text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-03.
    No. SC18-566
    Supreme Court of Florida.
    September 27, 2018
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

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

The Committee proposes amending the following existing instructions: 20.13 (Fraudulent Use or Possession with Intent to Fraudulently Use Personal Identification Information); 20.14 (Harassment by Use of Personal Identification Information); 20.15 (Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older] ); 20.16 (Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older] by a Parent, Guardian, or Person who Exercised Custodial Authority); 20.17 (Fraudulent Use or Possession with Intent to Fraudulently Use Personal Identification Information Concerning a [Deceased Individual] [Dissolved Business Entity] ); 20.18 ( [Fraudulent Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Counterfeit Personal Identification Information); and 20.21 (Fraudulent Use of Personal Identification Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder] [State Employee] [Federal Employee] ). The Committee published the proposals in the January 1, 2018, issue of The Florida Bar News . No comments were received by the Committee pertaining to the proposals. The more significant amendments to the instructions are discussed below.

Criminal jury instructions 20.13 (Fraudulent Use or Possession with Intent to Fraudulently Use Personal Identification Information), 20.14 (Harassment by Use of Personal Identification Information), 20.17 (Fraudulent Use or Possession with Intent to Fraudulently Use Personal Identification Information Concerning a [Deceased Individual] [Dissolved Business Entity] ), and 20.18 ( [Fraudulent Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Counterfeit Personal Identification Information) are amended to include a provision explaining the term "possession" that was previously authorized for criminal jury instructions 16.10 and 25.7 in In re Standard Jury Instructions in Criminal Cases-Report 2017-03 , 238 So.3d 182 (Fla. 2018).

For all of the amended instructions, the Committee created a separate section for the reclassification provided in section 817.568(5), Florida Statutes (2017), which provides that if a crime under the statute was facilitated or furthered by the use of a public record, the crime is reclassified to a higher degree and raised by one level on the Criminal Punishment Code scoresheet. The Committee also included a separate section in all of the amended instructions for the reclassification provided in section 817.568(10), Florida Statutes (2017), which provides a one-level increment in the Criminal Punishment Code scoresheet for any person who, for the purpose of obtaining or using personal identification information, misrepresents himself or herself to be a law enforcement officer; an employee or representative of a bank, credit card company, credit counseling company, or credit reporting agency; or any person who wrongfully represents that he or she is seeking to assist the victim with a problem with the victim's credit history.

Having considered the Committee's report, the amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining; deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

20.13 [ FRAUDULENT USE OF] [ OR ] [ POSSESSION WITH INTENT TO FRAUDULENTLY USE ] PERSONAL IDENTIFICATION INFORMATION § 817.568(2), Fla. Stat.

To prove the crime of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully and without authorization [fraudulently used] [possessed with intent to fraudulently use] personal identification information concerning (victim).
2. [He] [She] did so without first obtaining the consent of (victim).

Definitions. Give as applicable.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception or both.

§ 817.568(1)(b), Fla. Stat.

"Authorization" means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

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

§ 817.568(1)(e), Fla. Stat.

The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

Possession.

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.

Enhanced penalty. Give if applicable.

Reclassifications.

Give only if applicable and only if Fraudulent Use is charged.

§ 817.568(2)(b) and (2)(c), Fla. Stat.

If you find (defendant)guilty of Fraudulent Use of Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that:

Give only if Fraudulent Use is charged.

§ 817.568(2), Fla. Stat.

a. ____the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $5,000 or more.
b. ____the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $50,000 or more.
c. ____the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $100,000 or more.
d. ____[he] [she] fraudulently used the personal identification information of 10 or more but fewer than 20 persons without their consent.
e. ____[he] [she] fraudulently used the personal identification information of 20 or more but fewer than 30 persons without their consent.
f. ____[he] [she] fraudulently used the personal identification information of 30 or more persons without their consent.

Give only if applicable but may be used if either Fraudulent Use or Possession with Intent to Fraudulently Use is charged.

§ 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Give a. and/or b. only if applicable but may be used if either Fraudulent Use or Possession with Intent to Fraudulently Use is charged.

§ 817.568(10), Fla. Stat.

If you find (defendant) guilty of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information,

(defendant)a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].

§ 817.568(10), Fla. Stat.

