PER CURIAM.
Original Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.
Judge Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
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 approve both new and amended standard instructions. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.
On July 1, 2011, the Committee filed a report proposing amendments to the following five existing criminal instructions: 3.6(k)—Duress or Necessity; 3.9—Weighing the Evidence; 3.10—Rules for Deliberation; 6.4—Attempted Second Degree Murder; and 28.5(a)—Racing on a Highway; proposing the following four new criminal jury instructions: 8.21—Assault or Aggravated Assault, or Battery or Aggravated Battery, by a Detainee Upon Another Detainee or Upon a Visitor; 10.15(a)—Possession of a Firearm By a Person Under 24 Found Delinquent of Offense Which Would be a Felony if Committed by an Adult; 11.17—Unlawful Residency of a Sex Offender; and 15.4—Resisting Recovery of Merchandise; and finally, proposing amendments to the criminal instructions for special proceedings, i.e., the involuntary civil commitment of sexually violent predators. Those proposals included two revised (1.01, Preliminary Instruction; and 2.08, Verdict and Submitting Case to Jury) and two new (Qualifications Instruction; and 1.001, Introduction) proposed instructions. The Committee's proposals derived from recommendations by Committee members based upon changes in statutory and decisional law, and where no instruction existed for a particular criminal offense.
Except for those noted below, the Committee's proposals are authorized for publication and use.
Proposed jury instruction 6.4, Attempted Second Degree Murder, raises the issue whether Attempted Voluntary Manslaughter is an offense by adding that crime to the table of Lesser Included Offenses to Attempted Second Degree Murder. The issue whether attempted voluntary manslaughter is an offense is presently under consideration in In re Standard Jury Instructions in Criminal Cases—Instruction 6.4 and Instruction 6.6, No. SC12–462 (Fla. petition filed Mar. 19, 2012). On March 19, 2012, the Court severed proposed instruction 6.4 from the instant case for consideration with proposed instruction 6.6 in Case No. SC12–462.
Proposed jury instruction 8.21 arose because there did not exist an instruction for the offense defined under section 784.082, Florida Statutes (2011)—“Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses.” In Hopkins v. State, No. SC10–2483 (Fla. order accepting jurisdiction filed June 1, 2011), the Court is considering whether that statute applies to juveniles held in juvenile facilities. For that reason, we sever proposed jury instruction 8.21 from the instant case for consideration under a new case number following the Court's disposition in Hopkins.
Lastly, the Court rejects the Committee's proposed new standard jury instruction 15.4, Resisting Recovery of Merchandise. The Committee sought to track the statutory language of section 812.015(6), Florida Statutes (2011), which provides as follows:
(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent. For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.
(Emphasis added.) However, the Committee notes that neither the statute nor the case law is clear on whether knowledge or lack thereof is an element or an affirmative defense. Therefore, because the Court does not decide substantive issues in jury instruction cases, but rather allows the law to develop in actual cases and controversies, proposed instruction 15.4 is not authorized.
The new and revised instructions, as set forth in the appendix to this opinion, are authorized for publication and use. 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 the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and 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 shall be effective when this opinion becomes final.
The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www. florida supreme court. 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.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
APPENDIX
3.6(k) DURESS OR NECESSITY
An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).
It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:
1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].
2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].
Give 2b if escape charged.
b. The [danger] [emergency] threatened death or serious bodily injury.
3. The threatened harm must have been real, imminent, and impending.
Give 4a if escape is not charged.
4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).
If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and State v. Alcantaro, 407 So.2d 922 (Fla. 1st DCA 1981), and if so, give 4b.
b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].
6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).
Definitions.
“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.
The reasonableness of the defendant's belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.
In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.
The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.
If you have a reasonable doubt find from the evidence that as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.
However, if you are convinced beyond a reasonable doubt find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.
Comment
Duress is not a defense an intentional homicide to premeditated murder or attempted premeditated murder . See Wright v. State, 402 So.2d 493 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin's opinion in Chestnut v. State, 505 So.2d 1352 (Fla. 1st DCA 1987), and the language in Gahley v. State, 567 So.2d 456 (Fla. 1st DCA 1990), Corujo v. State, 424 So.2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So.2d 609 (Fla. 5th DCA 2000).
This instruction was adopted in July 1998 and amended in 2012 .
3.9 WEIGHING THE EVIDENCE
It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence, and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.
You should consider how the witnesses acted, as well as what they said. Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the attorneys' questions?
