text:
    Jesse GUARDADO, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1903
    Supreme Court of Florida.
    [March 8, 2018]
    Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida; and Clyde M. Taylor, Jr. of Taylor & Taylor, LLC, St. Augustine, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

STATEMENT OF THE CASE AND FACTS

The underlying facts of this case were described in this Court's opinion on direct appeal. Guardado v. State , 965 So.2d 108, 110-12 (Fla. 2007). This Court affirmed Guardado's convictions and sentence of death. Id. at 120. This Court also affirmed the denial of Guardado's initial postconviction motion. Guardado v. State , 176 So.3d 886 (Fla. 2015).

In 2017, Guardado filed a motion for postconviction relief arguing that he was entitled to relief pursuant to Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). That motion was continued to give Guardado an opportunity to proceed in this Court with a habeas petition. Guardado filed a petition for a writ of habeas corpus arguing that he was entitled to relief pursuant to both Hurst v. Florida and Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court held:

We agree with Guardado that Hurst is applicable in his case. See Mosley v. State , 209 So.3d 1248 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reasonable doubt, we deny Guardado's petition. As we stated in Davis v. State , 207 So.3d 142, 175 (Fla. 2016) :
[T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations.... The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death.
Accordingly, the Hurst violation in this case is harmless beyond a reasonable doubt and, as in Davis , does not entitle Guardado to relief.

Guardado v. Jones , 226 So.3d 213, 215 (Fla. 2017).

Subsequently, the circuit court returned to its consideration of Guardado's successive motion for postconviction relief and summarily denied Guardado's motion, stating:

The current state of the law indicates Hurst would apply to the defendant's case. See Mosley v. State , 209 So.3d 1248 (Fla. 2016). However, the law is also clear the defendant is not entitled to a new penalty phase based on a harmless error analysis. See Davis v. State , 207 So.3d 142 (Fla. 2016). Indeed, this court is bound by the decision of the Supreme Court of Florida determining any Hurst error in the instant case is harmless beyond a reasonable doubt. Guardado v. [Jones ], 226 So.3d 213 (Fla. 2017) (denying the defendant's petition for a writ of habeas corpus); Guardado v. [Jones ], No.SC17-389, 2017 WL 4150352 (Fla. Sept. 19, 2017) (denying the defendant's motion for rehearing). Therefore, the defendant is not entitled to relief under Hurst . As a result, the instant motion is denied.

Guardado v. State , No. 2004-CF-000903, order at 2-3 (Fla. 1st. Cir. Sept. 27, 2017).

Guardado filed the instant appeal. On October 31, 2017, this Court issued an order to show cause why the lower court's order should not be affirmed.

DISCUSSION

Guardado's argument here is nearly identical to that contained in his petition for a writ of habeas corpus filed in this Court on March 8, 2017, which this Court denied in Guardado v. Jones , 226 So.3d at 215. The proceedings below originated on July 5, 2016, but were continued to permit Guardado to seek Hurst relief from this Court via his habeas proceedings. After this Court denied Guardado's habeas petition, the postconviction proceedings resumed and the circuit court denied Guardado's motion. Order at 1.

The circuit court correctly concluded that this Court has addressed Guardado's claims. Guardado's arguments in the present appeal are indistinguishable from those contained in his habeas petition.

Further, we have considered and rejected Guardado's claim that Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), affect this Court's harmless error analysis in Hurst . See, e.g. , Franklin v. State , 43 Fla. L. Weekly S86, 2018 WL 897427 (Fla. Feb. 15, 2018) ; Truehill v. State , 211 So.3d 930 (Fla. 2017) ; Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

Because Guardado's claims have been previously rejected, we affirm the circuit court's summary denial of Guardado's successive motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. LAWSON, J., concurring in part and dissenting in part.

license: Public Domain

text:
    IN RE: AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR-SUBCHAPTER 4-7 (LAWYER REFERRAL SERVICES).
    No. SC16-1470
    Supreme Court of Florida.
    [March 8, 2018]
    Joshua E. Doyle, Executive Director, Michael J. Higer, President, Michelle R. Suskauer, President-elect, Michael S. Hooker, Chair, Carl B. Schwait, Past Chair, Board Review Committee on Professional Ethics, John Mitchell Stewart, Chair, Board Technology Committee, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner
    Bill Wagner, Tampa, Florida; Timothy P. Chinaris, on behalf of 1-800-411-PAIN Referral Service, LLC, Nashville, Tennessee; Charles A. Morehead III, on behalf of Broward County Bar Association, Sunrise, Florida; Charles D. Scott, St. Petersburg, Florida; Josh King, on behalf of Avvo, Inc., Seattle, Washington; Brad Salter and Robert J. Healy of Salter, Healy, LLC, St. Petersburg, Florida; and Tom Gordon, on behalf of Responsive Law, Washington, District of Columbia, Responding with comments
   PER CURIAM.

The Florida Bar petitions this Court to amend the Rules Regulating the Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar proposes comprehensively amending rule 4-7.22 (Lawyer Referral Services), and amending or deleting five other rules as a result of those amendments. The Bar's petition stems from In re Amendments to Rule Regulating the Florida Bar 4-7.22-Lawyer Referral Services , 175 So.3d 779 (Fla. 2015), where the Court rejected amendments to rule 4-7.22 proposed by the Bar and directed the Bar to propose amendments that "preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar." Id. at 781. The Court in that case found that the Bar had disregarded the findings of the Special Committee on Lawyer Referral Services (Special Committee) in its July 2012 Final Report as to the potential harm nonlawyer-owned for-profit referral services pose to the public. Id. In the report, the Special Committee concluded, after conducting an investigation into the regulation and practices of lawyer referral services in Florida, that for-profit lawyer referral services, particularly those that work in conjunction with other professionals or occupations and are not owned or operated by a member of the Bar, are more likely to run afoul of the Rules Regulating the Florida Bar and engage in activities that do not serve the public interest. Id. at 780-81. The Special Committee recommended greater regulation of lawyer participation in for-profit referral services and issued seven specific recommendations, the first of which provided:

1. A lawyer shall not accept client referrals from any person, entity or service that also refers or attempts to refer clients to any other type of professional service for the same incident, transaction or circumstance, and shall furthermore be prohibited from referring a client to any other professional service in consideration of the lawyer's receipt of referrals from any lawyer referral service.

Id. at 781.

The amendments proposed by the Bar in this case, despite the Court's clear direction, do not preclude lawyers from accepting referrals from lawyer referral services that are not owned or operated by a member of the Bar. The proposed amendments instead address lawyer participation in "matching" and other similar services not currently subject to regulation by the Bar that connect prospective clients with lawyers. The proposed amendments to rule 4-7.22 establish a single regulatory scheme under which lawyer participation in such services is subject to the same restrictions as lawyer referral services, lawyer directories, and other like services in which lawyer participation is currently regulated. The Bar's proposal prohibits lawyer participation in any service that connects prospective clients to lawyers for a fee, or any other type of benefit, unless the service complies with rule 4-7.22 and all other applicable rules.

In addition, the Bar proposes deleting or amending five other rules as a result of its proposed amendments to rule 4-7.22. Because lawyer directories are included in the proposed amendments to rule 4-7.22, the Bar proposes deleting rule 4-7.23 (Lawyer Directory). It also proposes amending rules 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion) to include terminology consistent with the proposed amendments to rule 4-7.22. The Board of Governors approved the proposed amendments on a voice vote with one objection. Pursuant to rule 1-12.1(g), the Bar published formal notice of its intent to file a petition recommending amendments to the Bar Rules. The Court received eight comments and the Bar filed a response.