(defendant)b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offenses

[FRAUDULENT USE OF] [OR] [POSSESSION WITH INTENT TO FRAUDULENTLY USE] PERSONAL IDENTIFICATION INFORMATION - 817.568(2) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO None*Unlawful 817.5685* 20.18(a)* Possession of the Personal Identification Information of Another Person Attempt 777.04(1) 5.1 Harassment by use 817.568(4) 20.14 of personal identification information Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card

Comment s

*It is unclear whether the courts will hold that a person charged solely with fraudulent use of personal identification information is necessarily charged with unlawful possession of personal identification information. In an abundance of caution, the Committee on Standard Jury Instructions in Criminal Cases put § 817.5685, Florida Statutes, in the Category One box.

This instruction was adopted in 2008 [980 So.2d 1056] and amended in 2016 [202 So.3d 830], and 2018.

20.14 HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION

§ 817.568(4), Fla. Stat.

To prove the crime of Harassment by Use of Personal Identification Information, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) willfully and without authorization [possessed] [used] [attempted to use] personal identification information concerning (victim).
2. [He] [She] did so without first obtaining the consent of (victim).
3. [He] [She] did so with the purpose of harassing (victim).

Definitions. Give as applicable.

"Willfully" means intentionally, knowingly, and purposely.

§ 817.568(1)(b), Fla. Stat.

"Authorization" means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

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

§ 817.568(1)(e), Fla. Stat.

The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

§ 817.568(1)(c), Fla. Stat.

"Harass" means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. "Harass" does not mean to use personal identification information for accepted commercial purposes and does not include constitutionally protected conduct such as organized protests.

Possession.

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.

Reclassification. § 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of Harassment by Use of Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Reclassification, § 817.568(10), Fla. Stat. Give a. and/or b. as applicable.

If you find (defendant) guilty of Harassment by Use of Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information,

a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].
b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offense

HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION - 817.568(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO NoneUnlawful 817.5685 20.18(a) Possession of Personal Identification Information of Another Person* Attempt (possession only) 777.04(1) 5.1 Unauthorized possession 322.212 of and other unlawful acts in relation to driver's license or identification card

Comments

*It is unclear whether the courts will hold that a person charged solely with using personal identification information of another without consent is necessarily charged with unlawful possession of personal identification information. Also, if a person is charged solely with attempted use of personal identification information, unlawful possession of personal identification information may or may not be a Category One lesser depending on the facts of the case. In an abundance of caution, the Committee on Standard Jury Instructions in Criminal Cases put § 817.5685, Florida Statutes, in the Category One box.

There are two possible enhanced penalties for this crime. See § 817.568(5), and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding.

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2016 [202 So.3d 830], and 2018.

20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON SIXTY YEARS OF AGE OR OLDER]

§ 817.568(6), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) willfully and without authorization fraudulently used personal identification information concerning (victim).
2. At the time, (victim) was [younger than 18 years of age] [60 years of age or older].
3. (Defendant) did so without first obtaining the consent of (victim) [or [his] [her] legal guardian].

Definitions.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception.

§ 817.568(1)(b), Fla. Stat.

"Authorization" means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

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

§ 817.568(1)(e), Fla. Stat.

The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

Reclassification. § 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older], you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Reclassification. § 817.568(10), Fla. Stat. Give a. and/or b. as applicable.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older], you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information,

a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].
b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offense

FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON SIXTY YEARS OF AGE OR OLDER - 817.568(6) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO *Fraudulent Use of 817.568(2)(a) 20.13 Personal Identification Information *Unlawful 817.5685 20.18(a) Possession of the Personal Identification Information of Another Person Attempt 777.04(1) 5.1 Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card

Comments

* The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully and without authorization fraudulently using the victim's personal identification information is a necessary lesser included offense of this crime. However,the part of § 817.568(2)(a), Fla. Stat. that covers the defendant possessing personal identification information with intent to fraudulently use is not it is unclear whether the courts will hold that someone charged solely with fraudulent use of personal identification information is necessarily charged with possession with intent to fraudulently use personal identification information or unlawful possession of personal identification information. In an abundance of caution, the Committee on Standard Jury Instructions in Criminal Cases put all of § 817.568(2)(a), Fla. Stat., and § 817.5685, Fla. Stat., in the Category One box.

There are two possible enhanced penalties for this crime. See § 817.568(5), and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding.

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2015 [176 So.3d 938],and 2016 [202 So.3d 830], and 2018.

