 790.15 ____________________________________________________________________________ 784.08(2)(c) Battery on person 65 years of age or older Battery — 784.03 Attempt ____________________________________________________________________________ 784.08(2)(d) Assault on person 65 years of age or older Assault — 784.011 Attempt 787.01 Kidnapping False imprisonment — 787.02 Attempt Aggravated assault — 784.021(1)(b) Battery — 784.03(1)(a) Assault — 784.011 ____________________________________________________________________________ 787.02 False imprisonment None Attempt Battery — 784.03(1)(a) Assault — 784.011 ____________________________________________________________________________ 790.01(1) Carrying concealed weapons None Attempt ____________________________________________________________________________ 790.01(2) Carrying concealed firearms None Attempt ____________________________________________________________________________ 790.06 Carrying pistol or repeating rifle without first obtaining license None Attempt ____________________________________________________________________________ 790.07(1) Persons engaged in criminal offense, having weapons None Attempt (may be applicable when concealed weapon is charged) Carrying concealed weapons — 790.01(1) Improper exhibition of dangerous weapons — 790.10 ____________________________________________________________________________ 790.07(2) Persons engaged in criminal offense, having weapons None Attempt (may be applicable when concealed firearm is charged) Carrying concealed firearm — 790.01(2) Improper exhibition of dangerous firearms — 790.10 ____________________________________________________________________________ 790.10 Improper exhibition of weapon None Attempt Assault — 784.011 ____________________________________________________________________________ 790.15 Discharging firearms in public None Attempt ____________________________________________________________________________ 790.161(1) Possessing, throwing, making, placing, projecting, or discharging destructive device None None ____________________________________________________________________________ 790.161(2) Possessing, throwing, making, placing, projecting, or discharging destructive device Possessing, throwing, making, placing,
projecting, or discharging destructive device — 790.161 (1) Aggravated assault — 784.021 Assault — 784.011 ____________________________________________________________________________ 790.161(3) Possessing, throwing, making, placing, projecting, or discharging destructive device Possessing, throwing, making, placing, projecting, or discharging destructive device — 790.161(1) Possessing, throwing, making, placing, projecting, or discharging destructive device — 790.161(2) Aggravated assault — 784.021 Assault — 784.011 ____________________________________________________________________________ 790.161(4) Possessing, throwing, making, placing, projecting, or discharging destructive device Possessing, throwing, making, placing, projecting, or discharging destructive device — 790.161(1) Possessing, throwing, making, placing, projecting, or discharging destructive device — 790.161(3) Possessing, throwing, making, placing, projecting, or discharging destructive device — 790.161(2) Aggravated assault — 784.021 Assault — 784.011 ____________________________________________________________________________ 790.162 Threat to throw, project, place, or discharge any destructive device None Attempt Assault — 784.011 ____________________________________________________________________________ 790.163 False reports of bombing None None ____________________________________________________________________________ 790.164 False reports of bombing or arson or other violence to property owned by the State None Attempt False reports of bombing — 790.163 ____________________________________________________________________________ 790.17 Furnishing weapons to minors under 18 years of age, etc. None Attempt ____________________________________________________________________________ 790.18 Selling arms to minors by dealers None Attempt ____________________________________________________________________________ 790.19 Shooting or throwing missiles in dwelling None Attempt Discharging firearm in public — 790.15 ____________________________________________________________________________ 790.221 Possession of forbidden firearms None Attempt ____________________________________________________________________________ 790.23 Felons; possession of firearms unlawful; exception; penalty None Attempt (may be applicable when concealed weapon is charged) Carrying concealed firearm — 790.01(2) Carrying concealed weapon — 790.01(1)
____________________________________________________________________________ 794.011(2) (a)(b) Sexual battery — victim under 12 Battery — 784.03 Sexual battery — 794.011(5) Attempt Assault — 784.011 Aggravated assault — 784.021(1)(a) Aggravated battery — 784.045(1)(a) ____________________________________________________________________________ 794.011(3) Sexual battery — victim over 12 — weapon or force Sexual battery — 794.011(5) Battery — 784.03 Sexual battery — 794.011(2)(b) Attempt Aggravated battery — 784.045(1)(a) Aggravated assault — 784.021(1)(a) Assault — 784.011 Sexual battery — 794.011(4) ____________________________________________________________________________ 794.011(4) Sexual battery — victim over 12 — special circumstances Sexual battery — 794.011(5) Battery — 784.03 Attempt Aggravated assault — 784.021(1)(a) Assault — 784.011 ____________________________________________________________________________ 794.011(5) Sexual battery — victim over 12 — without force Battery — 784.03 Attempt Assault — 784.011 ____________________________________________________________________________ 