Having considered the Bar's proposals, the comments filed, the Bar's response, and having had the benefit of oral argument, the Court adopts the amendments to the Rules Regulating the Florida Bar as proposed by the Bar. These amendments, though not consistent with our directive in In re Amendments to Rule Regulating the Florida Bar 4-7.22-Lawyer Referral Services , are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest. These amendments do not, however, resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident. The findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm. We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee's first recommendation.

Accordingly, the Rules Regulating the Florida Bar are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective on April 30, 2018, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.

LAWSON, J., concurs in part and dissents in part with an opinion, in which CANADY, J., concurs.

LEWIS, J., dissents.

LAWSON, J., concurring in part and dissenting in part.

I fully agree with the majority's decision to adopt the proposed rules in this case. I dissent from that portion of the opinion directing The Florida Bar to file a petition within ninety days proposing amendments to implement the Special Committee's July 2012 recommendation to prohibit a Florida lawyer from accepting client referrals "from any person, entity or service that also refers or attempts to refer clients to any other type of professional service for the same incident, transaction or circumstance." Majority op. at 165. The few individuals who still express support for this recommendation have identified only two entities to which the prohibition would apply ("411 Pain" and "Ask Gary," both of which refer clients to legal and medical professionals) and have not identified a single incident of misconduct by those entities or by any lawyer or medical professional who takes referrals from those entities. Although I certainly recognize the potential mischief that could flow from doctor/lawyer cross-referral relationships, those relationships exist and appear to be common. I have not been able to discern any basis for concluding that Ask Gary's or 411 Pain's model of connecting an injured citizen to a lawyer-which this nearly six-year-old recommendation would prohibit-poses any danger not existent in direct doctor/lawyer referral relationships-which no one has ever suggested could or should be barred. Additionally, I would note that under the newly adopted rules, Florida lawyers will be prohibited from taking referrals from 411 Pain and Ask Gary if these entities refuse to cooperate with any Florida Bar inquiry into their practices. The same is true of all other "qualified providers" operating in Florida. Accordingly, these rules will give The Florida Bar a way to determine whether further regulation is needed in this area. I would wait until The Florida Bar has made that determination, based upon hard data rather than innuendo and supposition, and would trust the Bar's conclusion (overwhelmingly supported) that it would be ill advised to adopt a rule based upon the now-outdated Special Committee recommendation.

CANADY, J., concurs.

APPENDIX

RULE 4-7.12 REQUIRED CONTENT

(a) Name and Office Location. All advertisements for legal employment must include:

(1) the name of at least 1 lawyer, the law firm, the lawyer referral service if the advertisement is for the lawyer referral service, the qualifying provider if the advertisement is for the qualifying provider, or the lawyer directory if the advertisement is for the lawyer directory, responsible for the content of the advertisement; and
(2) the city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised.

(b) Referrals. If the case or matter will be referred to another lawyer or law firm, the advertisement must include a statement tosuchthis effect.

(c)-(d) [No Change]

Comment

Name of Lawyer or Lawyer Referral Service

All advertisements are required to contain the name of at least 1 lawyer who is responsible for the content of the advertisement. For purposes of this rule, including the name of the law firm is sufficient. A lawyer referral service,qualifying provider or lawyer directory must include its actual legal name or a registered fictitious name in all advertisements in order to comply with this requirement.

Geographic Location

[No Change]

Referrals to Other Lawyers

[No Change]

Language of Advertisement

[No Change]

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in deceptive or inherently misleading advertising.

(a) [No Change]

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(1) statements or information that can reasonably be interpreted by a prospective client as a prediction or guaranty of success or specific results;
(2) references to past results unless suchthe information is objectively verifiable, subject to rule 4-7.14;
(3) comparisons of lawyers or statements, words or phrases that characterize a lawyer's or law firm's skills, experience, reputation or record, unless such characterization is objectively verifiable;
(4) references to areas of practice in which the lawyer or law firm does not practice or intend to practice at the time of the advertisement;
(5) a voice or image that creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee of the advertising firm. The following notice, prominently displayed would resolve the erroneous impression: Not an employee or member of law firm;
(6) a dramatization of an actual or fictitious event unless the dramatization contains the following prominently displayed notice: DRAMATIZATION. NOT AN ACTUAL EVENT. When an advertisement includes an actor purporting to be engaged in a particular profession or occupation, the advertisement must include the following prominently displayed notice: ACTOR. NOT ACTUAL [....];
(7) statements, trade names, telephone numbers, Internet addresses, images, sounds, videos or dramatizations that state or imply that the lawyer will engage in conduct or tactics that are prohibited by the Rules of Professional Conduct or any law or court rule;
(8) a testimonial:
(A) regarding matters on which the person making the testimonial is unqualified to evaluate;
(B) that is not the actual experience of the person making the testimonial;
(C) that is not representative of what clients of that lawyer or law firm generally experience;
(D) that has been written or drafted by the lawyer;
(E) in exchange for which the person making the testimonial has been given something of value; or
(F) that does not include the disclaimer that the prospective client may not obtain the same or similar results;
(9) a statement or implication that The Florida Bar has approved an advertisement or a lawyer, except a statement that the lawyer is licensed to practice in Florida or has been certified pursuant to chapter 6, Rules Regulating the Florida Bar; or
(10) a judicial, executive, or legislative branch title, unless accompanied by clear modifiers and placed subsequent to the person's name in reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law. For example, a former judge may not state Judge Doe (retired) or Judge Doe, former circuit judge. She may state Jane Doe, Florida Bar member, former circuit judge or Jane Doe, retired circuit judge....

Comment

Material Omissions

[No Change]

Implied Existence of Nonexistent Fact

[No Change]

Predictions of Success

[No Change]

Past Results

The prohibitions in subdivisions (b)(1) and (b)(2) of this rule preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, if the results are not objectively verifiable or are misleading, either alone or in the context in which they are used. For example, an advertised result that is atypical of persons under similar circumstances is likely to be misleading. A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading.SuchThe information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. An example of a past result that can be objectively verified is that a lawyer has obtained acquittals in all charges in 4 criminal defense cases. On the other hand, general statements such as, "I have successfully represented clients," or "I have won numerous appellate cases," may or may not be sufficiently objectively verifiable. For example, a lawyer may interpret the words "successful" or "won" in a manner different from the average prospective client. In a criminal law context, the lawyer may interpret the word "successful" to mean a conviction to a lesser charge or a lower sentence than recommended by the prosecutor, while the average prospective client likely would interpret the words "successful" or "won" to mean an acquittal.

Rule 4-1.6(a), Rules Regulating the Florida Bar, prohibits a lawyer from voluntarily disclosing any information regarding a representation without a client's informed consent, unless one of the exceptions to rule 4-1.6 applies. A lawyer who wishes to advertise information about past results must have the affected client's informed consent. The fact that some or all of the information a lawyer may wish to advertise is in the public record does not obviate the need for the client's informed consent.

Comparisons

[No Change]

Characterization of Skills, Experience, Reputation or Record

The rule prohibits statements that characterize skills, experience, reputation, or record that are not objectively verifiable. Statements of a character trait or attribute are not statements that characterize skills, experience, or record. For example, a statement that a lawyer is aggressive, intelligent, creative, honest, or trustworthy is a statement of a lawyer's personal attribute, but does not characterize the lawyer's skills, experience, reputation, or record.SuchThese statements are permissible.

