text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-08.
    No. SC18-1666
    Supreme Court of Florida.
    December 13, 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 for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report proposing amendments to standard criminal jury instructions 7.3 (Felony Murder - First Degree), 7.4 (Murder - Second Degree), and 10.7(d) (Throwing, Making, Placing, Projecting, or Discharging Destructive Device). The proposals were published in The Florida Bar News ; the Committee did not receive any comments.

The Committee's proposed amendments to instructions 7.3 and 7.4 derive from the Court's referral wherein the Committee was requested "to submit a report proposing amendments to the applicable homicide criminal jury instructions, in accordance with the Court's recent decision in Williams v. State , [242 So.3d 280] SC17-506 (Fla. Feb. 22, 2018)" and specifically to "consider the holding that Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), requires the jury to make the factual finding under section 775.082(1)(b), Florida Statutes (2016), as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim." The Committee also considered instruction 10.7 in light of Williams , and concluded that that decision did not implicate the instruction, though other proposed changes were made. We authorize the instructions as proposed for publication and use, and discuss the more significant changes as follows.

In Williams , the Court considered the following certified question: "Does Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), require the jury and not the trial court to make the factual finding under section 775.081(1)(b), Florida Statutes (2016), as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim?" Williams , 242 So.3d at 282. We answered the question in the affirmative, but concluded that Alleyne violations are subject to harmless error review. Id. Specifically, the Court stated in pertinent part:

Because a finding of actual killing, intent to kill, or attempt to kill "aggravates the legally prescribed range of allowable sentences," Alleyne , 570 U.S. at 115, 133 S.Ct. 2151, by increasing the sentencing floor from zero to forty years and lengthening the time before which a juvenile offender is entitled to a sentence review from fifteen to twenty-five years, this finding is an "element" of the offense, which Alleyne requires be submitted to a jury and found beyond a reasonable doubt.

Id. at 288. Based on Williams , the Committee proposes adding the following note to the trial court and instruction to instruction 7.3:

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(1)(b), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). If the jury were to find the defendant guilty of First Degree Premeditated Murder, the question of whether the defendant intended to kill or attempted to kill would inhere in that verdict. Therefore, the finding below should be made only for cases involving First Degree Felony Murder where it is alleged in the charg ing document that the defendant actually killed, intended to kill, or attempted to kill the victim. A general verdict for First Degree Murder without a specific finding of premeditation would require the paragraph below to be given.
If you find (defendant) guilty of First Degree Felony Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

We agree with this addition to instruction 7.3 because if a juvenile is found guilty of First Degree Felony Murder, it would not necessarily be evident from the verdict whether the defendant actually killed, intended to kill, or attempted to kill the victim, as required to enhance the juvenile defendant's sentence. In addition, we modify the proposed italicized paragraph above, as set forth in the appendix to the opinion, to state that whether the defendant intended to kill or attempted to kill would inhere in a First Degree Premeditated Murder case which did not involve the principals instruction . We also refer to the Committee the issue of whether a similar instruction should be given (and findings made) when the State relies on a principals theory to prove a case of First Degree Premeditated Murder.

With regard to instruction 7.4, the Committee proposes adding the following trial court note and instruction:

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(3), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). The finding below should be made only for cases involving Second Degree Murder where it is alleged in the charging document that the defendant actually killed, intended to kill, or attempted to kill the victim.
If you find (defendant) guilty of Second Degree Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

This change is in accord with Williams because the Florida Legislature created different sentence review dates depending upon whether the juvenile defendant actually killed, intended to kill, or attempted to kill the victim, applicable to the offense of Second Degree Murder if reclassified as a life felony. See § 775.082(3)(a) 5, (3)(b) 2, Fla. Stat.

Turning to instruction 10.7, the more significant changes include updating the title from "Throwing, Making, Placing, Projecting, or Discharging Destructive Device" to "Possessing, Throwing, Making, Placing, Projecting, or Discharging a Destructive Device Resulting in Death." Also, the concept of "possession," as authorized in In re Standard Jury Instructions in Criminal Cases-Report 2017-03 , 238 So.3d 182, 183 (Fla. 2018), is added.

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.

APPENDIX

7.3 FELONY MURDER - FIRST DEGREE § 782.04(1)(a), Fla. Stat.

In the absence of an express concession that the homicide was not excusable or justified, the trial judge must also read Instruction 7.1, Introduction to Homicide.

To prove the crime of First Degree Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.
Give 2a, 2b, and/or 2c as applicable.
2. a. While engaged in the commission of a[n] (felony alleged), [(defendant)] [(defendant's) accomplice] caused the death of (victim).
b. While engaged in the attempt to commit a[n] (felony alleged), [(defendant)] [(defendant's) accomplice] caused the death of (victim).
c. While escaping from the immediate scene after [committing] [attempting to commit] a[n] (felony alleged), [(defendant)] [(defendant's) accomplice] caused the death of (victim).
Give 3a if defendant was the person who actually killed the deceased.
3. a. (Defendant) was the person who actually killed (victim).
Give 3b if defendant was not the person who actually killed the deceased.
b. (Victim) was killed by a person other than (defendant); but both (defendant) and the person who killed (victim) were principals in the commission of (crime alleged).

In order to convict the defendant of First Degree Felony Murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

1. Define the crimefelony alleged. If Burglary, also define crime that was the object of burglary.
2. If 2b above is given, also immediately definegive the -attempt- instruction (see 5.1).
3. If 3b above is given, immediately give the principal instruction (3.5(a)).
4. Since the statute does not require its proof, it is not necessary to define premeditation.
54. If the underlying felony is charged as a separate count, read, at an appropriate time, instruction 3.12(d)(Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.g., Brown v. State, 959 So.2d 218 (Fla. 2007).

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(1)(b), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). If the jury were to find the defendant guilty of First Degree Premeditated Murder in a case where no principals instruction is given, the question of whether the defendant intended to kill or attempted to kill would inhere in that verdict. Therefore, the finding below should be made only for cases involving First Degree Felony Murder where it is alleged in the charging document that the defendant actually killed, intended to kill, or attempted to kill the victim. A general verdict for First Degree Murder without a specific finding of premeditation would require the paragraph below to be given.

If you find (defendant) guilty of First Degree Felony Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

Lesser Included Offenses

FIRST DEGREE (FELONY) MURDER - 782.04(1)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Second degree 782.04(2) 7.4 (depraved mind) murder Manslaughter 782.07 7.7 Aggravated 782.07(3) 7.7(a) Manslaughter (Child) Second degree 782.04(3) 7.5 (felony) murder Aggravated 782.07(2) 7.7(a) Manslaughter (Elderly Person/Disabled Adult) Aggravated 782.07(4) 7.7(a) Manslaughter (Officer/Firefighter/EMT/Paramedic) Third degree (felony) 782.04(4) 7.6 murder* Aggravated battery 784.045 8.4 Felony battery 784.041(1) 8.5 Aggravated assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1

Comments

See See Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

* In some cases, Third Degree Felony Murder may be a necessary lesser-included offense of First Degree Felony Murder. For example, Third Degree Felony Murder with Child Abuse as the underlying felony may be a necessarily lesser-included offense of First Degree Felony Murder if Aggravated Child Abuse is the underlying felony.