20.16 FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR OLDER] BY A PARENT, LEGAL GUARDIAN, OR PERSON WHO EXERCISED CUSTODIAL AUTHORITY

§ 817.568(7), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification Information of a [Minor] [Person 60 Years of Age or Older] by a [Parent] [Legal Guardian] [or] [Person who Exercised Custodial Authority], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) willfully and fraudulently used personal identification information concerning (victim).
2. At the time, (victim) was [younger than 18 years of age] [60 years of age or older].
3. (Defendant) was [the parent of] [the legal guardian of] [exercised custodial authority over] (victim) at the time.

Definitions.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception.

§ 817.568(1)(f), Fla. Stat.

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

§ 817.568(1)(e), Fla. Stat.

The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

Reclassification. § 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older] By A [Parent] [Legal Guardian] [Person Who Exercised Custodial Authority], you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Reclassification. § 817.568(10), Fla. Stat. Give a. and/or b. as applicable.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Minor] [Person Sixty Years of Age or Older] By A [Parent] [Legal Guardian] [Person Who Exercised Custodial Authority], you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information,

a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].
b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offense

FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR OLDER] BY A [PARENT] [LEGAL GUARDIAN] [PERSON WHO EXERCISED CUSTODIAL AUTHORITY] - 817.568(7) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO None Fraudulent Use of 817.568(2)(a) 20.13 Personal Identification Information Unlawful Possession 817.5685 20.18(a) of Personal Identification Information of Another Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card Attempt 777.04(1) 5.1

Comments

There are two possible enhanced penalties for this crime. § 817.568(5), Fla. Stat. and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding.

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2015 [176 So.3d 938],and 2016 [202 So.3d 830], and 2018.

20.17 [FRAUDULENT USE OF ] [ OR ] [ POSSESSION WITH INTENT TO FRAUDULENTLY USE ] PERSONAL IDENTIFICATION INFORMATION CONCERNING A [DECEASED INDIVIDUAL] [DISSOLVED BUSINESS ENTITY]

§ 817.568(8), Fla. Stat.

To prove the crime of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information Concerning a [Deceased Individual] [Dissolved Business Entity], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [willfully and fraudulently used] [possessed with intent to fraudulently use] personal identification information concerning (victim).
2. At the time, (victim) was a [deceased individual] [dissolved business entity].

Definitions. Give as applicable.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception or both.

§ 817.568(1)(d), Fla. Stat.

"Individual" means a single human being and does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity.

§ 817.568(1)(f), Fla. Stat.

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

Possession.

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.

Enhanced penalty. Give if applicable.

Reclassifications.

Give only if applicable and only if Fraudulent Use is charged. § 817.568(8)(b) and (8)(c), Fla. Stat.

If you find (defendant)guilty of Fraudulent Use of Personal Identification Information of a [Deceased Individual] [Dissolved Business Entity], you must then determine whether the State has further proved beyond a reasonable doubt that:

Give only if Fraudulent Use is charged.

§ 817.568(8), Fla. Stat.

a. the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $5,000 or more.
b. the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $50,000 or more.
c. the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated was $100,000 or more.
d. [he] [she] fraudulently used the personal identification information of 10 or more but fewer than 20 [deceased individuals] [dissolved business entities].
e. [he] [she] fraudulently used the personal identification information of 20 or more but fewer than 30 [deceased individuals] [dissolved business entities].
f. [he] [she] fraudulently used the personal identification information of 30 or more [deceased individuals] [dissolved business entities]

Give only if applicable but may be used if either Fraudulent Use or Possession with Intent to Fraudulently Use is charged.

§ 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Give a. and/or b. only if applicable but may be used if either Fraudulent Use or Possession with Intent to Fraudulently Use is charged.

§ 817.568(10), Fla. Stat.

If you find (defendant) guilty of [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information.

(defendant)a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].

§ 817.568(10), Fla. Stat.

(defendant)b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offense

[FRAUDULENT USE OF] [OR] [POSSESSION WITH INTENT TO FRAUDULENTLY USE] PERSONAL IDENTIFICATION INFORMATION CONCERNING A [DECEASED INDIVIDUAL] [DISSOLVED BUSINESS ENTITY] - 817.568(8) CATEGORY ONE CATEGORY FLA. STAT. INS. NO. TWO None Unlawful Possession 817.5685 20.18(a) of Personal Identification Information of Another Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2008 [980 So.2d 1056] and amended in 2016 [202 So.3d 830] and 2018.