Descriptive statements characterizing skills, experience, reputation, or a record that are true and factually verified are permissible. For example, the statement "Our firm is the largest firm in this city that practices exclusively personal injury law," is permissible if true, because the statement is objectively verifiable. Similarly, the statement, "I have personally handled more appeals before the First District Court of Appeal than any other lawyer in my circuit," is permissible if the statement is true, because the statement is objectively verifiable.

Descriptive statements that are misleading are prohibited by this rule. Descriptive statements such as "the best," "second to none," or "the finest" will generally run afoul of this rule, as such statements are not objectively verifiable and are likely to mislead prospective clients as to the quality of the legal services offered.

Aspirational statements are generally permissible as such statements describe goals that a lawyer or law firm will try to meet. Examples of aspirational words include "goal," "dedicated," "mission," and "philosophy." For example, the statement, "I am dedicated to excellence in my representation of my clients," is permissible as a goal. Similarly, the statement, "My goal is to provide high quality legal services," is permissible.

Areas of Practice

[No Change]

Dramatizations

A re-creation or staging of an event must contain a prominently displayed disclaimer, "DRAMATIZATION. NOT AN ACTUAL EVENT." For example, a re-creation of a car accident must contain the disclaimer. A re-enactment of lawyers visiting the re-construction of an accident scene must contain the disclaimer.

If an actor is used in an advertisement purporting to be engaged in a particular profession or occupation who is acting as a spokesperson for the lawyer or in any other circumstances where the viewer could be misled, a disclaimer must be used. However, an authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, may not be used in an advertisement to endorse or recommend a lawyer, or to act as a spokesperson for a lawyer underRulerule 4-7.15.

Implying Lawyer Will Violate Rules of Conduct or Law

Advertisements which state or imply that the advertising lawyers will engage in conduct that violates the Rules of Professional Conduct are prohibited. The Supreme Court of Florida found that lawyer advertisements containing an illustration of a pit bull canine and the telephone number 1-800-pitbull were false, misleading, and manipulative, because use of that animal implied that the advertising lawyers would engage in "combative and vicious tactics" that would violate the Rules of Professional Conduct.Fla. Bar v. Pape Fla. Bar v. Pape, 918 So.2d 240 (Fla.2005).

Testimonials

[No Change]

Florida Bar Approval of Ad or Lawyer

An advertisement may not state or imply that either the advertisement or the lawyer has been approved by The Florida Bar. Such a statement or implication implies that The Florida Bar endorses a particular lawyer. Statements prohibited by this provision include, "This advertisement was approved by The Florida Bar." A lawyer referral service also may not state that it is a "Florida Bar approved lawyer referral service," unless the service is a not-for-profit lawyer referral service approved under chapter 8 of the Rules Regulating the Florida Bar.A qualifying provider also may not state that it is a "Florida Bar approved qualifying provider" or that its advertising is approved by The Florida Bar.

Judicial, Executive, and Legislative Titles

This rule prohibits use of a judicial, executive, or legislative branch title, unless accompanied by clear modifiers and placed subsequent to the person's name, when used to refer to a current or former officer of the judicial, executive, or legislative branch. Use of a title before a name is inherently misleading in that it implies that the current or former officer has improper influence. Thus, the titles Senator Doe, Representative Smith, Former Justice Doe, Retired Judge Smith, Governor (Retired) Doe, Former Senator Smith, and other similar titles used as titles in conjunction with the lawyer's name are prohibited by this rule. This includes, but is not limited to, use of the title in advertisements and written communications, computer-accessed communications, letterhead, and business cards.

However, an accurate representation of one's judicial, executive, or legislative experience is permitted if the reference is subsequent to the lawyer's name and is clearly modified by terms such as "former" or "retired." For example, a former judge may state "Jane Doe, Florida Bar member, former circuit judge" or "Jane Doe, retired circuit judge."

As another example, a former state representative may not include "Representative Smith (former)" or "Representative Smith, retired" in an advertisement, letterhead, or business card. However, a former representative may state, "John Smith, Florida Bar member, former state representative."

Further, an accurate representation of one's judicial, executive, or legislative experience is permitted in reference to background and experience in biographies, curriculum vitae, and resumes if accompanied by clear modifiers and placed subsequent to the person's name,. For example, the statement "John Jones was governor of the State of Florida from [... years of service ...]" would be permissible.

Also, the rule governs attorney advertising. It does not apply to pleadings filed in a court. A practicing attorney who is a former or retired judgeshallmay not use the title in any form in a court pleading.If a former or retired judge uses her previous title in a pleading, she could be sanctionedA former or retired judge who uses that former or retired judge's previous title of "Judge" in a pleading could be sanctioned.

RULE 4-7.16 PRESUMPTIVELY VALID CONTENT

The following information in advertisements is presumed not to violate the provisions of rules 4-7.11 through 4-7.15:

(a) [No Change]

(b) Lawyer Referral Services and Qualifying Providers . A lawyer referral service or qualifying provider may advertise its name, location, telephone number, thereferral fee charged, its hours of operation, the process by which referrals or matches are made, the areas of law in which referrals or matches are offered, the geographic area in which the lawyers practice to whom those responding to the advertisement will be referred or matched.AThe Florida Bar's lawyer referral service or a lawyer referral service approved by The Florida Bar under chapter 8 of the Rules Regulating the Florida Bar also may advertise the logo of its sponsoring bar association and its nonprofit status.

Comment

[No Change]

RULE 4-7.17 PAYMENT FOR ADVERTISING AND PROMOTION

(a) [No Change]

(b) Payment for Referrals. A lawyer may not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising permitted by these rules, may pay the usual charges of a lawyer referral service, lawyer directory , qualifying provider or other legal service organization, and may purchase a law practice in accordance with rule 4-1.17.

(c) [No Change]

Comment

Paying for the Advertisements of Another Lawyer

[No Change]

Paying Others for Recommendations

A lawyer is allowed to pay for advertising permitted by this rule and for the purchase of a law practice in accordance with the provisions of rule 4-1.17, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs , qualifying providers, or lawyer directories and pay the usual fees charged by such programs, subject, however, to the limitations imposed by rules 4-7.22and 4-7.23. This rule does not prohibit paying regular compensation to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by this rule.

RULE 4-7.22 LAWYER REFERRAL SERVICES REFERRALS, DIRECTORIES AND POOLED ADVERTISING

(a) Applicability of Rule. A lawyer is prohibited from participation with any qualifying provider that does not meet the requirements of this rule and any other applicable Rule Regulating the Florida Bar.

(b) Qualifying Providers. A qualifying provider is any person, group of persons, association, organization, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms, including but not limited to:

(1) matching or other connecting of a prospective client to a lawyer drawn from a specific group or panel of lawyers or who matches a prospective client with lawyers or law firms;
(2) a group or pooled advertising program, offering to refer, match or otherwise connect prospective legal clients with lawyers or law firms, in which the advertisements for the program use a common telephone number or website address and prospective clients are then matched or referred only to lawyers or law firms participating in the group or pooled advertising program;
(3) publishing in any media a listing of lawyers or law firms together in one place; or
(4) providing tips or leads for prospective clients to lawyers or law firms.