This instruction was adopted in 1981 and was amended in 1985, 1992 [603 So.2d 1175], 2011 [53 So.3d 1017], 2014 [146 So.3d 1110],and 2018 [236 So.3d 282], and 2018.

7.4 MURDER - SECOND DEGREE § 782.04(2), Fla. Stat.

In the absence of an express concession that the homicide was not excusable or justified, the trial judge must also read Instruction 7.1, Introduction to Homicide.

To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.
2. The death was caused by the criminal act of (defendant).
3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions.

An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and 3. is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.

An issue in this case is whether (defendant)did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. (defendant) was, in fact, so provoked and did not cool off before [he] [she] committed the act that caused the death of (victim).

If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of Second Degree Murder.

Give if the defendant was a juvenile at the time of the crime alleged. § 775.082(3), Fla. Stat. Williams v. State, 242 So.3d 280 (Fla. 2018). The finding below should be made only for cases involving Second Degree Murder where it is alleged in the charging document that the defendant actually killed, intended to kill, or attempted to kill the victim.

If you find (defendant) guilty of Second Degree Murder, you must also determine whether the State proved beyond a reasonable doubt, that [he] [she] [actually killed] [intended to kill] [or] [attempted to kill] (victim).

Lesser Included Offenses

SECOND DEGREE (DEPRAVED MIND) MURDER - 782.04(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Manslaughter 782.07 7.7 Aggravated 782.07(3) 7.7(a) Manslaughter (Child) Aggravated 782.07(2) 7.7(a) Manslaughter (Elderly Person/Disabled Adult) Aggravated 782.07(4) 7.7(a) Manslaughter (Officer/Firefighter/ EMT/Paramedic) Third degree (felony) 782.04(4) 7.6 murder Vehicular homicide 782.071 7.9 (Nonhomicide lessers) 777.04(1) 6.4 Attempted Second Degree Murder Aggravated Battery 784.045 8.4 Attempted 782.07 and 6.6 Manslaughter by Act 777.04 Felony battery 784.041(1) 8.5 Aggravated Assault 784.021 8.2 Battery 784.03 8.3 Culpable negligence 784.05(2) 8.9 Culpable negligence 784.05(1) 8.9 Assault 784.011 8.1

Comments

SeeSee Instruction 7.13 for the § 782.065, Fla. Stat., reclassification when the victim is a law enforcement officer, correctional officer, etc.

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84], 2008 [994 So.2d 1038], 2014 [137 So.3d 995],and 2018 [236 So.3d 282], and 2018.

10.7(d) POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN DEATH § 790.161(4), Fla._Stat.

In the absence of an express concession that the homicide was not excusable or justified, the trial judge must also read Instruction 7.1, Introduction to Homicide.

To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully and unlawfully
[made]
[possessed]
[threw]
[placed]
[projected]
[discharged]
[attempted to [make] [possess] [throw] [place] [project]
[discharge]]
a destructive device.
2. The act resulted in the death of another person.

Definition A "_ "-destructive device-""_ is defined as (adapt from § 790.001(4), Fla._Stat., as required by the allegations).

"Willfully" means intentionally, knowingly, and purposely.

Possession. Give if applicable.

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

Give if applicable.

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

Joint possession. Give if applicable.

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

Lesser Included Offenses

POSSESSING, THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING DESTRUCTIVE DEVICE - 790.161(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Possessing, throwing, 790.161(13) 10.7(ac) making, placing, projecting, or discharging destructive device resulting in bodily harm Possessing, throwing, 790.161(31) 10.7(ca) making, placing, projecting, or discharging destructive device Possessing, throwing, 790.161(2) 10.7(b) making, placing, projecting, or discharging destructive device, etc. Aggravated assault 784.021 8.2 Assault 784.011 8.1

Comment

This instruction was adopted in 1992 and amended in 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.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-10.
    No. SC18-1716
    Supreme Court of Florida.
    December 13, 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. The Committee asks that the Court authorize amended standard instructions 10.20 ( [Care] [Custody] [Possession] [Control] of [a Firearm] [Ammunition] While a Final Injunction for [Domestic Violence] [Stalking] [Cyberstalking] is in Effect), 14.8 (Unlawful Possession of a Stolen [Credit] [Debit] Card), 16.11 ( [Possession] [Control] [Intentional Viewing] of Material Including Sexual Conduct by a Child), 20.18(a) (Unlawful Possession of the Personal Identification Information of Another Person), 22.10 (Possessing a Lottery Ticket), 22.11 (Possessing Rundown Sheets, Etc.), and 22.15 ( [Manufacturing] [Owning] [Storing] [Keeping] [Possession of] [Permitting the Operation of] [Selling] [Leasing] [Transporting] a Slot Machine) for publication and use.

The Committee filed its report after publishing the proposals in The Florida Bar News . No comments were received by the Committee. We authorize for publication and use instructions 14.8, 16.11, and 20.18 as proposed. Instruction 22.15 is authorized for publication and use as proposed, with a correction to the title and statutory citations, and instructions 10.20, 22.10, and 22.11 are authorized for publication and use as modified. The more significant amendments to the instructions are discussed below.

First, consistent with this Court's decision in In re Standard Jury Instructions in Criminal Cases-Report 2017-03 , 238 So.3d 182, 183 (Fla. 2018), the concept of "possession" is added to each of the instructions and prior language is deleted.

Next, with regard to instruction 10.20, we amend the paragraph defining "firearm" to read as follows: "[The term 'firearm' does not include an antique firearm unless the antique firearm is used in the commission of a nother crime.]" However, without explanation for the proposal, we decline to delete the definition for "care" and "custody," which terms are included in the statutory provision defining the offense of "[p]ossession of firearm or ammunition prohibited when person is subject to an injunction against committing acts of domestic violence, stalking, or cyberstalking." See § 790.233(1), Fla. Stat (2018).

Lastly, in instructions 22.10, 22.11, and 22.15, on our own motion, we replace the references to a repealed statute, section 849.161, with section 546.10, Florida Statutes. See ch. 2015-93, §§ 1, 3, Laws of Fla. In addition, in instruction 22.15, we also correct the citation to section 849.094(8)(b), Florida Statutes, to properly cite for the proposition that "[c]ompliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device."

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.

APPENDIX

10.20 [CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

§ 790.233(1), Fla. Stat.

To prove the crime of (crime charged),the State must prove the following three elements beyond a reasonable doubt :

1. A judge issued a final injunction for protection against [domestic violence] [stalking] [cyberstalking] against (defendant).
2. The final injunction had been served upon (defendant) or (defendant) had acknowledged receipt.
3. While the final injunction was in force and effect, (defendant) had [ammunition] [a firearm] in [his] [her] care, custody, possession, or control.

