author: PER CURIAM. PARIENTE, J., dissenting.

text:
    Milo A. ROSE, Appellant, v. STATE of Florida, Appellee.
    No. SC17-878
    Supreme Court of Florida.
    [July 19, 2018]
    Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa Martin, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Discharged counsel appeals the postconviction court's order granting Milo A. Rose's pro se motion to dismiss postconviction proceedings and discharge collateral counsel. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm.

BACKGROUND

In 1985, this Court affirmed Rose's conviction for first-degree murder and his death sentence. Rose v. State (Rose I ), 472 So.2d 1155, 1156 (Fla. 1985). In so doing, we explained the facts as follows:

At approximately 10 p.m. on October 18, 1982, several witnesses were talking together outside one of their residences. Testimony at trial revealed that they saw two men walking down the street. Subsequently they heard the sound of breaking glass and saw that one of the men ... was lying on the ground. The other man, identified by witnesses as Milo Rose ... was standing over him. Evidence shows that [Rose] then walked to a nearby vacant lot, picked up a concrete block, and returned to the man on the ground. [Rose] raised the block over his head and hurled it down on [the victim's] head. He picked up the block and hurled it down a total of five or six times. The area where the incident occurred was well lighted, so the witnesses were able to see the man with the concrete block clearly.
[Rose] was living with ... the victim's mother [ ] at the time. Two other acquaintances were staying with them. On the night of the incident, these two acquaintances left an apartment which was in the vicinity where the killing occurred and found [Rose] hitchhiking on a nearby street. [Rose] got into their truck and stated several times that he had just killed [the victim]. [Rose] was later found in [the victim's mother's] house and was arrested [and charged with first-degree murder].
... [Rose] was tried by a jury which found him guilty as charged.

Id. at 1156-57.

In 1993, this Court affirmed the denial of Rose's initial motion for postconviction relief. Rose v. State (Rose II ), 617 So.2d 291, 298 (Fla.), cert. denied , 510 U.S. 903, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993). In 2000, this Court affirmed the summary denial of Rose's first successive motion for postconviction relief. Rose III , 774 So.2d at 637.

In 2003, discharged counsel, Bjorn E. Brunvand, was appointed to represent Rose. In 2005, Rose filed a motion to discharge Brunvand and represent himself in state court proceedings. After conducting a complete Faretta inquiry and finding that Rose "is an intelligent man" who was "waiving his right to counsel knowingly, intelligently[,] and with his eyes wide open," the postconviction court granted Rose's motion.

Nearly a decade later, Florida Rule of Criminal Procedure 3.851 was amended to prohibit capital defendants like Rose from representing themselves in postconviction proceedings in state court. See Fla. R. Crim. P. 3.851(b)(6). Although counsel was not reappointed to represent Rose in state court, in 2017, Brunvand, who represents Rose in federal court, filed a second successive postconviction motion on Rose's behalf-against Rose's wishes-seeking relief under the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

At the hearing on this motion, Rose informed the postconviction court that he wanted to dismiss postconviction proceedings and discharge Brunvand, who had not otherwise represented Rose in state court since being discharged in 2005. It was in this unusual procedural posture that the postconviction court conducted the inquiry required by Durocher v. Singletary , 623 So.2d 482 (Fla. 1993), and rule 3.851(i) to "determine if [Rose] understands the consequences of waiving collateral counsel and proceedings," Durocher , 623 So.2d at 485.

In its order granting Rose's motion, the postconviction court well explained its colloquy with Rose:

The Court warned [Rose] that if he chose to dismiss the motion [seeking Hurst relief] and discharge counsel his postconviction proceedings would end and counsel would not file additional motions on his behalf. [Rose] stated several times that he maintains his innocence and does not want to pursue any legal claims that do not lead to an evidentiary hearing on his actual innocence. [Rose] repeatedly expressed his belief that his sentence is invalid and he is entitled to immediate release from custody, but insisted that he does not want appointed counsel to represent him and does not want to pursue the motion counsel filed. The Court warned [Rose] that Rule 3.851 does not allow postconviction defendants to proceed pro se and explained that if he abandoned the motion, his substantive claims will not be ruled upon or reviewed by an appellate court. The Court pointed out that [Rose's] waiver of the motion is antithetical to his ultimate goal of reversing his sentence, but [Rose] maintained that he does not want to pursue the motion filed by defense counsel and wants defense counsel discharged from his case.

Finding that Rose "knowingly, intelligently, and voluntarily waived his right to pursue postconviction relief and his right to appointed collateral counsel," the postconviction court granted Rose's motion to dismiss postconviction proceedings and discharge collateral counsel. This is discharged counsel's appeal of the postconviction court's order, as required by rule 3.851(i)(8)(B).