800.02 Unnatural and lascivious act None Attempt ____________________________________________________________________________ 800.03 Exposure of sexual organs None Unnatural and lascivious act — 800.02 ____________________________________________________________________________ 800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child None Attempt Assault — 784.011 Battery — 784.03 Unnatural and lascivious act — 800.02 ____________________________________________________________________________ 806.01(1) Arson None Arson 806.01(2) Attempt Criminal mischief — 806.13(1)(b)1 Criminal mischief — 806.13(1)(b)2. Criminal mischief — 806.13(1)(b)3. Criminal mischief — 806.13(2) ____________________________________________________________________________ 806.111 Arson — Fire bomb None Attempt ____________________________________________________________________________ 806.13 (1)(b)1 Criminal mischief None Attempt ____________________________________________________________________________ 806.13(1)(b)2 Criminal mischief Criminal mischief — 806.13(1)(b)1 Attempt ____________________________________________________________________________ 806.13(1)(b)3 Criminal mischief Criminal mischief — 806.13(1)(b)1 Criminal mischief — 806.13(1)(b)2 Attempt ____________________________________________________________________________ 810.02(2) Burglary with assault or battery or while armed Burglary — 810.02(4) Aggravated battery — 784.045
Battery — 784.03 Aggravated assault — 784.021 Assault — 784.011 Attempt Burglary — 810.02(3) Trespass — 810.08(2)(a) Trespass — 810.08(2)(c) ____________________________________________________________________________ 810.02(3) Burglary of dwelling; Burglary of structure or conveyance with human being inside Burglary — 810.02(4) Attempt Burglary — 810.02(3) Trespass — 810.08(2)(a) Trespass — 810.08(2)(b) ____________________________________________________________________________ 810.02(4) Burglary None Attempt Trespass — 810.08(2)(a) ____________________________________________________________________________ 810.06 Possession of burglary tools None None ____________________________________________________________________________ 810.08 Trespass in structure or conveyance None Attempt (except refuse to depart) ____________________________________________________________________________ 810.09 Trespass on property other than structure or conveyance None Attempt ____________________________________________________________________________ 812.014(2)(a) Grand theft — first degree (property valued at $100,000 or more) Grand theft — second degree — 812.014(2)(b) Grand theft — third degree — 812.014(2)(c) (1), (2), (3) Petit theft — first degree 812.014(2)(e) Petit theft — second degree — 812.014(3)(a) Trade secrets — 812.081 ____________________________________________________________________________ 812.014(2)(b) Grand theft — second degree (property valued at $20,000 or more but less than $100,000) Grand theft — third degree — 812.014(2)(c) (1), (2), (3) Petit theft — first degree 812.014(2)(e) Petit theft — second degree 812.014(3)(a) Trade secrets — 812.081 ____________________________________________________________________________ 812.014(2)(c) Grand theft — third degree Petit theft — first degree — 812.014(2)(e) Petit theft — second degree 812.014(3)(a) Trade secrets — 812.081 Trespass to conveyance — 812.014(2)(c)(6)
____________________________________________________________________________ 812.014(2)(d) Grand theft — third degree None Petit theft — second degree — 812.014(3)(a) ____________________________________________________________________________ 812.014(2) (e) Petit theft — first degree None Petit theft — second degree — 812.014(3)(a) ____________________________________________________________________________ 812.014 (3)(b) Petit theft None None ____________________________________________________________________________ 812.014(3) (a) Petit theft — second degree None None ____________________________________________________________________________ 812.014(3)(c) Felony Petit theft None Petit theft — first degree — 812.014(2)(e) Petit theft — 812.014(3)(b) Petit theft — second degree — 812.014(3)(a) ____________________________________________________________________________ 812.016 Possession of altered property None Attempt ____________________________________________________________________________ 812.019(1) Dealing in stolen property — trafficking None Grand theft — third degree — 812.014(2)(c) Petit theft — 812.014(2)(e) Petit theft — 812.014(3)(a) ____________________________________________________________________________ 812.019(2) Dealing in stolen property — managing and trafficking Dealing in stolen property — 812.019(1) None ____________________________________________________________________________ 812.13(2)(a) Robbery with a firearm or deadly weapon Robbery with a weapon — 812.13(2)(b) Robbery — 812.13(2)(c) Petit theft — 812.014(3)(a) Attempt Grand theft 1st degree — 812.014(2)(a) Grand theft 2d degree — 812.014(2)(b) Grand theft 3d degree — 812.014(2)(c) Petit theft — 812.014(2)(e) Battery — 784.03 Aggravated battery — 784.045 Assault — 784.011 Aggravated assault — 784.021 Display of firearm — 790.07 Resisting a Merchant — 812.015(6) ____________________________________________________________________________ 812.13(2)(b) Robbery with a weapon Robbery — 812.13(2)(c) Petit theft — 812.014(3)(a) Attempt Grand theft 1st degree — 812.014(2)(a) Grand theft 2d degree — 812.014(2)(b) Grand theft 3d degree — 812.014(2)(c) Petit theft — 812.014(2)(e) Battery — 784.03 Aggravated battery — 784.045 Assault — 784.011
Display of weapon — 790.07(1) Resisting a merchant — 812.015(6) ____________________________________________________________________________ 812.13(2)(c) 812.013 (2)(b) Robbery Petit