Definitions. Give as applicable.

Fla. Stat. § 790.001(6) , Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon, any firearm muffler or firearm silencer; any destructive device; any machine gun. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a nother crime. ]See Fla. Stat. § 790.001(1) , Fla. Stat. for the definition of antique firearm.

Fla. Stat. § 790.001(4) , Fla. Stat.

"Destructive device" means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

"Destructive device" does not include:

a. A device which is not designed, redesigned, used, or intended for use as a weapon;
b. Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;
c. Any shotgun other than a short-barreled shotgun; or
d. Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.

Fla. Stat. § 790.001(19) , Fla. Stat.

"Ammunition" means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer;
b. One or more projectiles, one or more bullets, or shot;
c. Gunpowder.

"Care" and "custody" mean immediate charge and control exercised by a person over the named item. The terms care, custody, and control may be used interchangeably.

Possession.

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

Give if applicable.

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

Joint possession.

Possession of [a firearm] [ammunition] may be sole or joint, that is, two or more persons may possess it.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the object and

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

Constructive possession.

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

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

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

Joint possession.

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

Inferences.

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

If you find that (defendant):

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

you may infer that [he] [she] was aware of the presence of the [ammunition] [firearm] and had the ability to control [it] [them].

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

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

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

Lesser Included Offenses

[CARE] [CUSTODY] [POSSESSION] [CONTROL] OF [A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT 790.233(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comment s

This crime does not apply to a state or local officer as defined inFla. Stat. § 943.10(14),Fla. Stat., holding an active certification, who received or possessed a firearm or ammunition for use in performing official duties on behalf of the officer's employing agency, unless otherwise prohibited by the employing agency.

This instruction was adopted in 2014 [148 So.3d 1204] and amended in 2018.

14.8 UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD

§ 817.60(8), Fla. Stat.

To prove the crime of Unlawful Possession of a Stolen [Credit] [Debit] Card, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [received] [retained custody of] a [credit] [debit] card.
2. The [credit] [debit] card had been taken from the [possession] [custody] [control] of another without the cardholder's consent.
3. The (defendant) knew the [credit] [debit] card had been taken from the [possession] [custody] [control] of another without the cardholder's consent.
4. At the time (defendant) [possessed] [received] [retained] the [credit] [debit] card, [he] [she] had the intent to impede the recovery of the [credit] [debit] card by the cardholder.

Definitions.

§ 817.58(4), Fla. Stat.

"Credit card" means any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, electronic benefits transfer (EBT) card, or debit card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit or for use in an automated banking device to obtain any of the services offered through the device.

Possession.

To prove that a person "possessed" a [credit] [debit] card, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [credit] [debit] card; and b) intentionally exercised control over it.

Give if applicable.

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

Joint possession.

Possession of [credit] [debit] card may be sole or joint, that is, two or more persons may possess it.

To "possess" means to have personal charge of or exercise the right of ownership, management, or control over an object.

Possession may be actual or constructive.

Actual possession means

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

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when it is not in a place over which the person has control.

Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.

If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant's) presence, and (2) has control over the object.

Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.

Inference of knowledge of presence. A special instruction may be necessary if the object is in a common area, in plain view, and in the presence of the defendant, who is a joint owner or joint occupant of the place in which the object was located. Duncan v. State, 986 So.2d 653 (Fla. 4thDCA 2008).

If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.

Lesser Included Offenses

UNLAWFUL POSSESSION OF A STOLEN [CREDIT] [DEBIT] CARD - 817.60(8) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04 5.1

Comments

Pursuant to § 817.60(8), Fla. Stat., it is not a crime for a retailer or retail employee, in the ordinary course of business, to possess, receive, or return a credit card or debit card that the retailer or retail employee does not know was stolen or to possess, receive, or retain a credit card or debit card that the retailer or retail employee knows is stolen for the purpose of an investigation into the circumstances regarding the theft of the card or its possible unlawful use.

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

16.11 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD

§ 827.071(5)(a), Fla. Stat.

To prove the crime of [Possession] [Control] [Intentional Viewing] of Material including Sexual Conduct by a Child, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [knowingly possessed] [knowingly controlled] [intentionally viewed] a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].
2. The [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included, in whole or in part, sexual conduct by a child less than 18 years of age.
3. (Defendant) knew that the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included sexual conduct by a child less than 18 years of age.

Definitions. Give if applicable.

§ 827.071(1)(h), Fla. Stat.

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

Give if applicable.

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

Give as applicable. § 827.071(1)(a), Fla. Stat.

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

§ 827.071(1)(e), Fla. Stat.

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

§ 827.071(1)(f), Fla. Stat.

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

§ 827.071(1)(g), Fla. Stat.

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

§ 827.071(1)(j), Fla. Stat.

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

§ 827.071(1)(b), Fla. Stat.

"Intentionally view" means to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.

Possession.

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

Give if applicable.

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

Joint possession. Give if applicable.

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

Lesser Included Offenses

[POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD - § 827.071(5)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

Effective October 1, 2012, if the photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes sexual conduct by more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense.

This instruction was adopted in 2008 [995 So.2d 489] and amended in 2013 [131 So.3d 720] and 2018.

20.18(a) UNLAWFUL POSSESSION OF THE PERSONAL IDENTIFICATION INFORMATION OF ANOTHER PERSON

§ 817.5685, Fla. Stat.

To prove the crime of Unlawful Possession of the Personal Identification Information of Another Person, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [intentionally] [or] [knowingly] possessed the personal identification information of (victim).
2. (Defendant) did not have authorization to do so.

Possession.

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

A person has actual possession of an item when he or she is aware of the presence of the item and [either] has physical control over the item [or the item is so close as to be within ready reach and is under the control of the person].

A person has constructive possession of an item when he or she is not in actual possession of the item but is aware of the presence of the item, the item is in a place over which he or she has control, and he or she has the ability to control the item.

Give if applicable.

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

Joint possession.

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

Inferences.

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

If you find that (defendant) :

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

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

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

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

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

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

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

Joint Possession.

Possession of personal identification information may be sole or joint, that is, two or more persons may possess the personal identification information.

Enhancement. Give if applicable. § 817.5685(3)(b)2, Fla. Stat.

If you find (defendant)guilty of Unlawful Possession of the Personal Identification Information of Another Person, you must then determine whether the State proved beyond a reasonable doubt that [he] [she] [intentionally] [or] [knowingly], and without authorization, possessed the personal identification information of five or more persons.

Definitions.

§ 817.5685(1), Fla. Stat.

"Personal identification information" means a person's social security number, official state-issued or United States-issued driver license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, and medical records.

Give if applicable. § 817.5685(2), Fla. Stat.

The personal identification information can be in any form, including, but not limited to, mail, physical documents, identification cards, or information stored in digital form.