(c) Entities that are not Qualifying Providers. The following are not qualifying providers under this rule:

(1) a pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration: and
(2) a local or voluntary bar association solely for listing its members on its website or in its publications.

( a d ) When Lawyers May Accept Referrels Participate with Qualifying Providers . A lawyer maynot accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service participate with a qualifying provider as defined in this rule only if the qualifying provider:

(1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer;
(2) receives no fee or charge that constitutes is a division or sharing of fees, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service is a not for profit service approved by The Florida Bar pursuant to chapter 8 of these rules;
(3) refers, matches or otherwise connects prospective clients only to persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida;
(4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per claim or occurrence;
(4) does not directly or indirectly require the lawyer to refer, match or otherwise connect prospective clients to any other person or entity for other services or does not place any economic pressure or incentive on the lawyer to make such referrals, matches or other connections;
(5) furnishes provides The Florida Bar, on a quarterly no less than an annual basis, with the names and Florida bar membership numbers of all lawyers participating in the service unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules;
(6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the service;
(6) provides the participating lawyer with documentation that the qualifying provider is in compliance with this rule unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules;
(7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service qualifying provider or a lawyer who accepts referrals from the service participates with the qualifying provider;
(8) neither represents nor implies to the public that the service qualifying provider is endorsed or approved by The Florida Bar, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service is subject approved by The Florida Bar pursuant to chapter 8 of these rules;
(9) uses its actual legal name or a registered fictitious name in all communications with the public;
(10) affirmatively states in all advertisements that it is a lawyer referral service; and
(11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service
(10) affirmatively discloses to the prospective client at the time a referral, match or other connection is made of the location of a bona fide office by city, town or county of the lawyer to whom the referral, match or other connection is being made; and
(11) does not use a name or engage in any communication with the public that could lead prospective clients to reasonably conclude that the qualifying provider is a law firm or directly provides legal services to the public.

( b e ) Responsibility of Lawyer. A lawyer whoaccepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this subchapter participates with a qualifying provider:

(1) must report to The Florida Bar within 15 days of agreeing to participate or ceasing participation with a qualifying provider unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules; and
(2) is responsible for the qualifying provider's compliance with this rule if:
(A) the lawyer does not engage in due diligence in determining the qualifying provider's compliance with this rule before beginning participation with the qualifying provider; or
(B) The Florida Bar notifies the lawyer that the qualifying provider is not in compliance and the lawyer does not cease participation with the qualifying provider and provide documentation to The Florida Bar that the lawyer has ceased participation with the qualifying provider within 30 days of The Florida Bar's notice.

(c) Definition of Lawyer Referral Service. A "lawyer referral service" is:

(1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or
(2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.

A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration, is not a lawyer referral service within the definition of this rule.

Comment

Every citizen of the state should have access to the legal system. A person's access to the legal system is enhanced by the assistance of a qualified lawyer. Citizens often encounter difficulty in identifying and locating lawyers who are willing and qualified to consult with them about their legal needs. It is the policy of The Florida Bar to encourage qualifying providers to: (a) make legal services readily available to the general public through a referral method that considers the client's financial circumstances, spoken language, geographical convenience, and the type and complexity of the client's legal problem; (b) provide information about lawyers and the availability of legal services that will aid in the selection of a lawyer; and (c) inform the public where to seek legal services.

Subdivision (b)(3) addresses the publication of a listing of lawyers or law firms together in any media. Any media includes but is not limited to print, Internet, or other electronic media.

A lawyer may not participate with a qualifying provider that receives any fee that constitutes a division of legal fees with the lawyer, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules. A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, would be an improper division of fees. Additionally, a fee that constitutes an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer's professional judgment in rendering legal services to the client. See e.g. rules 4-5.4 and 4-1.7(a)(2). Examples of direction, regulation or influence include when the qualifying provider places limits on a lawyer's representation of a client, requires or prohibits the performance of particular legal services or tasks, or requires the use of particular forms or the use of particular third party providers, whether participation with a particular qualifying provider would violate this rule requires a case-by-case determination.

Division of fees between lawyers in different firms, as opposed to any monetary or other consideration or benefit to a qualifying provider, is governed by rule 4-1.5(g) and 4-1.5(f)(4)(D).

If a qualifying provider has more than 1 advertising or other program that the lawyer may participate in, the lawyer is responsible for the qualifying provider's compliance with this rule solely for the program or programs that the lawyer agrees to participate in. For example, there are qualifying providers that provide a directory service and a matching service. If the lawyer agrees to participate in only one of those programs, the lawyer is responsible for the qualifying provider's compliance with this rule solely for that program.

A lawyer who participates with a qualifying provider should engage in due diligence regarding compliance with this rule before beginning participation. For example, the lawyer should ask The Florida Bar whether the qualifying provider has filed any annual reports of participating lawyers, whether the qualifying provider has filed any advertisements for evaluation, and whether The Florida Bar has ever made inquiry of the qualifying provider to which the qualifying provider has failed to respond. If the qualifying provider has filed advertisements, the lawyer should ask either The Florida Bar or the qualifying provider for copies of the advertisement(s) and The Florida Bar's written opinion(s). The lawyer should ask the qualifying provider to provide documentation that the provider is in full compliance with this rule, including copies of filings with the state in which the qualifying provider is incorporated to establish that the provider is using either its actual legal name or a registered fictitious name. The lawyer should also have a written agreement with the qualifying provider that includes a clause allowing immediate termination of the agreement if the qualifying provider does not comply with this rule.

A lawyer participating with a qualifying provider continues to be responsible for the lawyer's compliance with all Rules Regulating the Florida Bar. For example, a lawyer may not make an agreement with a qualifying provider that the lawyer must refer clients to the qualifying provider or another person or entity designated by the qualifying provider in order to receive referrals or leads from the qualifying provider. See rule 4-7.17(b). A lawyer may not accept referrals or leads from a qualifying provider if the provider interferes with the lawyer's professional judgment in representing clients, for example, by requiring the referral of the lawyer's clients to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider. See rule 4-1.7(a)(2). A lawyer also may not refer clients to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider, unless the requirements of rules 4-1.7 and 4-1.8 are met and the lawyer provides written disclosure of the relationship to the client and obtains the client's informed consent confirmed in writing. A lawyer participating with a qualifying provider may not pass on to the client the lawyer's costs of doing business with the qualifying provider. See rules 4-1.7(a)(2) and 4-1.5(a).

RULE 4-7.23 LAWYER DIRECTORY

(a) Definition of Lawyer Directory. A lawyer directory is any person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers. A local or voluntary bar association that lists its members on its website or in its publications is not a lawyer directory under this rule. This rule does not apply to traditional telephone directories.

(b) When Lawyers May Advertise in a Directory. A lawyer may not advertise in a directory unless the directory:

(1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer;
(2) receives no fee or charge that constitutes a division or sharing of fees;
(3) lists only persons lawfully permitted to practice law in Florida when the services to be rendered constitute the practice of law in Florida;
(4) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the directory or a lawyer who pays to be listed in the directory;
(5) neither represents nor implies to the public that the directory is endorsed or approved by The Florida Bar;
(6) uses its actual legal name or a registered fictitious name in all communications with the public; and
(7) affirmatively states in all advertisements that it is a legal directory or lawyer directory.