theft — 812.014(3)(a) Attempt Grand theft 1st degree — 812.014(2)(a) Grand theft 2d degree — 812.014(2)(b) Grand theft 3d degree — 812.014(2)(c) Petit theft — 812.014(2)(e) Battery — 784.03 Assault — 784.011 Aggravated assault — 784.021 Resisting a merchant — 812.015(6) ____________________________________________________________________________ 812.135 Home invasion robbery Robbery — 812.13(2)(c) Petit theft — 812.014(3)(a) Petit theft — 812.014(2)(e) ____________________________________________________________________________ 817.233 Burning to defraud insurer None None ____________________________________________________________________________ 817.563 Sale of substance in place of a controlled substance None Attempt ____________________________________________________________________________ 826.04 Incest None Attempt ____________________________________________________________________________ 827.03(1)(a) Aggravated child abuse None Attempt Child abuse — 827.04(1) Battery — 784.03 only under certain circumstances
see Kama v. State,
507 So.2d 154 (Fla. 1st DCA 1987) ____________________________________________________________________________ 827.03(1)(b) 827.03(1)(c) 827.03(1)(d) Aggravated child abuse None Attempt Child abuse — 827.04(1) Battery — 784.03; only under certain circumstances
see Kama v. State,
507 So.2d 154 (Fla. 1st DCA 1987) ____________________________________________________________________________ 827.04(3) Contributing to child delinquency or dependency or to child in need of services None Attempt ____________________________________________________________________________ 827.071(2) Sexual performance by a child None Attempt Sexual performance by a child — 827.071(5) ____________________________________________________________________________ 827.071(3) Sexual performance by a child None Attempt Sexual performance by a child — 827.071(5) ____________________________________________________________________________ 827.071(4) Sexual performance by a child Sexual performance by a child — 827.071(5) Attempt ____________________________________________________________________________ 827.071(5) Sexual performance by a child None Attempt
____________________________________________________________________________ 831.01 Forgery None Attempt ____________________________________________________________________________ 831.02 Uttering forged instrument None None ____________________________________________________________________________ 832.04 Stopping payment; purchase of farm or grove products None Attempt, except when uttering is charged — 832.04 under $150 ____________________________________________________________________________ 832.041 Stopping payment with intent to defraud None Attempt, except when uttering is charged 832.04 if farm or grove product 832.041 under $150 Worthless check — 832.05(2) (first degree misdemeanor) ____________________________________________________________________________ 832.05(2) Worthless checks None Attempt, except when uttering is charged 832.05(2) under $150 ____________________________________________________________________________ 832.05(4) Obtaining property by worthless checks Worthless check — 832.05(2) Attempt ____________________________________________________________________________ 837.012 Perjury not in official proceeding None None ____________________________________________________________________________ 837.02 Perjury in official proceeding None None ____________________________________________________________________________ 837.021 Perjury by contradictory statements None None ____________________________________________________________________________ 837.05 False reports to law enforcement authorities None None ____________________________________________________________________________ 837.06 False official statements None None ____________________________________________________________________________ 838.015(1) Bribery of public servant None Attempt if only "give" is charged ____________________________________________________________________________ 838.015 Bribery None Attempt if only "accept" is charged ____________________________________________________________________________ 838.016(1) Bribery by a public servant None Attempt if only "give" or "accept" is charged ____________________________________________________________________________ 838.016 Unlawful compensation for official behavior None Attempt if only "give" or "accept" is charged ____________________________________________________________________________ 838.021 Corruption by threat against public servant None Attempt if only harm is charged ____________________________________________________________________________ 838.12(1) Bribery in athletic contests None Attempt if only give is charged ____________________________________________________________________________ 838.12(2) Bribery in athletic contests None Attempt if only accept is charged ____________________________________________________________________________ 843.01 Resisting officer with violence None Resisting officer without violence — 843.02 ____________________________________________________________________________ 843.02 Resisting officer without violence None Attempt ____________________________________________________________________________ 849.01 Keeping gambling house None Lottery — 849.09(1)(f) Lottery — 849.09(1)(k)
Lottery — 849.11 ____________________________________________________________________________ 849.01 (849.02) Maintaining a gambling establishment None Lottery — 849.09(1)(f) Lottery — 849.09(1)(k) Lottery — 894.11 ____________________________________________________________________________ 849.01 (849.02) Permitting gambling None Lottery — 849.09(1)(f) Lottery — 849.09(1)(k) Lottery — 849.11 ____________________________________________________________________________ 849.02 Agents, servants, etc., of keeper of gambling house None Lottery — 849.09(1)(f) Lottery — 849.09(1)(k) ____________________________________________________________________________ 849.02 Renting house for gambling purposes None None ____________________________________________________________________________ 849.03 Renting space for gambling None None ____________________________________________________________________________ 849.04 Permitting minors and persons under guardianship to gamble None Permitting gambling on billiard or pool table by holder of license — 849.07 Playing at games of chance by lot — 849.11 ____________________________________________________________________________ 849.08 Gambling None None ____________________________________________________________________________ 849.09(1)(a) Lottery None Lottery — 849.09(1)(f) Lottery — 849.09(1)(g) Lottery — 849.09(1)(h) Lottery — 849.09(1)(i) Lottery — 849.09(1)(j) Lottery — 849.09(1)(k) Playing at game of chance by lot — 849.11 Gambling devices, etc. — 849.231 ____________________________________________________________________________ 849.09(1)(b) Lottery None Lottery — 849.09(1)(f) Lottery — 849.09(1)(g) Lottery — 849.09(1)(h) Lottery — 849.09(1)(i) Lottery — 849.09(1)(j) Lottery — 849.09(1)(k) Gambling devices, etc. — 849.231 ____________________________________________________________________________ 849.09(1)(c) Lottery None Lottery — 849.09(1)(f) Lottery — 849.09(1)(g) Lottery — 849.09(1)(h) Lottery — 849.09(1)(i) Lottery — 849.09(1)(j) Lottery — 849.09(1)(k) Gambling devices, etc. — 849.231 ____________________________________________________________________________ 849.09(1)(d) Lottery None Lottery — 849.09(1)(f) Lottery — 849.09(1)(g) Lottery — 849.09(1)(h) Lottery — 849.09(1)(i) Lottery — 849.09(1)(j) Lottery — 849.09(1)(k)
Playing at games of chance by lot — 849.11 Gambling devices, etc. — 849.231 ____________________________________________________________________________ 849.09(1)(g) Lottery None None ____________________________________________________________________________ 849.09(1)(h) Lottery None None ____________________________________________________________________________ 849.09(1)(k) Lottery None None ____________________________________________________________________________ 849.14 Betting None None ____________________________________________________________________________ 849.25 (1) and (2) Bookmaking None Attempt ____________________________________________________________________________ 893.13(1)(a) Sale, manufacture, delivery or possession with intent to sell, manufacture or deliver controlled substance None Attempt, except when delivery is charged 893.13(3) if delivery of cannabis is charged; 893.13(6)(b) if possession of cannabis is charged; 893.13(6)(a) — if possession is charged and offense would be a second degree felony under 893.13(1)(a)1. ____________________________________________________________________________ 893.13(1)(b) Sale or delivery or possession of more than 10 grams of controlled substance Sale or delivery of controlled substance — 893.13(1)(a) Attempt, except when delivery is charged 893.13(6)(a) if possession is charged ____________________________________________________________________________ 893.13(1)(c) Sale, manufacture, delivery, etc. near public or private elementary, middle or secondary school Sale, manufacture, delivery, etc. — 893.13(1)(a) Attempt, except when delivery is charged; 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(1)(a) 893.13(6)(b) if possession of cannabis is charged 893.13(3) if delivery of cannabis is charged ____________________________________________________________________________ 893.13(1)(d) Sale, manufacture, delivery, etc. near a college, university, other post-secondary educational institution or public park Sale, manufacture, delivery, etc. — 893.13(1)(a) Attempt, except when delivery is charged 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(1)(a)1; 893.13(6)(b) if possession of cannabis is charged; 893.13(3) if delivery of cannabis is charged. ____________________________________________________________________________ 893.13(2)(a) Purchase or possession with intent to purchase controlled substance None Attempt; 893.13(6)(a) if possession is charged and the offense would be a second degree felony under 893.13(2)(a)1 893.13(6)(b) if possession of cannabis is charged ____________________________________________________________________________ 893.13(2)(b) Purchase in excess of 10 grams
of a controlled substance 893.13(2)(a) purchase of less than 10 grams Attempt ____________________________________________________________________________ 893.13(3) Delivery without consideration not more than 20 grams of cannabis None None ____________________________________________________________________________ 893.13(4) Delivery of controlled substance to person under 18 years old, etc. None 893.13(1)(a); 893.13(3) if delivery of cannabis is charged. ____________________________________________________________________________ 893.13(5) Bringing controlled substance into state None Attempt 893.13(6)(a); 893.14(3) if delivery of cannabis charged; 893.13(6)(b) if possession of cannabis charged. ____________________________________________________________________________ 893.13(6)(a) Possession of controlled substance None Attempt; 893.13(3) if delivery of cannabis charged; 893.13(6)(b) if possession of cannabis charged. ____________________________________________________________________________ 893.13(6)(b) Possession of not more than 20 grams of cannabis None Attempt ____________________________________________________________________________ 893.13(6)(c) Possession in excess of 10 grams of