Give if applicable. Personal identification of five or more individuals. § 817.5685(3)(b)1 . , Fla. Stat.

Proof that (defendant)used or was in possession of the personal identification information of five or more individuals, unless satisfactorily explained, gives rise to an inference that (defendant)used or was in possession of the personal identification information knowingly and intentionally without authorization.

Affirmative defenses. Give as applicable. § 817.5685(4) and § 817.5685(5), Fla. Stats.

§ 817.5685, Fla. Stat., and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defenses 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 affirmative defenses 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.

It is a defense to the crime of Unlawful Possession of the Personal Identification Information of Another Person if, at the time of the possession, (defendant):

a. was under the reasonable belief that such possession was authorized by law or by the consent of (victim).
b. obtained (victim's) personal identification information from a forum or resource that was open or available to the general public or from a public record.
c. was the parent or legal guardian of (victim) and (victim) was a child.
d. was appointed by a court to act as the guardian of (victim) and was authorized to possess (victim's) personal identification information and make decisions regarding access to that personal identification information.
e. was an employee of a governmental agency and possessed (victim's) personal identification information in the ordinary course of business.
f. was a person engaged in a lawful business and possessed (victim's) personal identification information in the ordinary course of business.
g. was a person who found a card or document issued by a governmental agency that contained (victim's) personal identification information and [he] [she] took reasonably prompt action to return that card or document to its owner, to the governmental agency that issued the card or document, or to a law enforcement agency.

Lesser Included Offense

UNLAWFUL POSSESSION OF THE PERSONAL IDENTIFICATION INFORMATION OF ANOTHER PERSON - 817.5685 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2016 [190 So.3d 614] and amended in 2018.

22.10 POSSESSING A LOTTERY TICKET

§ 849.09(1)(h), Fla. Stat.

To prove the crime of Possessing a Lottery Ticket, the State must prove beyond a reasonable doubt that:

(Defendant)had in [his] [her] possession a lottery ticket or a coupon, share, or token evidencing some interest in a live lottery yet to be played or in a lottery that has already been played.

Definitions.

Lottery.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A "lottery" has three elements: (1) consideration - that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.

A "bet" is when money or other property is risked, pledged, wagered, or staked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result.

A "thing ventured" is when something other than money or property is risked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result, which includes but is not limited to the time, inconvenience, and effort required to attend or participate, at the expense of foregone alternatives and other opportunities.

A "prize by lot or chance" is when the award or winning prize is determined by a chance or uncertain or contingent event, the outcome of which is not influenced or controlled by a participant's skill, such as by drawing numbers, entries, cards, or by rolling dice.

Lottery ticket, coupon, or share.

A "lottery ticket, coupon, or share" is any paper, token, or thing that represents the right of the possessor to receive all or any part of a prize awarded or to be awarded in the operation of a lottery. It is not necessary that the rights of the holder be written or printed in plain language. It is sufficient if the ticket, coupon, share, or token by any manner known to those familiar with a particular lottery being played indicates or represents the rights of its owner or possessor.

Possession.

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

Actual possession.

Actual possession means the person is aware of the presence of the object and

d. the object is in the hand of or on the person, or
e. the object is in a container in the hand of or on the person, or
f. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.

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

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

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

Joint possession.

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

Inferences.

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

If you find that (defendant) :

d. had direct physical custody of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] or
e. was within ready reach of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was under [his] [her] control, or
f. had exclusive control of the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located,

you may infer that [he] [she] was aware of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and had the ability to control [it] [them].

If (defendant) did not have exclusive control over the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located, you may not infer [he] [[she] had knowledge of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] or the ability to control [it] [them], in the absence of other incriminating evidence.

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

However, you may infer that (defendant) knew of the presence of the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] and had the ability to control [it] [them] if [he] [she] had joint control over the place where the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located, and the [lottery ticket] [coupon, share, or token evidencing some interest in a lottery] was located in a common area in plain view and in the presence of the defendant.

To prove (defendant) possessed a [lottery ticket] [coupon, share, or token], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [lottery ticket] [coupon, share, or token]; and b) intentionally exercised control over that [lottery ticket] [coupon, share, or token].

Give if applicable.

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

Joint possession. Give if applicable.

Possession of a [lottery ticket] [coupon, share, or token] may be sole or joint, that is, two or more persons may possess a [lottery ticket] [coupon, share, or token].

If there is evidence of an exception referred to at the end of § 849.09(1), Fla. Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161 546.10,Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So.2d 550, 553 (Fla. 2d DCA 1963) ("[T]hings other than money can constitute a sufficient consideration, moving from the participants in such scheme to the operators without any cash outlay being made.") citing toDorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 1938) ("The consideration required to support a simple contract need not be money or anything having a monetary value, but any consist of either a benefit to the promisor or a detriment to the promisee.") andLittle River Theatre Corp. v. State, 185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater offering a "bank night" drawing satisfied the element of consideration, even though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015 [176 So.3d 938] and 2018.

22.11 POSSESSING RUNDOWN SHEETS, ETC.

§ 849.09(1)(k), Fla. Stat.

To prove the crime of Possessing [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) had in [his] [her] possession [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia].
2. These articles were designed for use, directly or indirectly, in gambling or in the conduct of a lottery.

Definitions.

Gambling.

"Gambling" is a game of chance in which the participant risks money or property on the outcome with the expectation of gaining or losing as a result of the game.

Lottery.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A "lottery" has three elements: (1) consideration - that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.

A "bet" is when money or other property is risked, pledged, wagered, or staked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result.

A "thing ventured" is when something other than money or property is risked by a participant on the outcome of a game, contest, or uncertain or contingent event, with the expectation of gaining or losing as a result, which includes but is not limited to the time, inconvenience, and effort required to attend or participate, at the expense of foregone alternatives and other opportunities.

A "prize by lot or chance" is when the award or winning prize is determined by a chance or uncertain or contingent event, the outcome of which is not influenced or controlled by a participant's skill, such as by drawing numbers, entries, cards, or by rolling dice.

Possession.

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

Actual possession.

Actual possession means the person is aware of the presence of the object and

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

Constructive possession.

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

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

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

Joint possession.

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

Inferences.

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

If you find that (defendant) :

a. had direct physical custody of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia], or

b. was within ready reach of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] and the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were under [his] [her] control, or

c. had exclusive control of the place where the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located,

you may infer that [he] [she] was aware of the presence of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] and had the ability to control them.

If (defendant) did not have exclusive control over the place where the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located, you may not infer [he] [[she] had knowledge of the presence of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] or the ability to control them, in the absence of other incriminating evidence.

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

However, you may infer that (defendant) knew of the presence of the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia]] and had the ability to control them if [he] [she] had joint control over the place where the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located, and the [run down sheets] [tally sheets] [or] [other papers, records, instruments, or paraphernalia] were located in a common area in plain view and in the presence of the defendant.