ANALYSIS

In Durocher , this Court held that competent capital defendants may waive the right to postconviction counsel and proceedings but held that a Faretta -type inquiry is necessary to ensure that the waiver is knowing, intelligent, and voluntary. 623 So.2d at 483-85. The procedures for waiving postconviction counsel and proceedings that this Court established in Durocher have since been codified in rule 3.851(i), which provides in pertinent part:

(5) If the defendant is found to be incompetent for purposes of this rule, the court shall deny the motion without prejudice.
(6) If the defendant is found to be competent for purposes of this rule, the court shall conduct a complete ( Durocher / Faretta ) inquiry to determine whether the defendant knowingly, freely and voluntarily wants to dismiss pending postconviction proceedings and discharge collateral counsel.
(7) If the court determines that the defendant has made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order dismissing all pending postconviction proceedings and discharging collateral counsel.

Fla. R. Crim. P. 3.851(i). "Under rule 3.851(i), if the trial judge grants the motion, discharged counsel must seek review in this Court." Trease v. State , 41 So.3d 119, 124 (Fla. 2010) ; see also Fla. R. Crim. P. 3.851(i)(8)(B). This Court reviews a postconviction court's ruling regarding a defendant's competency to waive and its finding that the waiver was knowing, intelligent, and voluntary for an abuse of discretion. Trease , 41 So.3d at 124.

In this case, discharged counsel has not challenged Rose's competency. Because "[a] presumption of competence attaches from a determination of competency to stand trial," Durocher , 623 So.2d at 484, absent grounds to believe that Rose was not competent, the postconviction court was not required to revisit the issue of Rose's competency. See Fla. R. Crim. P. 3.851(i)(4) (requiring the trial judge to appoint experts to examine the defendant and to hold a hearing on the defendant's competency only if "the judge concludes that there are reasonable grounds to believe the defendant is not mentally competent for purposes of this [ rule 3.851(i) ]"). Although Rose's competency is not in dispute, discharged counsel argues that the postconviction court did not follow the procedure required by Durocher and rule 3.851(i) and abused its discretion in finding that Rose's waiver was knowing, intelligent, and voluntary. We disagree.

The record establishes that before granting Rose's motion to discharge Brunvand in 2005, the postconviction court conducted a complete Faretta inquiry. When the postconviction court revisited counsel's discharge in 2017-in light of the subsequent prohibition against capital defendants' representing themselves in state court postconviction proceedings-it inquired as to whether Rose understood the consequences of waiving postconviction counsel and proceedings. As the postconviction court explained in the order on appeal, during the colloquy, Rose expressed his beliefs that the federal courts will eventually recognize that Hurst v. Florida overturned his conviction and sentence and that future death warrant litigation in his case will allow him to revisit the issue of his guilt. Critically, however, the postconviction court explained, and Rose acknowledged, that he is betting his life on beliefs that are contrary to the law and that his postconviction waiver would abandon the Hurst claim that discharged counsel filed on his behalf.

Our precedent is clear that "we cannot deny [Rose] his right to control his destiny," Durocher , 623 So.2d at 484, by overturning the waiver of postconviction proceedings and counsel that Rose clearly desired, so long as the waiver was knowing, intelligent, and voluntary. On this record, we find no abuse of discretion in the postconviction court's finding that it was after conducting the inquiry required by Durocher and rule 3.851. Cf. Robertson v. State , No. SC16-1297, 2016 WL 7043020, at *2-3 (Fla. Dec. 1, 2016) (affirming postconviction court's order dismissing postconviction proceedings and discharging collateral counsel where the record established the defendant understood that his waiver meant that "his right to pursue postconviction proceedings would be forever lost," that "he would become warrant-eligible," that his waiver "was permanent and that he could not change his mind in the future," and that "by waiving postconviction proceedings, he was losing permanently his right to take advantage of any changes that may occur in the law").

CONCLUSION

The postconviction court followed the procedures outlined in Durocher and rule 3.851(i) and did not abuse its discretion in finding that Rose's waiver was knowing, intelligent, and voluntary. Therefore, we affirm the postconviction court's order granting Rose's motion to dismiss postconviction proceedings and discharge collateral counsel.

It is so ordered.

CANADY, C.J., and LEWIS, LABARGA, and LAWSON, JJ., concur.

PARIENTE, J., dissents with an opinion, in which POLSTON, J., concurs.

QUINCE, J., recused.

PARIENTE, J., dissenting.

I dissent because I conclude that the postconviction court erred in finding that Rose's postconviction waiver was knowing, intelligent, and voluntary. While I recognize that this Court reviews a postconviction court's order finding a knowing, intelligent, and voluntary waiver of postconviction under the deferential abuse of discretion standard, this Court cannot abdicate its duty in ensuring that the waiver is in fact unequivocal. See Trease v. State , 41 So.3d 119, 124 (Fla. 2010). Because the transcript in this case makes clear that Rose did not fully understand the consequences of waiving postconviction, specifically as to any future change in law including the retroactivity of Hurst , Rose's waiver was not unequivocal. Accordingly, I would reverse the postconviction court's order and reinstate discharged counsel.