controlled substance Possession of less than 10 grams 893.13(6)(a) Attempt 893.13(6)(b) if possession of cannabis charged. ____________________________________________________________________________ 893.13(7)(a) 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 Distribute or dispense a controlled substance, etc. None Attempt ____________________________________________________________________________ 893.13(7)(a)9 Obtaining controlled substances by fraud None None ____________________________________________________________________________ 893.135 (1)(a) Trafficking in cannabis Trafficking offenses requiring lower quantities of cannabis — 893.135(1)(a)1 and 2 Attempt, (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged 893.13(2)(a) — if purchase is charged Bringing cannabis into state — 893.13(5) Possession of cannabis — 893.13(6)(a) — 893.13(6)(b) if less than 20 grams of cannabis Delivery of less than 20 grams of cannabis — 893.13(3) ____________________________________________________________________________ 893.135(1)(b) 1 2 Trafficking in cocaine Trafficking offenses requiring lower quantities of cocaine 893.135(1)(b)1 Attempt (but not conspiracy), except when delivery is charged;
893.13(1)(a) if sale, manufacture or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing cocaine into state 893.13(5); Possession of cocaine 893.13(6)(a). ____________________________________________________________________________ 893.135(1)(c) 1 2 Trafficking in illegal drugs Trafficking offenses requiring lower quantities of illegal drugs — 893.135(1)(c) 1 Attempt (but not conspiracy), except when delivery is charged; 893.13(1)(a) if sale, manufacture or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing same illegal drug as charged into state — 893.13(5) Possession of same illegal drug — 893.13(6)(a). ____________________________________________________________________________ 893.135 (1)(d)1 Trafficking in phencyclidine Trafficking offenses requiring lower quantities of phencyclidine — 893.135(1)(d)1.a and b. Attempt (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged 893.13(2)(a) — if purchase is charged Bringing phencyclidine into state — 893.13(5); Possession of phencyclidine — 893.13(6)(a) ____________________________________________________________________________ 893.135 (1)(e)1 Trafficking in methaqualone Trafficking offenses requiring lower quantities of methaqualone — 893.135(1)(e)1.a and b. Attempt (but not conspiracy), except when delivery is charged 893.13(1)(a) if sale, manufacture or delivery is charged; 893.13(2)(a) — if purchase is charged Bringing methaqualone into state — 893.13(5) Possession of methaqualone — 893.13(6)(a) ____________________________________________________________________________ 893.135(1)(f)1 Trafficking in amphetamine Trafficking offenses requiring lower quantities of amphetamine — 893.135(1)(f)1 ab Attempt (but not conspiracy), except when delivery is charged 893.13(1)(a) — if sale, manufacture or delivery is charged; 893.13(2)(a) — if purchase is charged; Bringing amphetamine into state — 893.13(5); Possession of amphetamine — 893.13(6)(a)
____________________________________________________________________________ 893.147(1) Possession of drug paraphernalia None Attempt ____________________________________________________________________________ 893.147(2) Delivery, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia None Attempt, except when delivery is charged. ____________________________________________________________________________ 893.147(3) Delivery of drug paraphernalia to a minor None None ____________________________________________________________________________ 893.147(4) Advertisement of drug paraphernalia None None ____________________________________________________________________________ 893.149 Unlawful possession, etc., of listed chemical None Attempt ____________________________________________________________________________ 895.03(1) RICO — Use or investment of proceeds from pattern of racketeering activity None None ____________________________________________________________________________ 895.03(1) RICO — Use or investment of proceeds from collection of unlawful debt None None ____________________________________________________________________________ 895.03(2) RICO — Acquisition or maintenance through pattern of racketeering activity None None ____________________________________________________________________________ 895.03(2) RICO — Acquisition or maintenance through collection of unlawful debt None None ____________________________________________________________________________ 895.03(3) RICO — Conduct or participation in an enterprise through collection of unlawful debt None None ____________________________________________________________________________ 895.03(3) RICO — Conduct or participation in an enterprise through a pattern of racketeering activity None None ____________________________________________________________________________ 895.03(4) Conspiracy to engage in pattern of racketeering activity None None ____________________________________________________________________________ 944.40 Escape None None
____________________________________________________________________________ 944.47 Contraband in state correctional institution None Possession of less than 20 grams cannabis — 893.13(6)(b) ____________________________________________________________________________ 951.22 Contraband in county detention facilities None Possession of less than 20 grams cannabis — 893.13(6)(b) ____________________________________________________________________________
DURESS OR NECESSITY An issue in this case is whether fn (defendant)
acted out of [duress] [necessity] in committing the crime of fn (crime charged) (lesser included offenses).