(c) Responsibility of Lawyer. A lawyer who advertises in a lawyer directory is responsible for ensuring that any advertisements or written communications used by the directory comply with the requirements of the Rules Regulating the Florida Bar, and that the directory is in compliance with the provisions of this subchapter. It is a violation of these Rules Regulating the Florida Bar and a failure of such responsibility if the lawyer knows or should have known that the directory is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance.

      The Special Committee was tasked with the following:
      [R]eviewing the current practices of lawyer referral services, reviewing all rules applicable to lawyer referral services, and reviewing any other regulations that may be applicable to lawyer referral services. Included within this charge is reviewing the issue of whether and to what extent The Florida Bar can directly regulate lawyer referral services. The [S]pecial [C]ommittee is charged with making recommendations to The Florida Bar Board of Governors regarding any changes to the Rules Regulating [t]he Florida Bar and any other action deemed necessary to protect the public and ensure compliance with the lawyer advertising rules.
      In re Amend. to Rule Reg. the Fla. Bar 4-7.22-Lawyer Referral Services , 175 So.3d at 779 (second, third, and fourth alterations in original).


author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-03.
    No. SC17-1652
    Supreme Court of Florida.
    March 8, 2018
    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
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to standard jury instructions 16.10 (Possession of Material Including Sexual Conduct by a Child with Intent to Promote) and 25.7 (Possession of a Controlled Substance). The Committee requests that the Court authorize for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee's proposals derive from a referral made by the Court, requesting that the Committee "consider appointing a subcommittee of prosecutors, defense lawyers, and judges to more thoroughly consider [the issue of simplifying the possession instructions] and determine whether the criminal jury instructions should be simplified." Accordingly, the Committee created a subcommittee of eleven persons, including district court of appeal judges, circuit court judges, prosecutors, and defense attorneys, with the Committee's Chair acting as chair of the subcommittee. The subcommittee unanimously agreed, and the Committee also agreed, that the existing explanation of "possession" in the standard criminal jury instructions should be simplified. Following receipt of the subcommittee's recommendations on amending the possession-related instructions, the Committee ultimately submitted to the Court its proposals to amend instructions 16.10 and 25.7. We amend the instructions as proposed by the Committee, and significant amendments are discussed below.

Instruction 16.10 is amended to include an explanation of "possession," which was not previously defined in the instruction, as follows:

Possession.
To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation] that included sexual conduct by a child, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [presentation] and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [presentation].
Give if applicable.
Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere prox imity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.
Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation].

With regard to instruction 25.7, the explanation for "possession" used in instruction 16.10 as amended is also added to instruction 25.7, with modifications applicable to an offense pertaining to a controlled substance. In addition, the definitions for "mixture," "possession," "actual possession," and "constructive possession" are removed, as is the inference for "exclusive control."

Having considered the Committee's report, the comment from attorney Richard Sanders, and the Committee's response, we authorize for publication and use amended instructions 16.10 and 25.7, as proposed, and as set forth in the appendix to this opinion. New language is indicated by underlining, and deleted language is indicated by struck-through type. We caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. 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. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

16.10 POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE § 827.071(4), Fla. Stat.

To prove the crime of Possession of Material including Sexual Conduct by a Child with Intent to Promote, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) possessed with intent to promote a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation].
2. The [photograph] [motion picture] [exhibition] [show] [representation] [presentation] included, in whole or in part, sexual conduct by a child less than 18 years of age.

The possession of three or more copies of such [photograph] [motion picture] [exhibition] [show] [representation] [presentation] may justify a finding of an intent to promote if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed.

Definitions.

Possession.

To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation] that included sexual conduct by a child, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [presentation] and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [presentation].

Give if applicable.

Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.

Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation].

§ 827.071(1)(d), Fla. Stat.

"Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same.

§ 827.071(1)(h), Fla. Stat.

"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

Give if applicable.

A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct."

Give as applicable.

§ 827.071(1)(a), Fla. Stat.

"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

§ 827.071(1)(e), Fla. Stat.

"Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

§ 827.071(1)(f), Fla. Stat.

"Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, "sexual battery" does not include an act done for a bona fide medical purpose.

§ 827.071(1)(g), Fla. Stat.

"Sexual bestiality" means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

§ 827.071(1)(j), Fla. Stat.

"Simulated" means the explicit depiction of "sexual conduct," as defined above, which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

Lesser Included Offenses

POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE - 827.071(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Knowing possession of 827.071(5)(a) 16.11 a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, was known by defendant to include any sexual conduct by a child Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2008 [995 So.2d 489] and amended in 2018.

25.7 POSSESSION OF A CONTROLLED SUBSTANCE

§ 893.13(6), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged)is a controlled substance.

To prove the crime of Possession of a Controlled Substance, the State must prove the following [two] [three] [four] elements beyond a reasonable doubt:

1. (Defendant)knew of the presence of possessed a substance.

2. (Defendant)exercised centered or ownership over that substance.

3 2. The substance was (specific substancealleged).

§ 893.13(6)(b). Fla. Stat. Give if applicable.

The jury must make a finding as to weight if the defendant is charged with possessing more than 20 grams of cannahis.

4 3. The cannahis weighed more than 20 grams.

§ 893.13(6)(c), Fla. Stat. Give if applicable.

The jury must make a finding as to weight if the defendant is changed with violating § 893.13(6)(c), Fla. Stat.

4. The [(insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)] [combination of (insert names of substances listed in 893.03(1)(a) or 893.03(1)(b)] [mixture containing (insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)] weighed more than 10 grams.

To prove (defendant) "possessed a substance," the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give of applicable.

Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

Definitions.

Give if applicable. Cannabis. §§ 893.02(3), 893.13(6)(b), Fla. Stat.

See Comment section for medical marijuana.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant].

Give if applicable. Mixture. § 893.02(16), Fla. Stat.

"Mixture" means any physical combination of two or more substances, including, but not limited to, a blend, an aggregation, a suspension, an emulsion, a solution, or a dosage unit, whether or not such combination can be separated into its components by physical means, whether mechanical or thermal.

Possession.

There are two types of possession: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The substance is in the hand of or on the person, or
b. The substance is in a container in the hand of or on the person, or
c. The substance is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of a substance and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

Give if applicable. § 893.02(19), Fla. Stat.

"Possession" includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inference.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]
b. was within ready reach of the substance and the substance was under [his] [her] control, [or]
c. had exclusive control of the place where the substance was located,

you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [she] had knowledge of the presence of the substance or the power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the power and intention to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged).You are permitted may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the possessed the controlled substance.

If you are convinced beyond a reasonable doubt that (defendant)knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Possession of a Controlled Substance.

If you have a reasonable doubt on the question of whether (defendant)knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Possession of a Controlled Substance.

Lesser Included Offenses

POSSESSION OF A CONTROLLED SUBSTANCE - 893.13(6) CATEGORY ONE CATEGORY TWO FLA.STAT. INS.NO. Possession of Less 893.13(6)(b) 25.7 than 20 Grams of Cannabis if the felony level of cannabis is charged Attempt 777.04(1) 5.1 POSSESSION OF MORE THAN TEN GRAMS OF A CONTROLLED SUBSTANCE LISTED IN 893.13(1)(a) OR (1)(b) 893.13(6)(c) CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Possession of a 893.13(6)(a) 25.7 controlled substance (listed in 893.13(1)(a) of (1)(b)) Attempt 777.04(1) 5.1

Comments

§ 893.21, Fla. Stat.