Rose was sentenced to death following a jury's nonunanimous recommendation for death by a vote of nine to three. Rose v. State (Rose I ), 472 So.2d 1155, 1156 (Fla. 1985) ; majority op. at 548-49 note 1. His conviction and sentence were final before the Hurst retroactivity cutoff date set by this Court. See generally Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So.3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017) (setting the United States Supreme Court's decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as the proper cutoff).

This Court recently held, over Justice Lewis's dissent, that a valid waiver of postconviction proceedings and counsel precludes the defendant from taking advantage of any future change in the law, including Hurst relief. See generally State v. Silvia , 235 So.3d 349 (Fla. 2018). At the hearing on Rose's waiver in this case, Rose acknowledged that this Court's current case law did not entitle him to resentencing pursuant to Hurst . However, Rose made clear that he wished to retain the right to raise a Hurst -related claim in the future if there were favorable changes in the law from either this Court or the United States Supreme Court. Despite Rose's clear desire to preserve and raise future claims, the postconviction court found Rose's postconviction waiver knowing, intelligent, and voluntary.

Although Rose sought to dismiss the motion filed by his discharged counsel, the record as a whole shows that Rose neither fully understood that he was waiving nor agreed to waive any right to bring claims based on future favorable changes in the law. The following exchange between Rose and the postconviction court illustrates Rose's confusion regarding the implications of waiving his right to postconviction proceedings and counsel:

THE COURT: But that is not what I'm trying to explain to you, Mr. Rose, and I'm beginning to think that you don't quite understand the nature of the situation you're in. As it stands right now here today, if ... you stopped your postconviction proceedings and dismissed your collateral counsel, if tomorrow morning the governor signed a death warrant, there would be nothing standing between you and the death chamber. Do you understand that? Is that clear enough for you?
THE DEFENDANT: I understand that.
....
THE COURT: Okay. But, Mr. Rose, do you understand that if you end postconviction proceedings and dismiss collateral counsel, as it is right now, the way the law is, that is gonna to be your situation? Is that something-
THE DEFENDANT: Okay.... I'm doing it.
THE COURT: Okay. And you accept that?
THE DEFENDANT: I'm ending postconviction proceedings right now.
THE COURT: Okay. But the request is to stop them because-
THE DEFENDANT: I've stopped them.
THE COURT: Okay. But do you understand that and you're ... accepting that ... this is the end of it for you. Is that what you're trying to tell me?
THE DEFENDANT: I'm accepting that's the end of it for you, not for me, for you .... No longer gonna have a voice in this.
THE COURT: How do you think if you stop postconviction proceedings and you dismiss collateral counsel that ... you would not be executed?
THE DEFENDANT: I've told you before. I'm of the same opinion of Justice Pariente, that my sentence has already been reversed or overturned, you know, that the United States Supreme Court has already overturned my sentence by ruling it unconstitutional.
THE COURT: Do you understand that Justice Pariente has not come to the prison to unlock your cell door and escort you out to the parking lot? ... And that's not going to happen.
THE DEFENDANT: I'm of the same opinion. If she's wrong ..., I'm gonna be wrong too. Okay?

(Emphasis added.) In addition to this excerpt, Rose reiterated several times at the hearing on his waiver his belief that his death sentence is unconstitutional under Hurst despite this Court's retroactivity holdings. Specifically, Rose stated that he would stay apprised of the law and may have a claim in the future, stating:

THE COURT: So you just want to wait to see if the U.S. Supreme Court-
THE DEFENDANT: Right.
THE COURT: clarifies the law in your favor? THE DEFENDANT: Yes, sir. Thank you. Yes, sir. Thank you.

On this record, which makes clear that Rose did not properly understand that "his waiver of postconviction proceedings was permanent and that he could not change his mind in the future," I am unable to conclude that Rose's waiver was knowing, intelligent, and voluntary.

Robertson v. State , 2016 WL 7043020, *2 (Fla. Dec. 1, 2016). Therefore, I would hold that the postconviction court abused its discretion in finding that Rose's waiver was valid.

Accordingly, I dissent.

POLSTON, J., concurs.

      Rose's penalty phase jury recommended a sentence of death, Rose I , 472 So.2d at 1157, by a vote of nine to three, Rose v. State (Rose III) , 774 So.2d 629, 631 (Fla. 2000). The trial court found three aggravating factors: "(1) the capital felony was committed while [Rose] was under sentence of imprisonment; (2) [Rose] was previously convicted of felonies involving the use or threat of violence; and (3) the murder was committed in a cold, calculated, and premeditated manner." Rose I , 472 So.2d at 1157. After weighing the "evidence of mitigating circumstances, including [Rose's] drinking, his history of alcohol abuse, his anti-social personality disorder, and ... testimony that he was a good person," the trial court found that "there were no statutory or nonstatutory mitigating circumstances sufficient to outweigh or offset the aggravating circumstances" and followed the jury's recommendation and sentenced Rose to death. Id. Rose's sentence of death became final in 1985 after "counsel filed a certiorari petition with the United States Supreme Court, but at Rose's request, ... withdrew the petition before it was ruled upon." Rose v. McNeil , 634 F.3d 1224, 1233 (11th Cir.), cert. denied , 565 U.S. 857, 132 S.Ct. 190, 181 L.Ed.2d 98 (2011).