To prove (defendant) possessed [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia]; and b) intentionally exercised control over those [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia],

Give if applicable.

Control can be exercised over Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], whether they are carried on a person, near a person, or in a completely separate location. Mere proximity to [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], does not establish that the person intentionally exercised control over them in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], or the present ability to direct their control by another.

Joint possession. Give if applicable.

Possession of [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], may be sole or joint, that is, two or more persons may possess [Run Down Sheets] [Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia].

If there is evidence of an exception referred to at the end of § 849.09(1), Fla. Stat., in § 849.092, Fla. Stat., § 849.093I, Fla. Stat., § 849.0935, Fla. Stat., or in § 849.161 546.10,Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So.2d 550, 553 (Fla. 2d DCA 1963) ("[T]hings other than money can constitute a sufficient consideration, moving from the participants in such scheme to the operators without any cash outlay being made.") citing toDorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 1938) ("The consideration required to support a simple contract need not be money or anything having a monetary value, but any consist of either a benefit to the promisor or a detriment to the promisee.") andLittle River Theatre Corp. v. State, 185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater offering a "bank night" drawing satisfied the element of consideration, even though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015 [176 So.3d 938] and 2018.

22.15 [MANUFACTU R ING] [OWNING] [STORING] [KEEPING] [POSSESSION OF] [PERMITTING THE OPERATION OF] [SELLING] [LEASING] [TRANSPORTING] A SLOT MACHINE

§ 849.15(1)(a) and (b), Fla. Stat.

To prove the crime of (crime charged), the State must prove the following element beyond a reasonable doubt:

Give as applicable.

(Defendant)

a. [manufactured] [owned] [stored] [kept] [possessed] [sold] [leased] [let on shares] [lent] [gave away] [transported] [exposed for sale or lease] any slot machine or device [or any part of a slot machine or device].
b. offered to [sell] [rent] [lease] [let on shares] [lend] [give away] any slot machine or device [or any part of a slot machine or device].
c. permitted the operation of any slot machine or device [or any part of a slot machine or device].
d. permitted any slot machine or device [or any part of a slot machine or device] to be [placed] [maintained] [used] [kept] in a [room] [space] [building] owned, leased, or occupied by [him] [her] or under [his] [her] management or control.
e. [or permitted to be made] an agreement with another, pursuant to which the user of any slot machine or device, may become entitled to receive [money] [credit] [allowance] [a thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]].

§ 849.16, Fla. Stat.

A "slot machine or device" is a machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or of any other outcome unpredictable by the user, may:

a) receive or become entitled to receive any piece of money, credit, allowance, or thing of value; or
b) receive or become entitled to receive any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or
c) secure additional chances or rights to use such machine, apparatus, or device, even though the device or system may be available for free play, or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.

Give if applicable. §§ 849.16(1)(b), 551.102(8), Fla. Stats.

A "slot machine" includes, but is not limited to, devices regulated as slot machines under chapter 551 of Florida Statutes. Under chapter 551, a "slot machine" means any mechanical or electrical contrivance, terminal that may or may not be capable of downloading slot games from a central server system, machine, or other device that, upon insertion of a coin, bill, ticket, token, or similar object or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both, may deliver or entitle the person or persons playing or operating the contrivance, terminal, machine, or other device to receive cash, billets, tickets, tokens, or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually. The term includes associated equipment necessary to conduct the operation of the contrivance, terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a "coin-operated amusement machine" as defined in § 212.02(24), Fla. Stat. or an amusement game or machine as described in § 849.161 546.10 , Fla. Stat.] Instruct on § 212.02(24), Fla. Stat. or § 849.161 546.10,Fla. Stat. as applicable.

Give if applicable. § 849.094(8)(a b) , Fla. Stat.

Compliance with the rules of the Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine or Device.

Give if applicable. § 849.16(3), Fla. Stat.

You are permitted to infer that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

Possession.

To prove (defendant) possessed a slot machine or device, [or any part of a slot machine or device,] the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the slot machine or device [or any part of a slot machine or device]; and b) intentionally exercised control over that slot machine or device [or any part of a slot machine or device].

Give if applicable.

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

Joint possession. Give if applicable.

Possession of a slot machine or device [or any part of a slot machine or device] may be sole or joint, that is, two or more persons may possess a slot machine or device [or any part of a slot machine or device].

Lesser Included Offenses

[POSSESSION] [PERMITTING THE OPERATION] OF A SLOT MACHINE - 849.15(1)(a) and (b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

It is not necessary for the State to prove that the slot machine or device was used for gambling.See Eccles v. Stone, 183 So. 628 (Fla. 1938);Dept. of Business Regulation v. Rains, 477 So.2d 1029 (Fla. 2d DCA 1985).

It is a defense to Possession of a Slot Machine if the device is an antique slot machine and is not being used for gambling. An antique slot machine is one which was manufactured at least 20 years prior to the prosecution.See See § 849.235, Fla. Stat.

This instruction was adopted in 2013 [122 So.3d 302] and amended in 2014 [148 So.3d 1204] and 2018.

      We have jurisdiction. See art. V, § 2(a), Fla. Const.

      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.


author: LAWSON, J.

text:
    STATE of Florida, Petitioner, v. Dazarian Cordell LEWARS, Respondent.
    No. SC17-1002
    Supreme Court of Florida.
    December 13, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Suzanne Beschard, Bureau Chief, and Lisa Martin, Assistant Attorney General, Tampa, Florida, for Petitioner
    Howard L. Dimmig, II, Public Defender, Matthew Overpeck, and Maureen E. Surber, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, Florida, for Respondent
   LAWSON, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Lewars v. State , 42 Fla. L. Weekly D1098, ---- So.3d ----, 2017 WL 1969691 (Fla. 2d DCA May 12, 2017), which certified conflict with the decisions in State v. Wright , 180 So.3d 1043 (Fla. 1st DCA 2015), Taylor v. State , 114 So.3d 355 (Fla. 4th DCA 2013), and Louzon v. State , 78 So.3d 678 (Fla. 5th DCA 2012). The certified conflict concerns the construction of one element of the definition of "prison releasee reoffender" provided in section 775.082(9)(a)1., Florida Statutes (2012). The part of the statute at issue requires the defendant, within the three years preceding his or her commission of a qualifying offense, to have been "released from a state correctional facility operated by the Department of Corrections or a private vendor." § 775.082(9)(a)1. The First and Fifth District Courts of Appeal in Wright and Louzon concluded that this language is satisfied when a defendant is released from a county jail after serving a sentence entirely in the county jail where the sentence would have required transfer to a Florida prison but for the accumulation of jail credit. Wright , 180 So.3d at 1045-46 ; Louzon , 78 So.3d at 680-81. The Second District in this case disagreed with this conclusion and reached the opposite result from the First and Fifth Districts on essentially identical facts.