It is a defense to the fn (crime charged) (lesser included offenses)
if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the]
fn (crime charged) (lesser included offense)
out of [duress][necessity], you must find the following six elements:]
fn 1. the defendant reasonably believed [a danger][an emergency] existed which was not intentionally caused by [himself] [herself]. fn 2(a). the [danger][emergency] threatened significant harm to [himself] [herself][a third person]. (or) ]
fn Give 2(b) if 2(b). the [danger][emergency] threatened escape charged death or serious bodily injury. ]
fn 3. The threatened harm must have been real, imminent and impending. fn Give 4(a) 4(a). the defendant had no reasonable if escape means to avoid the [danger] not charged [emergency] except by committing the fn (crime charged) (lesser included offenses). fn Note to If escape is charged, the court must first Judge determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984) and Alcantaro v. State, 407 So.2d 922 (Fla. 1st DCA 1981) and if so, give 4b. 4(b). the defendant left [the place of [his][her] confinement][the vehicle in which [he][she] was being transported] [to][from][his][her] work on a public road] [
because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority. ]
fn 5. [
the ]
fn (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger][emergency]. ]
fn 6. The harm that the defendant avoided must outweigh the harm caused by committing the ]
fn (crime charged) (lesser included offenses). Definitions "Imminent and impending" means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress][necessity] if [he][she] committed the crime after the danger from the threatened harm had passed. fn The reasonableness of the defendant's belief that [a danger][an emergency] existed should be examined in the light of all the evidence. fn In deciding whether it was necessary for the defendant to commit the fn (crime charged) (lesser included offenses)
, you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed. fn The [danger][emergency] facing the defendant need not have been actual; however to justify the commission of the fn (crime charged) (lesser included offenses) , the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only by committing the fn (crime charged) (lesser included offenses)[
. Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real. fn If you find from the evidence that the defendant committed the fn (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty. fn However if you find that the defendant did not commit the fn (crime charged) (lesser included offenses) out of [duress] [necessity] you should find the defendant guilty if all the elements of the charge have been proved. fn Note to Judge Duress is not a defense to an intentional homicide. See Wright v. State, 402 So.2d 493 (Fla. 3d DCA 1981). PENALTY PROCEEDINGS-CAPITAL CASES After the first paragraph on page 114 of the manual, the following additional language is proposed:
Note to Judge Give before a new penalty phase jury [ A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to disregard an aggravating circumstance if you have an abiding conviction that it exists. On the other hand, if, after carefully considering, comparing and weighing all the evidence, you do not have an abiding conviction that the aggravating circumstance exists, or if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the aggravating circumstance has not been proved beyond a reasonable doubt and you should disregard it, because the doubt is reasonable. ]
fn It is to the evidence introduced in this proceeding, and to it alone, that you are to look for that proof. ]
fn A reasonable doubt as to the existence of an aggravating circumstance may arise from the evidence, conflicts in the evidence or the lack of evidence. ]
fn If you have a reasonable doubt as to the existence of an aggravating circumstance, you should find that it does not exist. However, if you have no reasonable doubt, you should find that the aggravating circumstance does exist and give it whatever weight you feel it should receive.] ]
fn 3.04(c)(2) ENTRAPMENT Note to
This instruction is to be used for Judge offenses occurring on or after October 1, 1987. The defense of entrapment has been raised. (Defendant)
was entrapped if 1. [ fn he ][she] ]
fn was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of (crime charged)
, and 2. [ fn he ][she] ]
fn engaged in such conduct as the direct result of such inducement or encouragement, and 3. the person who induced or encouraged [ ]
fn him[
] [her] ]
fn was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and 4. the person who induced or encouraged [ ]
fn him ] [her] ]
fn employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and 5. (defendant)
was not a person who was ready to commit the crime. When claim It is not entrapment if of entrapment no (defendant)
had the defense predisposition to commit the (crime charged)
. (Defendant)
had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant)
, [ ]
fn he[
] [she] ]
fn had a readiness or willingness to commit (crime charged)
if the opportunity presented itself. [
When claim]
fn It is also not entrapment merely [
of entrapment]
fn because a law enforcement officer in a [
no defense]
fn good faith attempt to detect crime Give a, b, or
(a) [provided the defendant the c as applicable opportunity, means and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.] (b) [used tricks, decoys or subterfuge to expose the defendant's criminal acts.] (c) [was present and pretending to aid or assist in the commission of the offense.] On the issue of entrapment, the defendant must prove to you by [