      That same year, Rose filed a federal petition for a writ of habeas corpus, which was held in abeyance "to await ... the outcome of additional state court proceedings," but ultimately denied in 2010. Rose , 634 F.3d at 1240.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      The following exemplifies the postconviction court's exchanges with Rose:
      THE COURT: [I]f you stopped your postconviction proceedings and dismissed your collateral counsel, if tomorrow morning the governor signed a death warrant, there would be nothing standing between you and the death chamber. Do you understand that? Is that clear enough for you?
      THE DEFENDANT: I understand that.
      THE COURT: Okay.
      THE DEFENDANT: And they can do that. I don't believe that's true.
      ....
      THE COURT: How do you think if you stop postconviction proceedings and you dismiss collateral counsel that there will be-that it would happen that you would not be executed?
      THE DEFENDANT: I've told you before. I'm of the same opinion of Justice Pariente, that my sentence has already been reversed or overturned, you know, that the United States Supreme Court has already overturned my sentence by ruling it unconstitutional [in Hurst v. Florida ].
      THE COURT: Do you understand that Justice Pariente has not come to the prison to unlock your cell door and escort you out to the parking lot?
      THE DEFENDANT: Well, I mean-
      THE COURT: And that's not going to happen.
      THE DEFENDANT: I'm of the same opinion. If she's wrong[,] I'm gonna be wrong too.

      We note that Rose filed a responsive brief pursuant to rule 3.851 (i)(8)(B). Rose does not contest the validity of the Durocher hearing. However, he asks this Court to "send[ ] this case back to the trial court" to address discharged counsel's alleged ineffectiveness in failing to raise certain claims pertaining to his alleged actual innocence and further seeks relief against discharged counsel for "filing fraudulent motions" and "ignoring [his] instructions not to file anything in his name other than issues pertaining to actual innocence." To the extent Rose is requesting that we reopen the postconviction proceedings he validly waived, we deny his request. See Trease , 41 So.3d at 126.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-12.
    No. SC17-2266
    Supreme Court of Florida.
    [July 12, 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 and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following standard criminal jury instructions pertaining to the offenses of failure to comply with reporting requirements for sexual offenders and sexual predators: 11.14 (Failure by a Sexual Offender to Comply with Registration Requirements (Initially Register, Report, or Provide Registration Items) ); 11.14(b) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Comply with Registration of [Employment] [Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Learning) ); 11.14(e) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Change of Residence to Another State or Jurisdiction or Country) ); 11.14(g) (Failure by a Sexual Offender to Comply with Registration Requirements (Failure to Report Twice a Year/Failure to Report Quarterly/Providing False Information) ); 11.14(h) (Sexual Offender Definitions); 11.15(b) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Provide Required Information) ); 11.15(c) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home) ); 11.15(d) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Comply with Registration of [Enrollment] [Employment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Education) ); 11.15(e) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report to Department of Highway Safety and Motor Vehicles) ); 11.15(h) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Respond to Address Verification Correspondence) ); 11.15(i) (Failure by a Sexual Predator to Comply with Registration Requirements (Failure to Report Intent to Move to Another State, Jurisdiction, or Country) ); and 11.15(1) (Sexual Predator Definitions).

All of the proposals were published by the Committee in The Florida Bar News . No comments were received by the Committee. After the Committee filed its report, the Court did not publish the Committee's proposals for comment. The changes to the jury instructions for sexual offenders and sexual predators' failure to comply with reporting requirements are made in response to statutory changes by the Legislature in chapter 2016-104, sections 1 and 3, and chapter 2017-107, sections 1-2, Laws of Florida, amending sections 943.0435 and 775.021, Florida Statutes.

Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use. 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.

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

Attachment APPENDIX

11.14 FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

(Initially Register, Report, or Provide Registration Items)

§ 943.0435(2)(a) (c), Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status an element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, 3e, or 3f as applicable.

3. (Defendant)
a. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after establishing permanent, temporary, or transient residence within this state.
b. knowingly failed to report in person at an office of the sheriff of (name of county) County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections] [custody of a private correctional facility].
c. knowingly failed to register in person at an office of the sheriff of (name of county) County within 48 hours after having been convicted by a court in that county of an offense requiring registration.
d. knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [ (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute).]
e. knowingly failed to report in person at an office of the sheriff of (name of county) within 48 hours after any change in vehicles owned to report those vehicle information changes.
f. knowingly failed to provide an office of the sheriff of (name of county) with (insert information, such as criminal and corrections records, nonprivileged personnel and treatment records, and evidentiary genetic markers), which [he] [she] knew had been deemed necessary by the Department of Law Enforcement and which was available.