4. Did the witness have some interest in how the case should be decided?
5. Does the witness's testimony agree with the other testimony and other evidence in the case?
The instructions covered under paragraphs numbered 6 through 10, inclusive, are not common to all cases. These numbered paragraphs should be included only as required by the evidence.
Give as applicable.
6. Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that affected the truth of the witness's testimony?
8. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?
9. Has Was it proved that the witness been convicted of a crime [felony] [misdemeanor involving [dishonesty] [false statement]] ?
10. Does the witness have a general reputation for [dishonesty] [truthfulness]? Was it proved that the general reputation of the witness for telling the truth and being honest was bad?
It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony.
You may rely upon your own conclusion about the witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.
Comment
The court also may wish to give as part of this instruction the instructions covered under 3.9(a) and (b), concerning expert witnesses and accomplices. If so, the Committee recommends that they be given as additional numbered paragraphs, which would precede the last two unnumbered paragraphs of this instruction.
This instruction was adopted in 1981 and amended in 2012 .
3.10 RULES FOR DELIBERATION
These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:
1. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
2. This case must be decided only upon the evidence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instructions.
3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.
When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5.
5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge's job to determine a proper sentence if the defendant is found guilty.
6. Whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.
Give 7 if applicable.
It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony.
Give 7 if applicable.
7. The jury is not to discuss any question[s] that [a juror] [jurors] wrote that was [were] not asked by the court, and must not hold that against either party.
8. Your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.
Comment
This instruction was adopted in 1981 and was amended in 1995 and September 2005 and 2012 .
10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT
§ 790.23(1)(b) or (d), Fla. Stat.
To prove the crime of (crime charged), the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) had been found by [a court of this state] [a court of another [state] [territory] [country]] to have committed a delinquent act that would be a felony if committed by an adult [and which was punishable by imprisonment for a term exceeding 1 year].
Give 2a or 2b as applicable.
2. After being found to have committed that delinquent act, (defendant)
a. [owned] [had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition].
b. [carried a concealed weapon.]
3. (Defendant) was under 24 years of age at the time [he] [she] [[owned] [possessed] [the firearm] [the electric weapon or device] [the ammunition]] [carried the concealed weapon].
Note to Judge: “Found” refers to a finding of fact by a court of competent jurisdiction and does not require an adjudication of guilt. State v. Menuto, 912 So.2d 603 (Fla. 2d DCA 2005).
Definitions.
§ 985.03(8), Fla. Stat.
“Delinquent act” is a violation of law found by a court to have been committed by any married or unmarried child under 18 years of age.
Give as appropriate.
§ 790.001(6), Fla. Stat.
A “firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.) ].
§ 790.001(19), Fla. Stat.
“Ammunition” means an object consisting of all of the following:
a. A fixed metallic or nonmetal hull or casing containing a primer.
b. One or more projectiles, one or more bullets, or shot.
c. Gunpowder.
§ 790.001(14), Fla. Stat.
An “electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.
§ 790.001(3), Fla. Stat.
A “concealed weapon” is legally defined as any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.
Ensor v. State, 403 So.2d 349 (Fla.1981).
The term “on or about a person” means physically on the person or readily accessible to [him] [her].
The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Absolute invisibility is not a necessary element to a finding of concealment.
Give if appropriate.
Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).
A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object can also be a deadly weapon because of the way it is used or intended to be used or threatened to be used.
Give if 2a alleged.
“Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.
Possession.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means
a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.
Give if applicable.
Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control.
Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.
In order to establish constructive possession of an object if the object is in a place over which the defendant does not have control, the State must prove the defendant's (1) control over the object and (2) knowledge that the object was within the defendant's presence.
Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.
If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.
A special instruction may be given if the premises are jointly occupied and the object is located in a common area, in plain view, and in the presence of the owner or occupant. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).
If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.
Lesser Included Offenses
+------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------+ ¦ CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/
AMMUNITION/ELECTRIC WEAPON OR DEVICE BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT—790.23(1)(b) or (d) Fla. Stat. ¦ ¦ ¦ +------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------+
It is not a crime for (defendant) to have lived within 1,000 feet of a [school] [child care facility] [park] [playground], if you find that (defendant) resided there Based upon § 394.917, Fla. Stat.; Florida Standard Jury Instruction (Criminal) 2.09, Submitting Case to Jury. This instruction was adopted in 2000 and amended in 2012.