Lewars , 42 Fla. L. Weekly at D1099-1100, --- So.3d at ---- - ----, 2017 WL 1969691. The Second District also disagreed with the Fourth District Court of Appeal's decision in Taylor , which construes similar language from the same statute involving release from a "correctional institution of ... the United States," applies its construction to a defendant's release from a county jail after being temporarily housed there, and reaches a result consistent with Wright and Louzon . Id. ; Taylor , 114 So.3d at 355-56.

We have jurisdiction due to the certification of conflict. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of the Second District in Lewars and hold that release from a county jail under the circumstances of this case does not satisfy the language of section 775.082(9)(a)1. We therefore disapprove the decisions of the First, Fourth, and Fifth Districts in Wright , Taylor , and Louzon .

FACTS

Dazarian Cordell Lewars was convicted of burglary of an unoccupied dwelling. Lewars , 42 Fla. L. Weekly at D1098, --- So.3d at ----, 2017 WL 1969691. For this offense, Lewars was sentenced to a mandatory minimum term of fifteen years' imprisonment under section 775.082(9), the prison releasee reoffender (PRR) statute, over his objection that the PRR statute does not apply to him. Id. at D1099, at ----. On appeal, the Second District agreed with Lewars and reversed his PRR sentence, holding that Lewars does not qualify as a PRR because he was not "released from a state correctional facility operated by the Department of Corrections [ (DOC) ] or a private vendor" within the three years preceding the burglary at issue, as required by the pertinent language of the PRR statute. Id. at D1099-1101, at ---- - ----.

To support PRR sentencing, the trial court relied on the fact that Lewars had been released from a twenty-four-month sentence within the three years preceding the burglary. Id. The legal issue concerning the applicability of the PRR statute centers on whether Lewars' release from that sentence satisfies the "released from" language of the PRR statute, given that Lewars served his prior twenty-four-month sentence entirely in the county jail, rather than in prison, due to his accumulation of 766 days' jail credit while he awaited a violation-of-probation hearing and sentencing. Id. at D1099, at ----.

Although the sentencing order for the prior case committed Lewars to the custody of the DOC for a prison sentence, Lewars was never physically transferred to a prison facility. Id. After sentencing in that case, the local sheriff's office observed that Lewars had been sentenced to time served and contacted the DOC for instructions. Id. Upon receiving confirmation from the DOC that Lewars was entitled to release, the local sheriff's office had Lewars sign a "prison release form" sent by the DOC and then released him directly from the county jail. Id. DOC records state that Lewars was released from the "Central Office." However, it is undisputed that "Lewars never actually set foot in a DOC facility before committing the burglary" for which he was given a PRR sentence. Id.

In reversing Lewars' PRR sentence, the Second District relied on the plain, unambiguous language of the PRR statute, reasoning as follows:

The pertinent language of section 775.082(9)(a)(1)(q) defines a PRR as "any defendant who commits, or attempts to commit ... burglary of a dwelling ... within 3 years after being released from a state correctional facility operated by the Department of Cor rections or a private vendor ...." (Emphasis added.) In requiring release from a DOC "facility"-rather than, for example, from DOC "custody" or simply "by DOC"-PRR status plainly contemplates release from a physical plant operated by the DOC (or a private vendor).[n.2]
[n.2] Webster's New World College Dictionary 485 (3d ed. 1996), which was published near the time that the legislature created the PRR designation, see ch. 97-239, § 2, at 4398-4401, 4404, Laws of Fla. (effective May 30, 1997), defines a "facility," in pertinent part, as "a building, special room, etc., that facilitates or makes possible some activity." See also Sanders v. State , 35 So.3d 864, 871 (Fla. 2010) ("When a word in a statute is not expressly defined, it is ' "appropriate to refer to dictionary definitions ..." in order to ascertain the plain and ordinary meaning' of the word." (omission in original) (quoting Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc. , 3 So.3d 1220, 1233 (Fla. 2009) ) ).
There is no dispute that, less than two months before committing the qualifying PRR offense of burglary of a dwelling, Lewars was released from a county jail having never spent a moment in a DOC facility. Consequently, under the unambiguous language of the statute, he does not qualify as a PRR.

Id. at D1099, at ----.

The Second District recognized that "the three other district courts of appeal that have addressed the issue would have held that Lewars does qualify as a PRR" and, accordingly, certified conflict with the three decisions establishing this point: Wright , Taylor , and Louzon . Id. at D1099, D1101, at ----, ----. The Second District noted that these three cases, like the case before it, all involved defendants who had been released from either federal or DOC custody while housed in county jails and that these courts had found the PRR statute applicable under a theory of "constructive release" from qualifying facilities. Id. at D1100, at ----. Rejecting these holdings, the Second District pointed out that the plain language of the statute requires release from a qualifying "facility," not release from qualifying "custody." Id. The Second District also disputed the proposition-advanced by the Fifth District, embraced by the Fourth District, and accepted by one judge in the First District-that the custody-based construction of the statute is appropriate under the absurdity exception to the plain-language doctrine. Id. at D1100-01, at ---- - ----. We accepted review to resolve the certified conflict.

ANALYSIS

The certified conflict concerns an issue of statutory construction, which we review de novo. See Lopez v. Hall , 233 So.3d 451, 453 (Fla. 2018) ; State v. Miller , 227 So.3d 562, 563 (Fla. 2017). To answer a question of statutory construction, courts must first look to the statute's language, Miller , 227 So.3d at 563, considering its words in the context of the entire section rather than in isolation, Thompson v. State , 695 So.2d 691, 692 (Fla. 1997). If the statutory language is clear and unambiguous, the court must recognize the statute's plain meaning and, therefore, need not employ any other rules of statutory construction. Miller , 227 So.3d at 563 (quoting Daniels v. Fla. Dep't of Health , 898 So.2d 61, 64 (Fla. 2005) ); Lopez , 233 So.3d at 453.

The plain-language approach is required because the courts of this state lack the "power to construe an unambiguous statute in a way which would extend, modify, or limit[ ] its express terms or its reasonable and obvious implications." Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams , 212 So.2d 777, 778 (Fla. 1st DCA 1968) ). Such a construction "would be an abrogation of legislative power." Id. ; see art. II, § 3, Fla. Const. Thus, "[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." St. Petersburg Bank & Trust Co. v. Hamm , 414 So.2d 1071, 1073 (Fla. 1982) (quoting Van Pelt v. Hilliard , 75 Fla. 792, 78 So. 693, 694 (1918) ).