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find (defendant) guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

In some cases, a special instruction will be needed if the sexual offender initially reported but then failed to properly report a change in the information required to be provided pursuant to § 943.0435(2)(a)2., Fla. Stat.

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.14(b) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Comply with [Registration ] [or] [a Change] of [Employment] [Enrollment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Learning)

§ 943.0435(2)(b)2., Fla. Stat. or § 943.0435(4)(e)2., Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable. 3a is for initial registration with the sheriff and 3b is for changes to the initial information.

3. (Defendant)a. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide the office of the sheriff of (name of county) County with the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status.
b. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide [through the on-line system of the Florida Department of Law Enforcement] [or] [in person at an office of the sheriff of (name of county) County] [or] [in person at the Department of Corrections if [he] [she] was in the custody or control, or under the supervision of the Department of Corrections] [or] [in person at the Department of Juvenile Justice if [he] [she] was in the custody or control, or under the supervision of the Department of Juvenile Justice] with any change to the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status, within 48 hours after the change.
a. [is] [was] enrolled, employed, volunteering, or carrying on a vocation at an institution of higher education in this state, and
knowingly failed to provide an office of the sheriff of (name of county) County with [(the name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute).]
b. [is] [was] enrolled, employed, volunteering or carrying on a vocation at an institution of higher education in this state.
undertook a change in [his] [her] enrollment or
employment status, and
knowingly failed to report this change in person at an office of the sheriff of (name of county) County within 48 hours after the change.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] .

There is no statute for the defense of being misinformed or otherwise prevented from complying with registration requirements, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the [office of the sheriff ] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff ] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the [office of the sheriff ] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the [office of the sheriff ] [Department of Highway Safety and Motor Vehicles] [Department of Corrections] [Department of Juvenile Justice] misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.14(e) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Report Change of Residence to Another State or Jurisdiction or Country)

§ 943.0435(7), Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following four elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.
3. (Defendant) intended to leave this State to establish residence in another [state] [jurisdiction] [country] on (date).

Give as applicable.

4. a. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction within the United States.
b. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 21 days before the date on which [he] [she] intended to leave this state to establish residence for 5 days or more outside the United States [at least 21 days before the date on which [he] [she] intended to leave this state to establish residence for 5 days or more outside the United States] [as soon as possible before departure if [he] [she] did not know about leaving this state to establish residence for 5 days or more outside the United States at least 21 days in advance of the departure] .
c. (Defendant) knowingly failed to provide the [address, municipality, county, and state] [address and country] of [his] [her] intended address, when [he] [she] reported to the sheriff's office of the county of [his] [her] current residence [his] [her] intention to establish residence in another [state] [jurisdiction] [country].
d. (Defendant) intended to travel internationally and knowingly failed to provide to the office of the sheriff in the county of [his] [her] residence [his] [her] expected departure and return dates, flight number, [airport] [cruise] of departure or any other means of intended travel.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.14(g) FAILURE BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Report Twice a Year/Failure to Report Quarterly/Providing False Information)

§ 943.0435(14)(a)-(b), Fla. Stat.

Give this statement if the charge is failure to report twice a year during the sexual offender's birthday month and six months later pursuant to § 943.0435(14)(a), Fla. Stat., or, for certain specified violators, failure to report during the sexual offender's birthday month and every third month thereafter pursuant to § 943.0435(14)(b), Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable if § 943.0435(14)(a), Fla. Stat., is charged.
1. (Defendant)
a. is a sexual offender.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

Give 1c or 1d as applicable if § 943.0435(14)(b), Fla. Stat., is charged.

c. is a sexual offender and is required to report and reregister as a result of a conviction for (insert relevant factor in § 943.0435(14)(b)1.-(14)(b)101., Fla. Stat.).
d. has agreed or stipulated that [he] [she] has been convicted as a sexual offender and that [he] [she] is required by law to report in person during [his] [her] birthday month and reregister every third month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual offender" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, 3e, 3f, or 3g as applicable.

3. (Defendant)
a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (year) to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.
b. knowingly failed to reregister by reporting in person during the sixth month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.
c. knowingly failed to reregister by reporting in person during every third month following [his] [her] (year)
birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.
d. knowingly failed to respond to the address verification correspondence from the Florida Department of Law Enforcement within three weeks from the date of the correspondence.
e. reported to an office of the sheriff of (name of county) to reregister,
and
Give i or ii as applicable.
i. knowingly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute).
ii. knowingly failed to provide that office with any one or more of the following items: (name the unprovided registration items charged, as worded in the statute).
f. knowingly failed to report all [electronic mail addresses] [and] [or] [all internet identifiers].
g. knowingly provided false registration information by act or omission.

