IN THE SUPREME COURT OF FLORIDA IN RE: STANDARD JURY INSTRUCTIONS vs. IN CRIMINAL CASES (NO. 2005-1)

Case No. SC05-803

INSTRUCTIONS – 8.6 8.7(a) 8.7(b) 8.8

Stalking Aggravated Stalking Aggravated Stalking Aggravated Stalking (Victim Under 16) 10.15 Felons Possessing Weapons/ Ammunition 11.14 Dangerous Sexual Felony Offender 13.2 Possession of Burglary Tools 13.21 New Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary _______________________________________/

AMENDED REPORT – SC05-803 SUPREME COURTCOMMITTEE ON STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES To the Chief Justice and Justices of the Supreme Court of Florida: This amended report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases on the Supreme Court’s website at http://www.floridasupremecourt.org/jury_instructions.shtml, is filed pursuant to Article V, section 2(a), Florida Constitution. Proposed new and amended instructions can be found at Amended Appendix A. Words to be removed are shown by strike-through marks, and words to be added are shown by underlining. Excerpts from the committee minutes can be found at Appendix C. The comments received can be found at Appendix D.

In response to a directive from the Court to compare the amended instructions proposed in SC05-803, to the criminal jury instructions posted on the Supreme Court’s website and the Standard Jury Instructions in Criminal Cases, Fifth Edition, a triple column side-by-side comparison can be found at Appendix B, for all instructions except the new proposals. Words appearing in red in the first and second columns indicate differences between the Fifth Edition instruction and the website instruction. Words appearing in blue in the third column indicate an amendment to the website. The instructions were published in The Florida Bar News on July 1, 2005. Comments were received from Mr. Bart Schneider, Assistant State Attorney, Ninth Judicial Circuit, and The Honorable David A. Glant, Circuit Judge, Eighth Judicial Circuit. Explanation of Proposals Proposal 1.

14.1 Theft

The committee withdrew the instruction from further consideration in this case upon a Motion to Remove filed August 31, 2006. The motion was granted on September 26, 2006. Proposal 2.

10.15 Felons Possessing Weapons/Ammunition

Chapter 2004-286, Laws of Florida, amended section 790.23, Florida Statutes, adding “ammunition” to the specified list of weapons for which possession by a felon or delinquent constitutes a felony of the second degree. The proposed instruction was discussed by the committee in February 2005, and was approved unanimously. In December 2005, after publication in the Bar News, the committee reviewed the comments received. The committee agreed with some of the comments and further amendments were made to the proposed instruction. A Motion to Amend was granted in February 2006. The following are the final amendments to the instruction passed unanimously by the committee. 1.

The title to the instruction was completely changed to conform it to the body of the instruction.

2.

The prior offense was identified as a felony in element one, since this 2

is a statutory requirement before there can be a conviction. 3.

The word “ammunition” was added to element 2a.

4.

Element 2b was made more concise by referencing only a concealed weapon.

5.

The defense of having one’s civil rights restored was deleted. The sentiment of the committee was that, if it was shown that the defendant’s rights had been restored, the judge would dismiss the case. Therefore, this section was unnecessary.

6.

The word “competent” was considered unnecessary and deleted from the definition of “convicted.”

7.

The definitions of firearm, ammunition, electric weapons or devices and concealed weapon were referenced to section 790.001, Florida Statutes and deadly weapon was defined.

8.

The definition of “possession” was changed to be consistent with the proposed language for “possession” in the drug abuse instructions in SC05-1434, amending actual and constructive possession.

Proposal 3.

11.14 Dangerous Sexual Felony Offender

Chapter 2003-115, Laws of Florida, reworded section 794.0115, Florida Statutes, to create a mandatory minimum sentence of twenty five years imprisonment for violating the “Dangerous Sexual Offender Act.” At the meetings in March and July 2004, the committee discussed the need for a jury instruction to cover this law. Because the statute enhances the penalty for several Florida statutes, the committee queried whether the holding in Apprendi v. New Jersey, U.S. 466, 120 S.Ct. 2348 U.S., 2000 would apply. After much debate, the committee concluded that the holding in Apprendi requires a jury to make a finding that the additional element in s. 794.0115, must be proven by the State beyond a reasonable doubt. In February 2005, the committee reviewed a clean version of the instruction as previously discussed. The instruction tracks the statutory language. It includes directive language to the trial court that, section (d) – committing the offense while 3

under the jurisdiction of a court, and section (e) – a previous conviction for an enumerated offense, could be proven in a bifurcated proceeding. Neither section requires a jury to find the defendant was convicted of a prior offense beyond a reasonable doubt. The instruction passed unanimously. Proposal 4(a)

8.6 Stalking

Chapter 2003-23, Laws of Florida, amended section 784.048, Florida Statutes, to include cyberstalking as one of the recognized methods of stalking. The committee reviewed the law in July 2004, and agreed that the existing stalking instructions should be amended Instruction 8.6 was amended to insert “cyberstalked” in the element of the crime and to define cyberstalking. The definition of cyberstalking tracks the statutory definition. The proposed instruction passed the committee by a unanimous vote in February, 2005. Proposal 4(b).