A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be prosecuted for Possession of a Controlled Substance if the evidence of the possession was obtained as a result of the person seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or superficial possession.See cases such asHamilton v. State, 732 So.2d 493 (Fla. 2d DCA 1999) andSanders v. State, 563 So.2d 781 (Fla. 1st DCA 1990).

Starting in 2014, the Legislature passed laws pertaining to "medical cannabis" or "low-THC cannabis," which is excluded from the definition of "cannabis" in § 893.02(3), Fla. Stat.; is defined in § 381.986(1), Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], 2007 [969 So.2d 245], 2014 [153 So.3d 192], 2016 [191 So.3d 291],and 2017 [216 So.3d 497], and 2018.

      After the Court's referral to the Committee, the proposal to amend instruction 25.7 was published by the Committee, while the Court published the Committee's proposed amendments to instruction 16.10. One comment was received, pertaining to the proposal to amend instruction 25.7. The Committee chose the two instructions, one involving possession of material that contains sexual conduct by a child and one for offenses involving illegal drugs, for consideration by the Court, rather than proposing amendments to all possession-related instructions at one time. We appreciate the Committee's methodology in bringing this matter before the Court.

      Minor, technical changes to the instructions are not elaborated upon.

      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.


text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-09.
    No. SC17-2013
    Supreme Court of Florida.
    March 8, 2018
    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
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions, including amending specific instructions and adopting new ones. The Committee asks the Court to authorize the new and amended standard jury instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard criminal jury instructions 3.9(c) (Eyewitness Identification), 5.1 (Attempt to Commit Crime), 21.10 (Tampering with a [Witness] [Victim] [Informant] ), and 21.12 (Corruption by [Harm] [Threat of Harm] Against a Public Servant). In addition, the Committee proposes the following new instructions: 2.13 (Prior Inconsistent Statement as Impeachment); 8.26 (Sexual Cyberharassment); 25.13(f) ( [Ownership] [Lease] [Rental] of a Place for [ [Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a Controlled Substance Intended for Sale or Distribution] ); and 28.19 (Reckless [Operation of a Vessel] [Manipulation] ). Following publication in The Florida Bar News , the Committee received comments pertaining to the proposals to add or amend instructions 2.13, 8.26, and 25.13(f). The more significant amendments to the instructions are discussed below.

First, new instruction 2.13, if applicable and requested, informs the jurors how they are allowed to consider prior inconsistent statements introduced at trial for impeachment purposes only. Next, we amend instruction 3.9(c) on the basis that the Legislature enacted section 92.70, Florida Statutes (2017), effective October 1, 2017. See ch. 2017-91, Laws of Fla. Section 92.70 pertains to eyewitness identification and requires compliance with specific lineup procedures. Instruction 3.9(c), as amended, instructs jurors as to those procedures and that they may consider evidence of compliance or lack of compliance with those procedures to determine the reliability of eyewitness identifications.

Having considered the Committee's report and the comments submitted, we authorize for publication and use new and amended instructions 2.13, 3.9(c), 5.1, 8.26, 21.10, 21.12, 25.13(f), and 28.19, as proposed, and as set forth in the appendix to this opinion. 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. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

2.13 PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

To be given if applicable and if requested.

The evidence that a witness may have made a prior statement that is inconsistent with [his] [her] testimony in court should be considered only for the purpose of weighing the credibility of the witness's testimony and should not be considered as evidence or proof of the truth of the prior statement or for any other purpose.

Comments

This instruction should not be used for prior inconsistent statements that are admissible as substantive evidence and not merely as impeachment, e.g., prior testimony at a trial, hearing or other proceeding ( § 90.801(2)(a), Fla. Stat.) or statements by a defendant ( § 90.803(18), Fla. Stat.).

This instruction was adopted in 2018.

3.9(c) EYEWITNESS IDENTIFICATION

Give if eyewitness identification is a disputed issue and if requested.

You have heard testimony of eyewitness identification. In deciding how much weight to give to this testimony, you may consider the various factors mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification testimony, you may also consider:

1. The capacity and opportunity of the eyewitness to observe the offender based upon the length of time for observation and the conditions at the time of observation, including lighting and distance.
2. Whether the identification was the product of the eyewitness's own recollection or was the result of influence or suggestiveness.
3. The circumstances under which the defendant was presented to the eyewitness for identification.
4. Any inconsistent identifications made by the eyewitness.
5. Any instance in which the eyewitness did not make an identification when given the opportunity to do so.
6. The witness's familiarity with the subject identified.
7. Lapses of time between the event and the identification[s].
8. Whether the eyewitness and the offender are of different races or ethnic groups, and whether this may have affected the accuracy of the identification.
9. The totality of circumstances surrounding the eyewitness's identification.

Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.

You have heard testimony concerning a [live] [photo] lineup conducted by a law enforcement agency. Florida law requires that the person conducting the lineup must not have participated in the investigation of the crime alleged and must not have been aware of which person in the lineup was the suspect.

When an independent administrator was not used. Give as applicable.

As an alternative, it is permissible under Florida law if

[an automated computer program automatically administered the photo lineup directly to an eyewitness and pre vented the person conducting the lineup from seeing which photograph the eyewitness viewed until after the procedure was completed.]

[photographs were placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the person conducting the lineup did not see or did not track which photograph was presented to the eyewitness until after the procedure was completed.]

[the lineup procedure achieved neutral administration and prevented the person conducting the lineup from knowing which photograph was presented to the eyewitness during the identification procedure.]

Give in all cases involving a lineup.

Also, before conducting a lineup, the eyewitness must be instructed that:

1. The perpetrator might or might not be in the lineup;

Give # 2 only when an independent administrator was used.

2. The person conducting the lineup does not know the suspect's identity;

3. The eyewitness should not feel compelled to make an identification;

4. It is as important to exclude innocent persons as it is to identify the perpetrator; and

5. The investigation will continue with or without an identification.

The eyewitness must acknowledge, in writing, that he or she received a copy of the lineup instructions. If the eyewitness refused to sign a document acknowledging receipt of the instructions, the person conducting the lineup must document the refusal of the eyewitness to sign a document acknowledging receipt of the instructions, and the person conducting the lineup must sign the acknowledgment document himself or herself.

You may consider compliance or noncompliance with these requirements to determine the reliability of an eyewitness identification made during a lineup procedure.

Comment

This instruction was adopted in 2012 3 [ 141 So.3d 132 ] and amended in 2013 [ 122 So.3d 302 ] , and 2018.

5.1 ATTEMPT TO COMMIT CRIME

§ 777.04(1), Fla. Stat.

Use when attempt is charged or is a lesser included offense.

[To prove the crime of Attempt ed to Commit (crime charged attempted ), the State must prove the following two elements beyond a reasonable doubt:]

Use when necessary to define "attempt" as an element of another crime.

[In order to prove that the defendant attempted to commit the crime of (crime charged attempted ), the State must prove the following beyond a reasonable doubt:]

1. (Defendant) did some act toward committing the crime of (crime attempted) that went beyond just thinking or talking about it.

2. [He] [She] would have committed the crime except that

a. [someone prevented [him] [her] from committing the crime of (crime charged attempted ).]

[or]

b. [he] [she] failed.]

The crime of (crime attempted) is defined as (insert elements of crime attempted);

Give if applicable. Affirmative Defense. § 777.04(5)(a), Fla. Stat. Carroll v. State, 680 So.2d 1065 (Fla. 3d DCA 1996). Harriman v. State, 174 So.3d 1044 (Fla. 1st DCA 2015).