Section 775.082(9)(a)1. defines "prison releasee reoffender" as "any defendant who commits, or attempts to commit" any qualifying offense (as enumerated in the statute) within three years after a certain event, described in the statute as follows:

being released from a state correctional facility operated by the Department of Corrections or a private vendor or ... being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.[ ]

The district courts disagree over whether a defendant is "released from a state correctional facility operated by the Department of Corrections or a private vendor" when the defendant is physically released from a county jail after having been committed to the legal custody of the Department of Corrections but not physically taken to a facility operated by the Department of Corrections. Compare Lewars , 42 Fla. L. Weekly at D1099-1100, --- So.3d at ---- - ----, 2017 WL 1969691, with Wright , 180 So.3d at 1044-46, and Louzon , 78 So.3d at 680-81 ; cf. Taylor , 114 So.3d at 355-56 (construing the similar language pertaining to federal institutions consistently with the decisions in Louzon and Wright ). In support of the proposition that it is the legal, rather than physical, custody that matters, the State argues that release from a "prison sentence," as opposed to a prison facility, is sufficient to satisfy the language of this provision.

However, the language at issue unambiguously supports the conclusion reached by the Second District, that release from a county jail does not satisfy the "released from" element of statute's PRR definition. This language addresses the defendant's release from a "facility," not from the legal custody of a particular entity and not from a particular sentence length, and it requires that that facility be one "operated by the Department of Corrections or a private vendor." A county jail is not "operated by the Department of Corrections or a private vendor." See Hopkins v. State , 105 So.3d 470, 474 (Fla. 2012) ("A 'jail' is a detention center used by local governments for persons who are awaiting trial or have been convicted of misdemeanors." (citing Black's Law Dictionary , 910 (9th ed. 2009) ). Therefore, a defendant's release from a county jail is not sufficient to satisfy the plain language of section 775.082(9)(a)1.

The surrounding language in section 775.082 confirms the plain meaning of the specific provision at issue, showing that release from a particular type of facility, namely a prison or its equivalent-and not a county jail-is a necessary component of the PRR definition. The PRR statute's focus on the facility where a defendant served a prior sentence begins in the title of section 775.082, which notes that this section provides "mandatory minimum sentences for certain reoffenders previously released from prison." That focus is also manifested in the label that the statute gives to a defendant who qualifies for these mandatory minimum sentences: "prison releasee reoffender." § 775.082(9)(a)1. This label, like the title of the section, references release from prison, not jail, and not a "prison sentence."

Continuing its focus on prisons as facilities, the PRR statute makes release from "a correctional institution" of certain other jurisdictions a way to satisfy the "released from" component of the PRR definition. § 775.082(9)(a)1. Specifically, it provides the following as the alternative "released from" event:

being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

§ 775.082(9)(a)1. "Correctional institution" is commonly understood to refer to a facility within a prison system, particularly in Florida. Cf. Gaulden v. State , 195 So.3d 1123, 1128-29 (Fla. 2016) (Canady, J., concurring in result) (relying on the common understanding of a particular phrase to decide its meaning). Further, the jurisdictions listed in section 775.082(9)(a)1. as the categories of the governmental entities to which the referenced "correctional institution" must belong identify sovereign entities, rather than subdivisions of the sovereigns. The fact that the correctional institutions referenced in this portion of the definition must be "of" the highest governmental divisions of the jurisdictions at issue shows that this portion of the statute is concerned with identifying facilities that are equivalent to prisons in Florida's criminal justice system. See § 775.082(9)(a)1. The requirement of section 775.082(9)(a)1. that incarceration in a "correctional institution" of another sovereign jurisdiction be "for an offense for which the sentence is punishable by more than 1 year in this state" is limiting language that further ensures that the institutions of other jurisdictions be sufficiently equivalent to Florida prisons before incarceration in those facilities can satisfy the "released from" element of the PRR definition.

As another indication of a focus on prison, as opposed to jail, the PRR statute states that "[i]t is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection." § 775.082(9)(d)1. This direct statement of legislative intent-the only one in the statute-focuses on "release[ ] from prison," which is a type of facility, rather than release from a prison-length sentence.

That the length of the sentence is not a determining factor under section 775.082(9)(a)1. is illustrated by contrasting that provision with the following alternative definition provided in the PRR statute:

"Prison releasee reoffender" also means any defendant who commits or attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r. while the defendant was serving a prison sentence or on escape status from a state correctional facility operated by the Department of Corrections or a private vendor or while the defendant was on escape status from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

§ 775.082(9)(a)2. This alternative PRR definition shows that the Legislature knew how to make the prison sentence, as opposed to the facility, the focus of the definitional inquiry, if the Legislature intended to do so. See Cason v. Fla. Dep't of Mgmt. Servs. , 944 So.2d 306, 315 (Fla. 2006) ("[W]e have pointed to language in other statutes to show that the Legislature 'knows how to' accomplish what it has omitted in the statute in question."); cf. § 775.084(1)(a)2.b., (b)2.b., (c)2.b., (d)2.b., Fla. Stat. (2018) (defining "[h]abitual felony offender," "[h]abitual violent felony offender," "[t]hree-time violent felony offender," and "[v]iolent career criminal" in part by reference to the defendant's prior "release from a prison sentence").

For the foregoing reasons, we conclude that to satisfy the "released from" aspect of the PRR definition based on release from "a state correctional facility operated by the Department of Corrections or a private vendor," a defendant must have been incarcerated in and physically released from a prison, and not a county facility operated by the local government, within the statutory period. We agree with the observation made below that, in reaching a different or inconsistent conclusion, the courts in Wright , Taylor , and Louzon "skipped the 'plain language' step of the statutory-construction analysis" and injected into the PRR statute words, such as "constructive release," that "simply are not there." Lewars , 42 Fla. L. Weekly at D1100, --- So.3d at ----, 2017 WL 1969691.

Contrary to the suggestions of the courts in Wright , Taylor , and Louzon , the absurdity doctrine does not justify recognizing release from the legal, as opposed to physical, custody of the DOC (or, in the case of Taylor , the federal government) as a means of satisfying the "released from" component of the PRR definition. Although the Court has stated that "a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion," courts must have "cogent reasons for believing that the letter [of the law] does not accurately disclose the [legislative] intent" before departing from it. Holly , 450 So.2d at 219 (citing Johnson v. Presbyterian Homes of Synod of Fla., Inc. , 239 So.2d 256 (Fla. 1970), and then quoting State ex rel. Hanbury v. Tunnicliffe , 98 Fla. 731, 124 So. 279, 281 (1929) ). This rule, sometimes called the "absurdity doctrine," "is not to be used as a freewheeling tool for courts to second-guess and supplant the policy judgments made by the Legislature." State v. Hackley , 95 So.3d 92, 95 (Fla. 2012). Therefore, it applies "only under rare and exceptional circumstances." Id. (quoting Crooks v. Harrelson , 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930) ). Such circumstances are not attendant to section 775.082(9)(a)1.

Judge Makar, in his dissent from the Wright decision, explained why the plain language of section 775.082(9)(a)1. is not absurd:

A reasonable person could take the view that offenders released from DOC-operated state prisons are, on average, guilty of more serious crimes such that offenders released from a county facility would not trigger PRR sentencing; or perhaps the Legislature erred on the side of caution, limiting PRR status to releases from state prisons to avoid potential misclassifications of prisoners released from county facilities. Even if these are anomalous views, they are not wholly unreasonable; in fact, they make some sense.