8.7(a) Aggravated Stalking

The committee approved 8.7(a) unanimously in February 2005, inserting the word cyberstalking in element one and defined cyberstalking using the statutory definition. In July 2005, the committee amended element two to clarify that “a credible threat” specifically applied to either the victim or the named subject of the threat. Language was added to identify the subject of the threat, which includes family members or dependents. The amended instruction was passed unanimously by the committee. Proposal 4(c)

8.7(b) Aggravated Stalking (Injunction Entered)

The committee approved 8.7(a) unanimously in February 2005. In December 2005, after publication in the Bar News, the committee reviewed and considered the comments received. The final amended instruction was approved unanimously by an email vote in December 2005. The following changes are the final amendments approved by the committee. 1.

“Cyberstalked” was added to element one.

2.

Element two was rewritten merging 2a and 2b into one element and 4

adding sexual and dating violence to coincide with the statutory language. 2.

Element 2c became a new element three and was reworded to require the defendant to know that an injunction had been entered. Although the statute is silent with regard to this element, the committee determined that knowledge of the existence of an injunction was required to be proven by the State.

3.

A definition of “Cyberstalked” was added tracking the statutory definition.

4.

The definition of “credible threat” was deleted because the committee considered this definition unnecessary.

Proposal 4(d)

8.8 Aggravated Stalking (Victim under 16 years of age)

The committee amended 8.8 to insert cyberstalked in element one and defined cyberstalking. The definition of cyberstalking tracks the statutory definition. The proposal was approved unanimously in February 2005. Proposal 5.

13.2 Possession of Burglary Tools

This instruction was included as part of a larger review by the committee to update the lesser included offenses for specified instructions, as well as to check for out dated instructions. The amended instruction was discussed in November 2004, and February 2005. The committee agreed that the elements of the offense were not listed in the proper order of importance. The committee changed the elements from four to three. Element four was moved to element one. Elements two and three were collapsed into element two. The amended instruction passed by a unanimous vote in February 2005. Proposal 6.

13.21 Impairing and Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary

Chapter 2003-84, Laws of Florida, created section 810.061, Florida Statutes, prohibiting the damage, impairing or impeding of telephone service or electric power to a dwelling in order to facilitate a burglary. A proposed new instruction 5

was discussed in July 2004, February 2005, and December 2005. The committee drafted the instruction to track the statutory language. However it opted to omit the words “conveys” in element 1a, and “conveyance” in elements 1b, and 1c. Although these words appear in the statute, the committee concluded that both words were synonyms for the word “transmission.” The committee determined that inserting these words in the elements of the instruction could lead to jury confusion, because the word “conveyance” appears in the definition of the word “dwelling” in the instruction. The definitions used for “dwelling” and “conveyance” tracked the statutory definitions in the Florida Statutes. Definitions for “Impaired,” “Impeded,” “Facilitate,” and “attempt” were written by the committee. Lastly the instruction directs the trial court to see instruction 13.1 – Burglary for the elements of burglary. Chapter 2001-58, Laws of Florida, amended section 810.02, Florida Statutes, changing the elements for burglary for offenses committed after July 1, 2001. Instruction 13.1 continues to have the old elements for burglary (offenses committed before July 1, 2001). However, the committee recently approved an amended instruction 13.1, updating the elements to track the statute. Even though this instruction is not yet before the Court, the committee concluded that the trial court should be directed to the burglary instruction for the elements of the offense, in the event the definition is changed in the future. The final amended instruction was passed by the committee in December 2005. All Proposals in SC05-803. Upon further review of the instructions in SC05-803, it was noted that some grammatical and formatting corrections were necessary to conform to the version of the instruction on the Supreme Court’s website. Those corrections have been made and are approved by the committee. Submitted this _______day of October 2006. Respectfully submitted,

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____________________________________ THE HONORABLE TERRY D. TERRELL Chair, Committee on Standard Jury Instructions in Criminal Cases Circuit Judge, First Judicial Circuit M. C. Blanchard Judicial Center 190 W. Government Street Pensacola, Florida 32502-5773 Fla. Bar No. 0231630

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CERTIFICATE OF FONT SIZE I hereby certify that this brief has been prepared using Times New Roman 14 point font in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing instrument has been furnished to: Mr. Bart Schneider Bart Schneider, PA 529 Magnolia Ave. Orlando Fl. 32301

The Honorable David A. Glant Circuit Judge, Eighth Judicial Circuit 220 South Main Street Gainesvile, FL 32601

by mail delivery this _____ day of October 2006.

____________________________________ THE HONORABLE TERRY D. TERRELL Chair, Committee on Standard Jury Instructions in Criminal Cases

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