20.18 [FRAUDULENT CREATION OF] [FRAUDULENT USE OF] [POSSESSION WITH INTENT TO FRAUDULENTLY USE] COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION

§ 817.568(9), Fla. Stat.

To prove the crime of [Fraudulent Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Counterfeit Personal Identification Information, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) willfully and fraudulently [created] [used] [possessed with intent to fraudulently use] counterfeit or fictitious personal identification information.

Give 2a or 2b as applicable.

2. a. The personal identification information concerned a fictitious individual.
b. The personal identification information concerned a real individual whose consent had not first been obtained.
3. [He] [She] did so with intent to use the counterfeit or fictitious personal identification information to commit or to facilitate the commission of a fraud on another person.

Definitions. Give as applicable.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception.

§ 817.568(1)(f), Fla. Stat.

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

§ 817.568(1)(g), Fla. Stat.

"Counterfeit or fictitious personal identification information" means any counterfeit, fictitious or fabricated information in the similitude of the data just defined to you that, although not truthful or accurate, would in context lead a reasonably prudent person to credit its truthfulness and accuracy.

§ 817.568(1)(e), Fla. Stat.

The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

Possession.

To prove (defendant) "possessed counterfeit or fictitious 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.

Reclassification. § 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of [Fraudulent Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Counterfeit Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Reclassification. § 817.568(10), Fla. Stat. Give a. and/or b. as applicable.

If you find (defendant) guilty of [Fraudulent Creation of] [Fraudulent Use of] [Possession with Intent to Fraudulently Use] Counterfeit Personal Identification Information, you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information.

a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].
b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.

Lesser Included Offense

FRAUDULENT CREATION, USE OR POSSESSION OF COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION - 817.568(9) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Unlawful Possession 817.5685 of Personal Identification Information of Another Person Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card Attempt 777.04(1) 5.1

Comments

There are two possible enhanced penalties for this crime. See § 817.568(5), and § 817.568(10), Fla. Stat. If one of those enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding.

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2016 [202 So.3d 830] and 2018.

20.21 FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT] [VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL EMPLOYEE]

§ 817.568(11), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder] [State Employee] [Federal Employee], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) willfully and without authorization fraudulently used personal identification information concerning (victim).
2. At the time, (victim) was [a disabled adult] [a public servant] [a veteran] [a first responder] [a state employee] [a federal employee].
3. (Defendant) did so without first obtaining consent of (victim).

Definitions.

"Willfully" means intentionally, knowingly, and purposely.

"Fraudulently" means purposely or intentionally suppressing the truth or perpetrating a deception.

§ 817.568(1)(b), Fla. Stat.

"Authorization" means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

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

Give as applicable.

§ 825.101(3), Fla. Stat.

"Disabled adult" means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living.

§ 838.014(7), Fla. Stat.

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

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

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

§ 838.014(4), Fla. Stat.

"Governmental entity" means an agency or entity of the state, a county, municipality, or special district or any other public entity created or authorized by law.

§ 1.01(14), Fla. Stat.

"Veteran" means a person who served in the active military, naval, or air service and who was discharged or released under honorable conditions only or who later received an upgraded discharge under honorable conditions, notwithstanding any action by the United States Department of Veterans Affairs on individuals discharged or released with other than honorable discharges.

§ 125.01045(2), Fla. Stat.

"First responder" means a law enforcement officer, a firefighter, or an emergency medical technician or paramedic who is employed by the state or a local government. [A volunteer law enforcement officer, firefighter, or emergency medical technician or paramedic engaged by the state or a local government is also considered a first responder of the state or local government for purposes of this section.]

§ 943.10(10), Fla. Stat.

"Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

§ 633.102(9), Fla. Stat.

"Firefighter" means an individual who holds a current and valid Firefighter Certificate of Compliance or Special Certificate of Compliance issued by the Division of State Fire Marshal within the Department of Financial Services.

§ 401.23(17), Fla. Stat.

"Paramedic" means a person who is certified by the Department of Health to perform basic and advanced life support.