It is a defense to the crime of attempt to commit Attempted (crime charged attempted ) if the defendant abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose.

Renunciation is not complete and voluntary where the defendant failed to complete the crime because of unanticipated difficulties, unexpected resistance, a decision to postpone the crime to another time, or circumstances known by the defendant that increased the probability of being apprehended.

If you find that the defendant proved by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] not guilty of Attempted (crime attempted).

If the defendant failed to prove by a preponderance of the evidence that [he] [she] abandoned [his] [her] attempt to commit the offense or that [he] [she] otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose, you should find [him] [her] guilty of Attempted (crime attempted) if all the elements of the charge have been proven beyond a reasonable doubt.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

As of November 2015 October 2017, no case law addressed the issue of whether renunciation remains a defense to an attempt to commit a crime where some harm was done.

This instruction was adopted in 1981 and amended in 2017 [ 213 So.3d 680 ] and 2018.

8.26 SEXUAL CYBERHARASSMENT

§ 784.049(3), Fla. Stat.

To prove the crime of Sexual Cyberharassment, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) published a sexually explicit image of (victim) on an internet website.
2. The image contained or conveyed (victim's) personal identification information.
3. (Defendant) did so willfully and maliciously, for no legitimate purpose, and with the intent of causing substantial emotional distress to (victim).
4. (Victim) did not consent to the publication.

Definitions.

§ 784.049(2)(d), Fla. Stat.

"Sexually explicit image" means any image depicting nudity or depicting any person engaging in sexual conduct.

§ 784.049(2)(a), Fla. Stat.

"Image" includes but is not limited to, any photograph, picture, motion picture, film, video, or representation.

§ 847.001(9), Fla. Stat.

"Nudity" means showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. [A mother breastfeeding her baby does not under any circumstance constitute "nudity," irrespective of whether or not the nipple is covered during or incidental to feeding.]

§ 847.001(16), Fla. Stat.

If necessary, insert additional definitions from § 847.001, Fla. Stat.

"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. [A mother breastfeeding her baby does not under any circumstance constitute "sexual conduct."]

§ 784.049(2)(b), § 817.568(1)(f), Fla. Stat.

"Personal Identification Information" means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother's maiden name, official state or United States issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer's identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person's financial resources.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

"Willfully" means knowingly, intentionally and purposely.

As of October 2017, the courts had not determined whether the sexual cyberharassment statute requires actual malice or legal malice. The explanation of the two can be found in Seese v. State, 955 So.2d 1145 (Fla. 4th DCA 2007). In the absence of clarification, trial judges must choose one of the following:

"Maliciously" means intentionally and without any lawful justification.

"Maliciously" means with ill will, hatred, spite, or an evil intent.

Lesser Included Offense

SEXUAL CYBERHARASSMENT - 784.049(3) CATEGORY CATEGORY FLA. STAT INS. NO. ONE TWO None Attempt 777.04(1) 5.1

Comments

As of October 2017, it is unclear whether the existence of a prior violation should be treated as an element of the crime that must be found by the jury or whether a prior violation can be proven to the judge at sentencing.

If treated as an element, it would be error to inform the jury of a prior Sexual Cyberharassment conviction. Therefore, if the information or indictment contains an allegation of a prior Sexual Cyberharassment conviction, do not read the allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Sexual Cyberharassment, the historical fact of a previous conviction would be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh , 754 So.2d 691 (Fla. 2000).

As of October 2017, the courts had not determined if a withhold of adjudication counted as a conviction.

This instruction was adopted in 2018.

21.10 TAMPERING WITH A [WITNESS] [VICTIM] [INFORMANT]

§ 914.22(1), Fla. Stat.

To prove the crime of Tampering with a [Witness] [Victim] [Informant], the State must prove the following three elements beyond a reasonable doubt:

Give as applicable.
1. (Defendant) knowingly
a. used or attempted to use intimidation or physical force against (name of person).
b. threatened or attempted to threaten (name of person).
c. engaged in misleading conduct toward (name of person).
d. offered pecuniary benefit or gain to (name of person).
2. (Defendant) did so, with intent to cause or induce [any person] [ (name of person) ] to
a. withhold testimony or withhold a record, document, or other object, from an official investigation or official proceeding.
b. alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official investigation or official proceeding.
c. evade legal process summoning [him] [her] to appear as a witness, or to produce a record, document, or other object, in an official investigation or official proceeding.
d. be absent from an official proceeding to which [he] [she] has been summoned by legal process.
e. hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of [an offense] [a violation of a condition of [probation] [parole]
[release pending a judicial proceeding] ].
f. testify untruthfully in an official investigation or an official proceeding.
3. The [official investigation] [official proceeding] [offense]
[violation of a condition of [probation] [parole] [release] ]
[affected] [attempted to be affected], involved the
investigation or proceeding prosecution of a[n]
[non-criminal offense]
[misdemeanor]
[third degree felony]
[second degree felony]
[first degree felony [punishable by a term of years not
exceeding life] ]
[life felony]
[capital felony]
[offense of indeterminable degree].

Give if requested and if applicable.

§ 914.22(5)(a), Fla. Stat.

The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense.

§ 914.22(5)(b), Fla. Stat.

The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege].

§ 914.22(6)(a), Fla. Stat.

The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency.

§ 914.22(6)(b), Fla. Stat.

The State does not have to prove that the defendant knew or should have known that the judge is a judge of the state or that the law enforcement officer is an officer or employee of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant.

Definitions. § 914.21, Fla. Stat. Give as applicable.

"Misleading conduct" means:

a. Knowingly making a false statement;
b. Intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact and thereby creating a false impression by such statement;
c. With intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
d. With intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
e. Knowingly using a trick, scheme, or device with intent to mislead.

"Official investigation" means any investigation instituted by a law enforcement agency or prosecuting officer of the state or a political subdivision of the state or the Commission on Ethics.

"Official proceeding" means:

a. A proceeding before a judge or court or a grand jury;
b. A proceeding before the Legislature;
c. A proceeding before a federal agency that is authorized by law; or
d. A proceeding before the Commission on Ethics.

"Physical force" means physical action against another and includes confinement.

Lesser Included Offense

The degree of this crime depends on the severity of the underlying offense that is the subject of the tampering. See § 914.22(2), Fla. Stat.

Comment

This instruction was adopted in 2013 [ 131 So.3d 720 ] and amended in 2018.

21.12 CORRUPTION BY [HARM] [THREAT OF HARM] AGAINST A PUBLIC SERVANT

§ 838.021, Fla. Stat.

To prove the crime of Corruption by [Harm] [Threat of Harm] Against a Public Servant, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) unlawfully [harmed] [threatened unlawful harm] to [ (victim) ] [ (victim's) immediate family member] [a person with whose welfare (victim) was interested in].
2. At the time, (victim) was a public servant.
Give as applicable.
3. (Defendant) did so, with the intent or purpose to:
a. influence the performance of any act or omission which the defendant believed to be [or (victim) represented as being,] within the official discretion of (victim), in violation of a public duty, or in performance of a public duty.
b. cause or induce (victim) to [use] [exert] [procure the use or exertion of] any influence [upon] [with] any other public servant regarding any act or omission which the defendant believed to be [or (victim) represented as being,] within the official discretion of (victim), in violation of a public duty, or in performance of a public duty.