Wright , 180 So.3d at 1048 (Makar, J., dissenting). To this analysis, the Lewars court added two possible reasons the Legislature might have chosen not to apply to the PRR statute to the circumstances presented in this case: (1) "the legislature reasonably could have excluded offenders like [Lewars] from PRR status because it intended only to punish, and to protect society from, those prior offenders who had not been dissuaded by the possibility of extended prison terms despite having already had a sample," or (2) "the legislature could have reasoned that enhanced sentencing would have been unwarranted for those like Lewars who had previously been confined for longer than their sentence of imprisonment required." Lewars , 42 Fla. L. Weekly at D1100-01, --- So.3d at ---- - ----, 2017 WL 1969691.

We agree with the rationale stated by Judge Makar and the Lewars court. Indeed, this rationale is consistent with our identification of the basis for the PRR statute's classification system in State v. Cotton , 769 So.2d 345, 356 (Fla. 2000), when addressing an equal protection challenge: "While the Act's classification scheme does not differentiate based upon the character of the releasee's prior crimes, it does focus on the character (and severity) of the latest criminal conduct, together with the fact that recent imprisonment did not dissuade the defendant from engaging in the qualifying offense." In addition, we agree with Judge Makar's observation that "[l]egislative line drawing is a fact of life; and it is no more unreasonable to dismiss a lawsuit filed one day after a statute of limitations has expired than to withhold PRR status for offenders who walk out of county facilities." Wright , 180 So.3d at 1052 (Makar, J., dissenting from denial of certification).

Further, we agree with Judge Makar's point that the absurdity doctrine is not appropriate for this statute because, to reach the interpretation advanced by the State and the courts in Wright , Taylor , and Louzon , we would have to rewrite the statute, rather than correct a "technical or ministerial error." Wright , 180 So.3d at 1048-49 (Makar, J., dissenting). This we cannot do. See Fla. Dep't of Revenue v. Fla. Mun. Power Agency , 789 So.2d 320, 324 (Fla. 2001) ("[C]ourts cannot judicially alter the wording of statutes .... A court's function is to interpret statutes as they are written and give effect to each word in the statute.") (footnote omitted).

Nevertheless, to bolster its argument under the absurdity doctrine, the State identifies a number of potential scenarios that it argues could result in an arbitrary denial of the State's opportunity to seek PRR sentencing against a defendant who would have qualified but for fortuitous circumstances. The State argues that these considerations show that the plain-language construction we have reached would violate defendants' rights to equal protection. Although it is proper to consider potential constitutional infirmities in a plain-language reading of a statute when deciding whether the absurdity doctrine justifies departure from the plain language, see Larimore v. State , 2 So.3d 101, 115 (Fla. 2008) (considering whether a particular construction of a statute would be "in accord with fairness and due process considerations" in applying the absurdity doctrine), we do not agree that requiring actual release from a prison, as opposed to a jail, results in either absurdity or a denial of equal protection.

The concerns expressed by the State in this case are addressed by our analysis in Grant v. State , 770 So.2d 655, 660 (Fla. 2000), where we rejected a similar equal protection challenge to the PRR statute (which at that time did not include release from federal prison as an alternative way to satisfy the "released from" requirement):

[Grant] contends that the Act draws no rational distinction between offenders who serve county jail sentences and those who commit the same acts and yet serve short prison sentences; between those who commit a new offense on the third anniversary of release from prison and others who commit a similar offense three years and a day after release; and between offenders who commit enumerated felonies within three years after their release from the Florida state prison system and those who were recently released from federal prison, local jails or other state prisons.... As observed by the Fifth District in King [v.State , 557 So.2d 899, 902 (Fla. 5th DCA 1990) ], "[e]qual protection does not require a state to choose between attacking every aspect of a problem or not attacking it at all." Id. at 902 (citing In re Estate of Greenberg , 390 So.2d 40, 46 (Fla. 1980) ). "It is not a requirement of equal protection that every statutory classification be all-inclusive." Rather, "the statute must merely apply equally to members of the statutory class and bear a reasonable relationship to some legitimate state interest." LeBlanc v. State , 382 So.2d 299, 300 (Fla. 1980) (citations omitted).
The Legislature "has wide discretion in creating statutory classifications, and there is a presumption in favor of validity." State v. Leicht , 402 So.2d 1153, 1154 (Fla. 1981) (citations omitted). A statutory classification will be deemed to violate equal protection only if it causes "different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary." In Re Estate of Greenberg , 390 So.2d 40, 42 (Fla. 1980) (citations omitted). As we have stated in a different context, where, as here, no suspect classification is involved, "the statute need only bear a reasonable relationship to a legitimate state interest." Some inequality or imprecision will not "render a statute invalid." Acton v. Fort Lauderdale Hospital , 440 So.2d 1282, 1284 (Fla. 1983).

We concluded in Grant that the PRR statute survived an equal protection challenge because it is reasonably related to a legitimate state interest, a test that we explained tolerates "[s]ome inequity or imprecision" in statutory classifications. Id. at 660. That legitimate state interest is, in part, an interest in heightened punishment for repeat offenders whose recent imprisonment "did not dissuade [them] from engaging in the qualifying offense[s]." Id. (quoting Cotton , 769 So.2d at 356 ). This reasoning applies equally to the arguments presented in this case.

CONCLUSION

For the foregoing reasons, we conclude that "release from a state correctional facility operated by the Department of Corrections or a private vendor," § 775.082(9)(a)1., does not include release from a county jail. Therefore, commission of a PRR-qualifying offense within three years of release from jail, rather than prison, does not satisfy the requirements of section 775.082(9)(a)1. Accordingly, we approve the Second District's decision in this case and disapprove the decisions of the First and Fifth Districts in Wright and Louzon . We also disapprove the decision of the Fourth District in Taylor , which construes different language than what is directly at issue in this case but relies on Louzon to arrive at a result inconsistent with the holding we reach in this case.

Ultimately, the State may be correct in its assertion that the Legislature intended for defendants who are sentenced to prison but released from county jails without ever setting foot in a prison to be punished as PRRs. Or, it is possible that the Legislature did not contemplate this circumstance. However, any intent to have a defendant like Lewars punished as a PRR is not clear from the plain language of the statute. The plain language requires the opposite, and it does not result in absurdity or an equal protection violation. We are bound by our precedent and the doctrine of separation of powers to apply the statute as written. See Holly , 450 So.2d at 219.

It is so ordered.

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

      As an alternative to the language directly at issue in this case, the PRR statute defines "prison releasee reoffender" as a defendant who commits a qualifying offense "within 3 years after being released from a correctional institution of ... the United States ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state." § 775.082(9)(a)1.

      The 2012 statute is cited in this opinion because Lewars was released from the sentence the State argues satisfies section 775.082(9)(a)1. in April 2013. The present version of the PRR statute is identical to the 2012 version.