Reclassification. § 817.568(5), Fla. Stat. and § 119.011, Fla. Stat.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder] [State Employee] [Federal Employee], you must then determine whether the State has further proved beyond a reasonable doubt that the crime was facilitated or furthered by the use of a public record. "Public record" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Reclassification. § 817.568(10), Fla. Stat. Give a. and/or b. as applicable.

If you find (defendant) guilty of Fraudulent Use of Personal Identification Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder] [State Employee] [Federal Employee], you must then determine whether the State has further proved beyond a reasonable doubt that [he] [she], for the purpose of obtaining or using personal identification information,

a. misrepresented [himself] [herself] to be [a law enforcement officer] [an employee or representative of a bank, credit card company, credit counseling company or credit reporting agency].
b. wrongfully represented that [he] [she] was seeking to assist (victim) with (victim's) credit history.
Lesser Included Offenses FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT] [VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL EMPLOYEE] - 817.568(11) CATEGORY ONE CATEGORY FLA.STAT. INS. NO. TWO *Fraudulent Use of 817.568(2)(a) 20.13 Personal Identification Information *Unlawful 817.5685 20.18(a) Possession of Personal Identification Information of Another Unauthorized 322.212 possession of and other unlawful acts in relation to driver's license or identification card Attempt 777.04(1) 5.1

Comments

* The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully and without authorization fraudulently using the victim's personal identification information is a necessary lesser included offense of this crime. However,the part of § 817.568(2)(a), Fla. Stat., that covers the defendant possessing personal identification information with intent to fraudulently use is not notit is unclear whether the courts will hold that someone charged with fraudulent use of personal identification information is necessarily charged with possession with intent to fraudulently use personal identification information or unlawful possession of personal identification information. In an abundance of caution, the Committee on Standard Jury Instructions in Criminal Cases put all of § 817.568(2)(a), Fla. Stat., and § 817.5685, Fla. Stat., in the Category One box.

Both § 817.568(6), Fla. Stat., and § 817.568(11), Fla. Stat., criminalize Fraudulent Use of Personal Identification Information of a Person 60 Years of Age or Older. While both are second degree felonies, § 817.568(6), Fla. Stat., is listed in level 8 and § 817.568(11), Fla. Stat., is unlisted, which would make it a level 4, according to § 921.0023, Fla. Stat. If the State alleges that the defendant violated § 817.568(11), Fla. Stat., and that the victim was 60 years of age or older, the trial judge should instruct using the appropriate parts of Instruction 20.15.

There are two possible enhanced penalties for this crime. See § 817.568(5) and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a special instruction would be necessary in order for the jury to make the appropriate finding.

This instruction was adopted in 2015 [176 So.3d 938] and amended in 2016 [202 So.3d 830] and 2018.

      The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-01.
    No. SC18-488
    Supreme Court of Florida.
    September 27, 2018
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard criminal jury instructions 10.13 (Shooting or Throwing Missiles in Dwelling), 10.14 (Possession of Forbidden Firearms), 10.15 (Felons Carrying a Concealed Weapon or Possessing Firearm/Ammunition/Electric Weapon or Device), and 10.15(a) (Possession of [a Firearm] [an Electric Weapon or Device] [Ammunition] or [Carrying a Concealed Weapon] by a Person Under the Age of 24 Who Has Been Found Delinquent of an Offense Which Would Be a Felony if Committed by an Adult). Following publication in The Florida Bar News , the Committee received one comment pertaining to the proposal to amend instruction 10.13, from the Florida Public Defender Association. The Committee agreed with the comment and made responsive changes to its proposal. We authorize the instructions as proposed by the Committee, and discuss the more significant amendments to the instructions below.

With regard to instruction 10.13, we modify the title to replace "Missiles in Dwelling" with "A [Missile] [Stone] [Hard Substance] [At] [Within] [Into] [In] A[n] [Building] [Vehicle] [Vessel] [Aircraft]."

The word "dwelling" is removed because it is not referenced in the elements of the offense as defined in section 790.19, Florida Statutes (2018). Turning to element one, the instruction is amended to remove the reference to "shot a firearm," as the statute does not include that phrase. Element two is amended to add "that was being used or occupied by any person" to the alternative "a public or private bus." In addition, the alternative "a vehicle of any kind that was being used or occupied by any person" is added to element two.