Give if requested and if applicable. § 838.021(2), Fla. Stat.

The State does not have to prove that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that the public servant had assumed office, that the matter was properly pending before [him] [her] or might by law properly be brought before [him] [her], that the public servant possessed jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the defendant's purpose.

Definitions. § 838.014, Fla. Stat.

§ 838.014(5), Fla. Stat.

"Harm" means pecuniary or other loss, disadvantage, or injury to the person affected.

"Public servant" means:

a. Any officer or employee of a state, county, municipal, or special district agency or entity;
b. Any legislative or judicial officer or employee;
c. Any person, except a witness, who acts as a general or special d. magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function;
e. A candidate for election or appointment to any of the positions listed above or an individual who has been elected to, but has yet to officially assume the responsibilities of public office.

§ 838.014(7)(a) Fla. Stat.

"Public servant" means any officer or employee of a governmental entity, including any executive, legislative, or judicial branch officer or employee.

Give if applicable. § 838.014(7)(b) and (7)(c), Fla. Stat.

"Public servant" also includes any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function or a candidate for election or appointment to any of these officer positions; or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office.

Lesser Included Offense

No lesser included offenses have been identified for these offenses. There is no crime of Attempt to Corrupt Public Servant by Threat.See Pagano v. State , 387 So.2d 349 (Fla. 1980).

Unlawfully harming a public servant is a second degree felony. Threatening unlawful harm is a third degree felony. See See § 838.021(3)(a) and (b), Fla. Stat.

Comment

This instruction was adopted in 2013 [ 131 So.3d 720 ] and amended in 2018.

25.13(f) [OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR [ [TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE] [MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR SALE OR DISTRIBUTION]

§ 893.1351(1), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Insert name(s) of controlled substance(s) ) [is a] [are] controlled substance[s].

To prove the crime of [Ownership] [Lease] [Rental] of a Place for [ [Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a Controlled Substance Intended for Sale or Distribution], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [owned] [leased] [rented] any [place] [structure [or part thereof] ] [conveyance].
2. At that time , (defendant) knew the [place] [structure [or part thereof] ] [conveyance] would be used for the purpose of [Trafficking in (insert name(s) of controlled substance) ] [Sale of a Controlled Substance] [Manufacture of a Controlled Substance that was intended for sale or distribution to another].

Inference. Give if applicable. § 893.1351(4), Fla. Stat.

You may conclude that cannabis was intended for sale or distribution upon proof of the possession of 25 or more cannabis plants.

§ 893.02(3), Fla. Stat.

"Cannabis" means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

Definitions. Give as applicable.

§ 810.011(1), Fla. Stat. Dubose v. State, 210 So.3d 641 (Fla. 2017).

A "structure" is any building of any kind, either temporary or permanent, which has a roof over it together with the curtilage. The "curtilage" is the enclosed land adjoining the structure. [The enclosure need not be continuous as it may have an ungated opening for entering and exiting.]

§ 810.011(3), Fla. Stat.

A "conveyance" means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car.

Insert elements of Trafficking alleged, if applicable.

"Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.

§ 893.02(15)(a), Fla. Stat.

"Manufacture" means the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable.

The term "manufacture" does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Lesser Included Offense

If a person owns, leases, or rents a place knowing that the place will be used for trafficking, sale or manufacture of drugs, then the person is guilty of Trafficking, Sale, or Manufacture of drugs as an aider or abettor. Therefore, Trafficking or Sale or Manufacture are Category One lesser included offenses depending on what is charged. Moreover, Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of various amounts of drugs. Trial judges must review not only the evidence but also the charging document to determine all of the appropriate lesser-included offenses.

Comments

It is unlawful to sell or manufacture all of the controlled substances listed in § 893.02, Florida Statutes. However, only certain controlled substances qualify for prosecution under the trafficking statute, § 893.135, Florida Statutes. Accordingly, the exact nature of the substance must be proven if the State is prosecuting under the trafficking prong of § 893.1351(1), Florida Statutes.

A special instruction will be required if the defense is that the defendant did not know of the illicit nature of the controlled substance. See § 893.101, Fla. Stat.

§ 893.1351(1), Florida Statutes, requires that the place will be used for certain drug-related activity while § 893.1351(3), Florida Statutes, requires that the place was being used to manufacture a controlled substance. See Zeigler v. State , 198 So.3d 1005 (Fla. 1st DCA 2016).

This instruction was adopted in 2018.

28.19 RECKLESS [OPERATION OF A VESSEL] [MANIPULATION]

§ 327.33(1), Fla. Stat.

To prove the crime of Reckless [Operation of a Vessel] [Manipulation], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [operated a vessel] [manipulated any [water skis] [aquaplane or similar device] ].
2. (Defendant) did so with a willful or wanton disregard for the safety of persons or property.
3. (Defendant) [operated the vessel] [manipulated the [water skis] [aquaplane or similar device] ] at a speed or in a manner as to [endanger or that was likely to endanger life or limb] [or] [injure a person] [or] [damage the property of a person].

Definitions. Give as applicable.

§ 327.02(30), Fla. Stat.

"Operate" means to be in charge of, in command of, [or in actual physical control of] a vessel upon the waters of this state, to exercise control over or to have responsibility for a vessel's navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.

State v. Davis, 110 So.3d 27 (Fla. 2d DCA 2013).

"Vessel" means a boat and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on water.

W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989).

"Willful" means intentionally, knowingly and purposely.

"Wanton" means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.

§ 327.02(32), Fla. Stat.

"Person" means an individual, partnership, firm, corporation, association, or other entity.

Give if applicable and insert additional instructions from § 327.331, Fla. Stat. as necessary.

A vessel other than a law-enforcement or rescue vessel that approaches within [100 feet of a divers-down warning device on a river, inlet, or navigation channel] [or] [300 feet of a divers-down warning device on waters other than a river, inlet, or navigation channel] must proceed no faster than necessary to maintain headway and steerageway. A violation of this law constitutes Reckless Operation of a Vessel.

Lesser Included Offense

RECKLESS [OPERATION OF A VESSEL] [MANIPULATION] - 327.33(1) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO None Culpable 784.05(1) 8.9 Negligence

Comment

This instruction was adopted in 2018.

      Comments to the instructions also are added or amended based upon the Committee's proposals but are not discussed, as we caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

      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.


text:
    Jason D. WEST, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3248
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shuron HESTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3606
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Cory ASHLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3495
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lyndon Bayne JOHNSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3301
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gerald BROWN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3657
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D.B., Mother of D.N.S., JR., and A.A.S., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    CASE NO. 1D17-3639
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brandon D. TATE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0410
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael G. LILJA, Appellant, v. MAYO CORRECTIONAL INSTITUTION OFFICIALS, Appellee.
    CASE NO. 1D16-5402
    District Court of Appeal of Florida, First District.
    Opinion filed December 11, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arthur Lee SISSON, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3547
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carl BOND, Petitioner, v. Julie L. JONES, Secretary, Department of Corrections, and The Florida Commission on Offender Review, Respondent.
    CASE NO. 1D17-1020
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Ian L. TUTTLE, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    CASE NO. 1D17-0907
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017. Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    FLORIDA PENINSULA INSURANCE COMPANY, Petitioner, v. Brian WESSON and Brandy Wesson, Respondents.
    CASE NO. 1D17-851
    District Court of Appeal of Florida, First District.
    Opinion filed December 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.