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the [office of the sheriff] [Florida Department of Law Enforcement] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff] [Florida Department of Law Enforcement] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the [office of the sheriff] [Florida Department of Law Enforcement] did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the [office of the sheriff] [Florida Department of Law Enforcement] misinformed (defendant) or otherwise prevented [him] [her] from complying, with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

This instruction covers some of the ways a defendant can violate § 943.0435(14), Fla. Stat. There are other possibilities within the statute that will require a special instruction.

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2014 [140 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.14(h) SEXUAL OFFENDER DEFINITIONS

§ 943.0435(1), Fla. Stat.

Definitions.

"Sexual offender" means a person who (Insert the appropriate criteria specified by § 943.0435(1)), Fla. Stat.

"Convicted" means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For juvenile, military, federal and out of state convictions see § 943.0435(1), Fla. Stat.)

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Change in enrollment or employment status" means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.

"Change in status at an institution of higher education" means the commencement or termination of enrollment, including, but not limited to, traditional classroom setting or online courses, or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education.

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Internet identifier" means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. "Internet identifier" does not include a date of birth, social security number, personal identification number (PIN), or password.

"Social Internet communication" means any communication through a commercial social networking website or application software. The term does not include any of the following:

1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;

2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or

3. Communication with a governmental entity.

"Commercial social networking website" means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

"Application software" means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

"Physical residential address" does not include a post office box, but may be a location that has no specific street address.

"Permanent residence" means a place where the person abides, lodges, or resides for 5 or more consecutive days.

"Professional license" means the document of authorization or certification issued by an agency of this state for a regulatory purpose, or by any similar agency in another jurisdiction for a regulatory purpose, to a person to engage in an occupation or to carry out a trade or business.

"Temporary residence" means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person's permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

"Transient residence" means a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person's permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Internet identifier" means all electronic mail, chat, instant messenger, social networking, application software, or similar names used for Internet communication, but does not include a date of birth, social security number, or personal identification number (PIN).

"Vehicles owned" means any motor vehicle which is registered, coregistered, leased, titled, or rented by a sexual predator or sexual offender; a rented vehicle that a sexual predator or sexual offender is authorized to drive; or a vehicle for which a sexual predator or sexual offender is insured as a driver. The term also includes any motor vehicle which is registered, coregistered, leased, titled, or rented by a person or persons residing at a sexual predator's or sexual offender's permanent residence for 5 or more consecutive days.

"Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power [but the term does not include traction engines, road rollers, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds].

["Motor vehicle" includes a recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.]

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], and 2016 [195 So.3d 1088] and 2018.

11.15(b) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Provide Required Information)

§ 775.21(6)(a)1., Fla. Stat.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual predator" or "convicted."

2. (Defendant) established or maintained a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

§ 775.21(6)(a)1., Fla. Stat.
3. a. (Defendant) knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [ (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute)].
§ 775.21(6)(a)1.cd., Fla. Stat.
b. (Defendant) knowingly failed to provide an office of the sheriff of (name of county) within 48 hours after a change in vehicles owned to report those vehicle information changes.

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.2d 1090], 2013 [113 So.3d 754], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(c) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home)

§775.21(6)(a)1.ab., Fla. Stat.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual predator" or "convicted."

2. (Defendant) established or maintained a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)
a. used as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];
and
knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute)]of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resides.
b. used as [his] [her] place of residence a [vessel] [live-aboard vessel] [houseboat];
and
knowingly failed to provide an office of the sheriff of (name of the county) County with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute)] of the [vessel] [live-aboard vessel] [houseboat] where [he] [she] resides.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions. The definitions for trailer, mobile home, and manufactured home are in § 320.01, Fla. Stat., and the definitions for vessel, live-aboard vessel, and houseboat are in § 327.02, Fla. Stat.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(d) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Comply with [Registration] [or] [a Change] of [Enrollment] [Employment] [Volunteering] [Carrying on a Vocation] at an Institution of Higher Education)

§ 775.21(6)(a)1.bc., Fla. Stat. and § 775.21(6)(g)5.b.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:
Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the Court should not give the definition of "sexual predator" or "convicted."

2. (Defendant) [established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a, 3b, or 3c 3a or 3b as applicable. 3a is for initial registration with the sheriff and 3b is for changes to the initial information.