Turning to instruction 10.14, the title is amended to replace "Forbidden Firearms" with "A [Short-Barreled Rifle] [Short-Barreled Shotgun] [Machine Gun]." An italicized paragraph to the trial court is added pertaining to the burden of persuasion with regard to the "antique firearm affirmative defense," as well as an amended instruction on the defense and new instructions on the burden. The definition for "possession" is amended, based upon the definition recently authorized by the Court in other instructions including "possession." See In re Standard Jury Instructions in Criminal Cases-Report 2017-03 , 238 So.3d 182, 183-184 (Fla. 2018). Finally, the statutory definitions for "machine gun," "short-barreled shotgun," and "short-barreled rifle" are added.

Lastly, in instructions 10.15 and 10.15(a), the definition for "possession" is amended based upon In re Standard Jury Instructions in Criminal Cases-Report 2017-03 , 238 So.3d at 183-84. Also, two different definitions for "knowingly" are added as optional definitions.

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

10.13 SHOOTING OR THROWING MISSILES IN DWELLING A [MISSILE] [STONE] [HARD SUBSTANCE] [AT] [WITHIN] [INTO] [IN] A[N] [BUILDING] [VEHICLE] [VESSEL] [AIRCRAFT]

§ 790.19, Fla._Stat.

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

Give 1a and or 1b as applicable.

1. (Defendant)

a. [shot] [or] [threw] a missile that would produce death or great bodily harm.
b. hurled or projected a stone or other hard substance that would produce death or great bodily harm.
[shot a firearm].
[threw a missile].
[hurled or projected a stone or other hard substance that would produce death or great bodily harm].

Give 2a-2f as applicable.

2. [He] [She] did so [at] [within] [into] [in]

a. [a public or private building, occupied or unoccupied].
b. [a public or private bus, that was being used or occupied by any person].
c. [a train, locomotive, railway car, caboose, cable railway car, street railway car, or monorail car, or vehicle of any kind that was being used or occupied by any person].
d. a vehicle of any kind that was being used or occupied by any person.
e. [a boat, vessel, ship, or barge lying in or plying the waters of this state].
f. [an aircraft flying through the air space of this state].

3. The defendant's act was done wantonly or maliciously.

Definitions State v. Kettell, 980 So.2d 1061 (Fla. 2008).

"Wantonly" means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.

State v. Kettell, 980 So.2d 1061 (Fla. 2008).

"Maliciously" means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Give if applicable. Polite v. State, 454 So.2d 769 (Fla. 1st DCA 1984).

A "firearm" is legally defined as (adapt from § 790.001, Fla. Stat., as required by allegations). It is not necessary for the State to prove a defendant acted with malevolence toward a vehicle or structure itself if the State proved [he] [she] acted with a wanton or malicious attitude directed toward an individual within or near the vehicle or structure.

Lesser Included Offenses SHOOTING OR THROWING MISSILES IN DWELLING A [MISSILE] [STONE] [HARD SUBSTANCEIIAT1 IWITHINI [INTO] [IN] A[N] [BUILDING] [VEHICLE] [VESSEL] [AIRCRAFT] - 790.19 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Criminal Mischief 806.13 12.4 Discharging firearm in 790.15 10.6 public

Comment

This instruction was adopted in 1981 and amended in 2018.

10.14 POSSESSION OF FORBIDDEN FIREARMS A [SHORT-BARRELED RIFLE] [SHORT-BARRELED SHOTGUN] [MACHINE GUN]

§ 790.221, Fla._Stat.

To prove the crime of (crime charged)Possession of a [Short-Barreled Rifle] [Short-Barreled Shotgun] [Machine Gun] ,the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [owned] [or had in [his] [her] care, custody, possession, or control] a (firearm alleged) [short-barreled rifle] [short-barreled shotgun] [machine gun].
2. The (firearm alleged)) [short-barreled rifle] [short-barreled shotgun] [machine gun] was one that was, or could readily be made, operable.

Antique Firearm Affirmative Defenses. Give if applicable.

If you find that the (firearm alleged) was lawfully owned and possessed under provisions of the federal law, you shall find the defendant not guilty.

§ 790.221(1). Fla. Stat.; § 790.001(1). Fla. Stat.

The statute and case law are silent as to (1) which party bears the burden of persuasion of the defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on 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.