a preponderance ]
fn the greater weight fn of the evidence that [
his criminal conduct occurred as the result of entrapment. ]
fn a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the ]
fn (crime charged)[
. The state must prove defendant's predisposition to commit the ]
fn (crime charged) [
existed prior to and independent of the inducement or encouragement. ]
fn Give if An informant is an agent of law applicable enforcement for purposes of the entrapment defense. fn If you find that the defendant was entrapped, you should find the defendant not guilty of ]
fn (crime charged). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved. ]
fn Note to This instruction should be given Judge only if there is some evidence of the defendant's lack of predisposition to commit the crime. See Munoz v. State, 629 So.2d 90 (Fla. 1993). FALSE IMPRISONMENT F.S. 787.02 Before you can find the defendant guilty of False Imprisonment, the State must prove the following [
three ]
fn two ]
fn elements beyond a reasonable doubt: Elements
1. (Defendant)
[forcibly] [secretly] [by threat] [confined] [abducted] [imprisoned] [restrained] (victim)
against [his] [her] will. 2. (Defendant)
had no lawful authority.[
Give (a), (b), (c) or (d) as applicable]
fn 3. ]
fn (Defendant) fn acted for any purpose other than to: fn a. hold for ransom or reward or as a shield or hostage. ]
fn b. commit or facilitate commission of any felony. ]
fn c. inflict bodily harm upon or to terrorize the victim or another person. ]
fn d. interfere with the performance of any governmental or political function. ]
fn Read only if
Confinement of a child under the confinement is age of thirteen ( ]
fn alleged and child is
13[
) ]
fn under [
13]
fn is against [
[ ]
fn his[
] [her] ]
fn will if such [
thirteen]
fn [
confinement is without the consent of] [
[ ]
fn years of age.
his[
] [her] ]
fn parent or legal guardian. FELONY DUI — PRIOR CONVICTIONS F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements
1. (Defendant)
drove or was in actual physical control of a vehicle. 2. While driving or in actual physical ]
fn control of the vehicle, (defendant) Give 2a
a. [was under the influence of [
and/]
fn [
alcoholic beverages]
[a or 2b as
chemical substance] [a controlled substance] to applicable
the extent that [his][her] normal faculties were impaired.] [
or ]
fn b. [had a blood or breath ]
fn alcohol level of 0.10 fn 0.08 fn percent fn or higher.] Definitions;
"Vehicle" is any device in, upon, give as applicable or by which any person or property is or F.S. 316.003 may be transported or drawn upon (75) a highway, except devices used exclusively upon stationary rails or tracks. "Normal faculties" mean those faculties of a person, such as fn include but are not limited to fn the ability to see, hear, walk, talk, [
judge distances, drive an automobile, ]
fn make judgments, [
act in emergencies ]
fn and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time. ]
fn "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. ]
fn F.S.
( ) is a chemical substance under 877.111 (1) Florida law. Ch. 893,
( ) is a controlled substance under F.S. Florida law. Note to
In appropriate cases, an instruction Judge may be given on one or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a) fn 1. ]
fn If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent fn or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [ ]
fn his[
] fn or [ fn her[
] fn normal faculties were impaired. (2)(b) fn 2. fn If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent fn but less than 0.08 percent fn , you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [ fn his ] fn or fn [ fn her ] fn normal faculties were impaired; or , fn (2)(c) fn 3. fn If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent fn or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [ fn his ] fn or fn [ fn her ] fn normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that
[ fn his ] fn or [ fn her ] fn normal faculties were impaired. Defense of inoperability;]
fn give if applicable]
fn It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable. fn However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. fn Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. fn However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. ]
fn FELONY DUI — SERIOUS BODILY INJURY F.S. 316.193(3)(c)(2) Before you can find the defendant guilty of DUI with fn Causing fn Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt: Elements
1. (Defendant)
drove or was in actual physical control of a vehicle. 2. While driving or while fn in actual physical fn control of the vehicle, (defendant) Give 2a or 2b as applicable
a. [was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his][her] normal faculties were impaired.] or fn b. [had a blood or breath fn alcohol level of [
0.10 ]
fn 0.08 fn[
percent ]
fn or higher.] 3. As a result (defendant) caused serious bodily injury to (victim). Definitions; give as applicable F.S. 316.003 (75)
"Vehicle" is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. "Normal faculties" [
mean those faculties of a person, such as ]
fn include but are not limited to fn the ability to see, hear, walk, talk, judge distances, drive an automobile, fn make judgments, act in emergencies fn and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time. fn "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. ]
fn F.S. 877.111 (1) Ch. 893, F.S.