3. (Defendant) a. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide the office of the sheriff of (name of county) County with the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status.
b. (Defendant) was enrolled or employed, whether for compensation or as a volunteer, at an institution of higher education in this state, and knowingly failed to provide [through the on-line system of the Florida Department of Law Enforcement] [or] [in person at an office of the sheriff of (name of county) County] [or] [in person at the Department of Corrections if [he] [she] was in the custody or control, or under the supervision of the Department of Corrections] [or] [in person at the Department of Juvenile Justice if [he] [she] was in the custody or control, or under the supervision of the Department of Juvenile Justice] with a change in the name, address, and county of each institution, including each campus attended, and [his] [her] enrollment, volunteer, or employment status, within 48 hours after the change.
a. [is] [was] enrolled, employed, volunteering, or carrying on a vocation at an institution of higher education in this state, and knowingly failed to provide the office of the sheriff of (name of county) County with the [(name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ].
b. [is] [was] enrolled, employed, volunteering, or carrying on a vocation at an institution of higher education in this state;
undertook a change in [his] [her] enrollment, volunteer, or employment status, and
knowingly failed to report this change in person at an office of the sheriff of (name of county) County within 48 hours after the change.
c. [is] [was] in the custody of or under the supervision of the Department of Corrections;
[is] [was] enrolled, employed, volunteering, or carrying on a vocation at an institution of higher education in this state;
undertook a change in [his] [her] enrollment or employment status, and
knowingly failed to report this change to the Department of Corrections within 48 hours after the change.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [Department of Corrections] [Department of Juvenile Justice] .

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the [office of the sheriff] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff] [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the [office of the sheriff] [Department of Corrections] [Department of Juvenile Justice] did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the [ office of the sheriff ] [Department of Corrections] [Department of Juvenile Justice] misinformed (defendant) or otherwise prevented [him] [her]

from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(e) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Report to Department of Highway Safety and Motor Vehicles)

§ 775.21(6)(f), Fla. Stat.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual predator" or "convicted."

2. (Defendant) [established] [maintained] a [permanent] [temporary] [transient] residence in (name of county) County, Florida.
Give 3a or 3b as applicable.
3. (Defendant) was not incarcerated and had registered as a sexual predator with an office of the sheriff of (name of county) County,
a. was not incarcerated; but [he] [she] failed to report in person at a driver license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering with the sheriff's office to present proof of this registration.
[he] [she] resided in the community and was [under the supervision] [not under the supervision] of the Department of Corrections;
[he] [she] registered as a sexual predator with an office of the sheriff of (name of county) County; and
knowingly failed to report in person at a driver license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering to present proof of this registration.
b. and had reported in person to a driver license office of the Department of Highway Safety and Motor Vehicles, and either but [he] [she] knowingly failed to [secure a Florida driver's license] [renew a Florida driver's license] [secure an identification card] . or secured a Florida driver's license] [renewed [his] [her] Florida driver's license] [secured a Florida identification card], but in doing so,
Give one or both of the following as applicable to the charge.
i. failed to report to that office that [he] [she] was a sexual predator.
ii. failed to provide that office with [(name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute)].
c. and had reported in person to a driver license office of the Department of Highway Safety and Motor Vehicles, but [he] [she] did not report to that office that [he] [she] was a sexual predator.
d. and had reported in person to a driver license office of the Department of Highway Safety and Motor Vehicles, but [he] [she] failed to provide that office with (insert unprovided registration items).
e. and had reported in person to a driver license office of the Department of Highway Safety and Motor Vehicles, but [he] [she] failed to provide that office with (insert unprovided registration item) , which were necessary to confirm [his] [her] identity.
f. and had reported in person to a driver license office of the Department of Highway Safety and Motor Vehicles, but [his] [her] place of residence was a [motor vehicle] [trailer] [mobile home] [manufactured home] [vessel] and [he] [she] failed to provide that office with (insert unprovided registration item).

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the Department of Highway Safety and Motor Vehicles.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the Department of Highway Safety and Motor Vehicles did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the Department of Highway Safety and Motor Vehicles misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment s

§ 775.21(6)(f), Fla. Stat., has an exception if a driver license or identification card that complies with the requirements of § 322.141(3), Fla. Stat., was previously secured or updated under § 944.607, Fla. Stat. If this provision of the statute is an issue in the case, the trial judge will have to draft a special instruction.

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(h) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Respond To Address Verification Correspondence)

§ 775.21(10)(a), Fla. Stat.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of "sexual predator" or "convicted."

2. (Defendant) established or maintained a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a , or 3b , or 3c as applicable.

3. a. (Defendant) knowingly failed to respond to address verification correspondence from the Florida Department of Law Enforcement within three weeks from the date of the correspondence.
b. (Defendant) knowingly provided false registration information by act or omission.
c. (Defendant) knowingly failed, by act or omission, to (insert what is alleged and required by the statute).

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the Florida Department of Law Enforcement.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the Florida Department of Law Enforcement misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Florida Department of Law Enforcement misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the Florida Department of Law Enforcement did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the Florida Department of Law Enforcement misinformed (defendant) or otherwise prevented [him] [her] from complying, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

There are other penalties in § 775.21(10)(a), Fla. Stat., that may require a special instruction.

This instruction was adopted in 2008 [983 So._2d 531] and amended in 2012 [85 So.3d 1090], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(i) FAILURE BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Report Intent to Move to Another State, Jurisdiction, or Country)

§ 775.21(6)(i), Fla. Stat.