This law does not apply to antique firearms. It is a defense if the [short-barreled rifle] [short-barreled shotgun] [machine gun] is an antique firearm. An "antique firearm" means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

If burden of persuasion is on the defendant:

If you find that defendant proved (insert appropriate burden of persuasion) that the [short-barreled rifle] [short-barreled shotgun] [machine gun] is an antique firearm, you should find [him] [her] not guilty.

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the [short-barreled rifle] [short-barreled shotgun] [machine gun] is not an antique firearm, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

Definitions. Give as applicable.

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

Possession.

To prove (defendant) "possessed" a [short-barreled rifle] [short-barreled shotgun] [machine gun], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [short-barreled rifle] [short-barreled shotgun] [machine gun] and b) intentionally exercised control over it.

Give if applicable.

Control can be exercised over a [short-barreled rifle] [short-barreled shotgun] [machine gun] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to a [short-barreled rifle] [short-barreled shotgun] [machine gun] 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 [short-barreled rifle] [short-barreled shotgun] [machine gun] or the present ability to direct its control by another.

Joint possession.

Possession of a [short-barreled rifle] [short-barreled shotgun] [machine gun] may be sole or joint, that is, two or more persons may possess it.

A ["short-barreled rifle"] ["short-barreled shotgun"] ["machine gun"] is legally defined as (adapt from § 790.001(9), (10), or (11), Fla. Stat., as required by the allegations).

An "antique firearm" is legally defined as (adapt from § 790.001(1), Fla.Stat., as required by the allegations).

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

Possession may be actual or constructive. If a thing is in the hand of or on the person, or in a bag or container in the hand of or on the person, or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.

If a thing is in a place over which the person has control or in which the person has hidden or concealed it, it is in the constructive possession of that person.

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

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

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

§ 790.001(9), Fla. Stat.; § 790.001(6), Fla. Stat.

A "machine gun" means any firearm which shoots, or is designed to shoot, automatically more than one shot, without manually reloading, by a single function of the trigger. A "firearm" means any weapon 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.

§ 790.001(10), Fla. Stat.

A "short-barreled shotgun" means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches.

§ 790.001(11), Fla. Stat.

A "short-barreled rifle" means a rifle having one or more barrels less than 16 inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches.

Lesser Included Offenses POSSESSION OF FORBIDDEN FIREARMS A [SHORT-BARRELED RIFLE] [SHORT-BARRELED SHOTGUN] [MACHINE GUN] - 790.221 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comment s

Pursuant to § 790.221(3), Fla. Stat., firearms which are lawfully owned and possessed under provisions of federal law are excepted from the statute. A special instruction will be required in cases where the defendant claims federal law allows the ownership and possession of those firearms.

This instruction was adopted in 1981 and was amended in 1989 [540 So.2d 1205] and 2018.

10.15 FELONS CARRYING A CONCEALED WEAPON OR POSSESSING [A FIREARM ] /[ AMMUNITION ] / [AN ELECTRIC WEAPON OR DEVICE ]

§ 790.23, Fla. Stat.

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

1. (Defendant)had been convicted of a felony.

Give 2a and/ or 2b as applicable.

2. After the conviction, (defendant)knowingly

a. [owned] [or had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition].
b. [carried a concealed weapon.]

Definitions.

"Convicted" means that a judgment has been entered in a criminal proceeding by a court pronouncing the accused guilty.

Give as appropriate. See § 790.001, Fla. Stat.

§ 790.001 (6), Fla. Stat.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of 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. An antique firearm is (insert definition in § 790.001(1), Fla. Stat. ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat. ].

§ 790.001 (14), Fla. Stat.

An "electric weapon or device" means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

§ 790.001 (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.

Give if defendant is charged with Convicted Felon Carrying a Concealed Weapon. See Fla. Stat. § 790.001(3)(a) , Fla. Stat.

A "concealed weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person.

Ensor v. State, 403 So.2d 349 (Fla. 1981); Dorelus v. State, 747 So.2d 368 (Fla. 1999).

The term "on or about [his] [her] person" means physically on the person or readily accessible to [him] [her].

The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. A weapon need not be completely hidden for you to find that it was concealed. However, a weapon is not concealed if, although not fully exposed, its status as a weapon is detectable by ordinary observation.

Give if appropriate.

R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A "deadly weapon" is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

Give if 2a alleged.

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

Possession.

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

Give if applicable.

Control can be exercised over [a firearm] [an electric weapon or device] [ammunition] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] [an electric weapon or device] [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] [electric weapon or device] [ammunition] or the present ability to direct its control by another.