( ) is a chemical substance under Florida law. ( ) is a controlled substance under Florida law. F.S. 316.1933
"Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to Judge
In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a) ]
fn 1. fn If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent fn or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [ fn his[
] ]
fn or fn [ fn her ] fn normal faculties were impaired. (2)(b) fn 2. fn If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 [
percent ]
fn but less than 0.08 [
percent ]
fn , you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [ fn his ] fn or fn [ fn her[
] ]
fn normal faculties were impaired; or[
, ]
fn (2)(c) fn 3. fn If you find from the evidence that the defendant had a blood or breath a lcohol level of 0.08 [
percent ]
fn or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [ fn his ] fn or fn [ fn her ] fn normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [ fn his ] fn or fn [ fn her ] fn normal faculties were impaired. Defense of inoperability;]
fn give if applicable]
fn It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable. ]
fn However, it is not a defense if, while impaired, the defedant drove or was in actual physical control of the vehicle before it became inoperable. ]
fn Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. ]
fn However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. ]
fn DUI MANSLAUGHTER F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements
1. (Defendant)
operated fn drove or was in actual physical control of fn a vehicle. See Magaw v. State, 537 So.2d 564 (Fla. 1989) fn 2. (Defendant) fn , by reason of such operation, caused or contributed to the cause of the death of fn (victim) fn . fn While driving or while in actual physical control of the vehicle, fn (defendant) Give 2(a) or 2(b) as applicable fn a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his][her] normal faculties were impaired. or ]
fn b. had a blood or breath alcohol level of 0.08 or higher. ]
fn Give 3a and or 3b as applicable]
fn 3. At the time of such operation fn (defendant)]
fn a. [was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his][her] normal faculties were impaired.] ]
fn b. [had a blood or breath alcohol level of 0.10 percent or higher.] ]
fn See fn Magaw v. State, fn 537 So.2d 564 (Fla. 1989) fn As a result, fn (defendant)]
fn caused or contributed to the cause of the death of fn (victim)]
fn[
. ] Definitions; give as applicable 316.003 (75)
"Vehicle" is any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.F.S.
"Normal faculties" [
mean those faculties of a person, such as ]
fn [
include but are not limited to ]
fn the ability to see, hear, walk, talk, [
judge distances, drive an automobile, ]
fn make judgments, [
act in emergencies ]
fn and, in general, to normally perform the many mental and physical acts of our daily lives. [
"Actual physical control of a vehicle"means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time. ]
fn [
"Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. ]
fn F.S. 877.111 (1) Ch. 893, F.S. ( )
is a chemical substance under Florida law. ( )
is a controlled substance under Florida law. Note to Judge
In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: [
(2)(a) ]
fn[
1. ]
fn If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 [
percent ]
fn or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [
[ ]
fn his[
] ]
fn or ]
fn [
[ ]
fn her[
] ]
fn normal faculties were impaired. (2)(b) ]
fn[
2. ]
fn If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 [
percent ]
fn but less than 0.08 [
percent ]
fn , you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [
[ ]
fn his[
] ]
fn [
or ]
fn [ ]
fn her[
] ]
fn normal faculties were impaired; or[
, ]
fn (2)(c) ]
fn[
3. ]
fn If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent ]
fn or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [
[ ]
fn his[
] ]
fn [
or ]
fn[
[ ]
fn her[
] ]
fn normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [
[ ]
fn his[
] ]
fn [
or ]
fn [
[ ]
fn her[
] ]
fn normal faculties were impaired. Defense of inoperability; fn give if applicable fn It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable. fn However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. fn Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. fn However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. fn UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS ]
fn F.S. 794.05 [NEW] fn Before you can find the defendant guilty of sexual activity with a minor, the State must prove the following three elements beyond a reasonable doubt: fn Elements fn 1. fn (Victim) fn was 16 or 17 years of age. fn 2. fn (Defendant) fn [
was age 24 or older. ]
fn 3. [ fn (Defendant) fn [
engaged in sexual activity with a minor in which the sexual organ of the ]
fn (defendant) fn[
] fn [
(victim)]
fn[
] penetrated or had union with the [anus] [vagina] [mouth] of the fn (victim fn )] fn [
(defendant)]
fn[
]. ]
fn Give if applicable]
fn Sexual activity does not include an act done for a bona fide medical purpose. fn