To prove the crime of Failure by a Sexual Predator to Comply with Registration Requirements, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.
1. (Defendant)
a. is a sexual predator.
b. has agreed or stipulated that he has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on-the-record colloquy with the defendant. See Brown v. State, 719 So.2d 882 (Fla. 1998); Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of "sexual predator" or "convicted."

2. (Defendant) established or maintained a permanent, temporary, or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)
a. intended to leave this State to establish a permanent, temporary, or transient residence in another state, jurisdiction, or country on (date);
and 1. knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction within the United States.
or
2. knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 21 days before [his] [her] planned departure date if the intended residence of 5 days or more was outside of the United States [at least 21 days before the date on which [he] [she] intended to leave this state to establish residence for 5 days or more outside the United States] [as soon as possible before departure if [he] [she] did not know about leaving this state to establish residence for 5 days or more outside the United States at least 21 days in advance of the departure].
b. (Defendant)
reported to an office of the sheriff of the county of [his] [her] current residence [his] [her] intention to establish residence in another state, or jurisdiction, or country;
and
knowingly failed to provide [[his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute).]
c. (Defendant) intended to travel internationally and knowingly failed to provide to the office of the sheriff in the county of [his] [her] current residence [his] [her] expected departure and return dates, flight number, [airport] [cruise] of departure or any other means of intended travel.

Read only if the defendant is charged with failing to provide a physical residential address.

The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So.3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard:

If you find that the State proved beyond a reasonable doubt that the office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2014 [148 So.3d 1204], and 2016 [195 So.3d 1088], and 2018.

11.15(l ) SEXUAL PREDATOR DEFINITIONS

§ 775.21(2) and (4), Fla. Stat.

Definitions.

"Sexual predator" means a person who:

has been designated a sexual predator, in a written order of a Florida court, on or after October 1, 1993; and
has not received a pardon for the offense(s) necessary for the designation as a sexual predator; and
the written order designating the defendant a sexual predator has not been set aside in any judicial proceeding.

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Change in enrollment or employment status" means the commencement or termination of enrollment or employment or a change in location of enrollment or employment.

"Change in status at an institution of higher education" means the commencement or termination of enrollment, including, but not limited to, traditional classroom setting or online courses, or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education.

"Community" means any county where the sexual predator lives or otherwise establishes or maintains a permanent, temporary, or transient residence.

"Convicted" means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For military, federal and out of state convictions, see § 775.21(2)(e), Fla. Stat.)

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Internet identifier" means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. "Internet identifier" does not include a date of birth, social security number, personal identification number (PIN), or password.

"Social Internet communication" means any communication through a commercial social networking website or application software. The term does not include any of the following:

1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;

2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or

3. Communication with a governmental entity.

"Commercial social networking website" means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

"Application software" means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

"Physical residential address" does not include a post office box, but may be a location that has no specific street address.

"Permanent residence" means a place where the person abides, lodges, or resides for 5 or more consecutive days.

"Professional license" means the document of authorization or certification issued by an agency of this state for a regulatory purpose, or by any similar agency in another jurisdiction for a regulatory purpose, to a person to engage in an occupation or to carry out a trade or business.

"Temporary residence" means a place where the person abides, lodges, or resides including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person's permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

"Transient residence" means a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person's permanent or temporary address.

The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

"Internet identifier" means all electronic mail, chat, instant messenger, social networking, application software, or similar names used for Internet communication, but does not include a date of birth, social security number, or personal identification number (PIN).

"Vehicles owned" means any motor vehicle which is registered, coregistered, leased, titled, or rented by a sexual predator or sexual offender; a rented vehicle that a sexual predator or sexual offender is authorized to drive; or a vehicle for which a sexual predator or sexual offender is insured as a driver. The term also includes any motor vehicle which is registered, coregistered, leased, titled, or rented by a person or persons residing at a sexual predator's or sexual offender's permanent residence for 5 or more consecutive days.

"Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power [but the term does not include traction engines, road rollers, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds].

["Motor vehicle" includes a recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.]

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], and 2016 [195 So.3d 1088], and 2018.

      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:
    Galante Romar PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1150
    Supreme Court of Florida.
    [July 19, 2018]
    Frank Tassone of Tassone, Dreicer, & Hill, LLC, Jacksonville, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order granting in part and denying in part a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. We hereby dismiss this appeal because the guilt phase issues were waived since they were not briefed by Phillips, and the penalty phase issues were mooted by the new penalty phase ordered by the trial court pursuant to Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Because there will be a new penalty phase, it is inconsequential whether Phillips's trial counsel was ineffective for failing to raise the issue of intellectual disability at the previous penalty phase. As the State argued, Phillips may raise the issue of intellectual disability at the trial court prior to his new penalty phase proceedings. See Godwin v. State , 593 So.2d 211, 212 (Fla. 1992) ("A case is 'moot' when it presents no actual controversy or when the issues have ceased to exist." (citing Black's Law Dictionary 1008 (6th ed. 1990) ) ).

It is so ordered.

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

      We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.