Joint possession.

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

To "possess" means to 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. 4th DCA 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.

Optional Definitions. Shaw v. State, 510 So.2d 349 (Fla. 2d DCA 1987).

"Knowingly" means with actual knowledge and understanding of the facts or the truth.

"Knowingly" means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

Lesser Included Offenses FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE - 790.23 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Carrying a Concealed 790.01(1) 10.1 Weapon if Carrying a Concealed Weapon by a Convicted Felon is charged Attempt 777.04(1) 5.1 Carrying concealed 790.01(2) 10.1 firearm

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1992 [603 So.2d 1175], 2007 [953 So.2d 495],and 2013 [131 So.3d 720], and 2018.

10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [ CARRYING A CONCEALED WEAPON ] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT

§ 790.23(1)(b) or (d), Fla. Stat.

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

1. (Defendant) had been found by [a court of this state] [a court of another [state] [territory] [country]] to have committed a delinquent act that would be a felony if committed by an adult [and which was punishable by imprisonment for a term exceeding 1 year].

Give 2a and/ or 2b as applicable.

2. After being found to have committed that delinquent act, (defendant) knowingly
a. [owned] [or had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition].
b. [carried a concealed weapon.]
3. (Defendant) was under 24 years of age at the time [he] [she] [[owned] [possessed][owned or had in [his] [her[ care, custody, possession, or control, [the firearm] [the electric weapon or device] [the ammunition]] [carried the concealed weapon].

Note to Judge: "Found" refers to a finding of fact by a court of competent jurisdiction and does not require an adjudication of guilt. State v. Menuto, 912 So.2d 603 (Fla. 2d DCA 2005).

Definitions.

§ 985.03(8), Fla. Stat.

"Delinquent act" is a violation of law found by a court to have been committed by any married or unmarried child under 18 years of age.

Give as appropriate.

§ 790.001(6), Fla. Stat.

A "firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is (insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert definition in insert definition in § 790.001(4), Fla. Stat. ) ].

§ 790.001(19), Fla. Stat.

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

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

§ 790.001(14), Fla. Stat.

An "electric weapon or device" means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

§ 790.001(3) (a), Fla. Stat.

A "concealed weapon" is legally defined as means any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

Ensor v. State, 403 So.2d 349 (Fla. 1981); Dorelus v. State, 747 So.2d 368 (Fla. 1999).

The term "on or about a person" means physically on the person or readily accessible to [him] [her].

The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. Absolute invisibility is not a necessary element to a finding of concealment.

Give if appropriate.

Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989); R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A "deadly weapon" is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object can also be a deadly weapon because of the way it is used or intended to be used or threatened to be used.

Give if 2a alleged.

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

Possession.

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

Give if applicable.

Control can be exercised over [a firearm] [an electric weapon or device] [ammunition] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] [an electric weapon or device] [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] [electric weapon or device] [ammunition] or the present ability to direct its control by another.

Joint possession.

Possession of [a firearm] [an electric weapon or device] [ammunition] 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 the thing possessed.

Possession may be actual or constructive.

Actual possession means

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

Give if applicable.

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

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

In order to establish constructive possession of an object if the object is in a place over which the defendant does not have control, the State must prove the defendant's (1) control over the object and (2) knowledge that the object was within the defendant's presence.

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

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

A special instruction may be given if the premises are jointly occupied and the object is located in a common area, in plain view, and in the presence of the owner or occupant. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).

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

Optional Definitions. Shaw v. State, 510 So.2d 349 (Fla. 2d DCA 1987).

"Knowingly" means with actual knowledge and understanding of the facts or the truth.

"Knowingly" means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

Lesser Included Offenses CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT - 790.23(1)(b) or (d) Fla. Stat. CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Carrying a Concealed 790.01(1) 10.1 Weapon if Carrying a Concealed Weapon is charged Attempt 777.04(1) 5.1 Carrying concealed 790.01(2) 10.1 firearm

Comments

The 3-year minimum mandatory sentence for actual possession of a firearm does not apply because this crime is not listed in § 775.087(2), Fla. Stat.Potter v. State, 997 So.2d 1215 (Fla. 1st DCA 2008).

This instruction was adopted in 2012 [95 So.3d 868] and amended in 2018.

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

      The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.