In re Stan. Jury Instr. in Criminal Cases

Supreme Court of FloridaMar 30, 1989
543 So. 2d 1205 (Fla. 1989)

No. 73033.

March 30, 1989.

Original Proceeding — Standard Jury Instructions in Criminal Cases.

Harry Lee Coe, III, Chairman, Committee on Standard Jury Instructions (Criminal), Tampa, for petitioner.


The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted two petitions which propose amendments to the Florida Standard Jury Instructions in Criminal Cases. The petitions are set forth below, and the exhibits referred to therein are appended to the end of this opinion:

PROPOSED AMENDMENTS TO FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (88-1) _________________________________________________________________ To: CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA

Your committee recommends the following revisions to the Florida Standard Jury Instructions in Criminal Cases. Most of the proposed revisions are the same as those published in the January 1, 1988, issue of the Florida Bar News. A few changes have been made based on responses to the proposals as published, and some additional proposals that the committee believes are noncontroversial have been added. Following the order in which the instructions appear in The Florida Bar's jury instructions manual, the changes recommended and the reasons for the changes are provided below. To the extent possible, wording to be deleted is indicated by strike through marks and wording to be added is underlined.

1. Page 39 of the Bar's manual provides an instruction on entrapment. Chapter 87-243, Section 42, Laws of Florida, creates Section 777.201, Florida Statutes, which redefines the entrapment defense. Instructions incorporating the new law are provided in Exhibit 1. The new instruction is for offenses occurring on or after October 1, 1987. The committee decided to retain the current instruction for use when the offense occurred before October 1, 1987. An additional proposed change to both of the instructions is the addition of a definition of "predisposition." In particular, the court's attention to the final paragraph of the new instruction is requested.

2. Pages 45c and 45d of the manual provide the current instruction on justifiable use of force by law enforcement officers. Chapter 87-147, Laws of Florida, amends Section 776.05, Florida Statutes, to redefine justifiable use of force by an officer. A revised instruction to reflect the statutory change is provided in Exhibit 2.

3. Pages 77 through 82 of the manual provide instructions on penalty proceedings in capital cases. Chapter 87-368, Section 1, Laws of Florida, creates Section 921.141(5)(j), Florida Statutes, which provides an additional aggravating circumstance to be considered by the jury. The committee therefore proposes the addition of paragraph 10 to the list on pages 78 and 79 of the manual as follows:

10. The victim of the crime for which defendant is to be sentenced was a law enforcement officer engaged in the performance of the officer's official duties.

4. Page 97 of the manual provides for the offense of carrying concealed weapons. A change to paragraph 2 of that instruction is proposed as follows:

2. The (weapon alleged) was concealed from the ordinary sight of another person others who might casually observe the defendant.

Support for the current wording comes from Ensor v. State, 403 So.2d 349, 354 (Fla. 1981), but the committee believes that the instruction should be amended to conform to the statutory definition of "concealed weapon" in Section 790.001(3)(a), Florida Statutes (1987).

5. Page 98 of the manual provides an instruction based on Section 790.05, Florida Statutes (1981). That law was repealed in 1987; therefore, the instruction should be removed. See Chapter 87-24, Laws of Florida.

6. Page 99 of the manual provides an instruction based on Section 790.07(1) and (2), Florida Statutes. A change in paragraph 1b is proposed as follows:

b. [carried a [weapon] [firearm], which was concealed from the ordinary sight of another person others who might casually observe him.]

The reason for this change is the same as the one in paragraph 4 above.

7. Page 102 provides an instruction on Section 790.15, Florida Statutes. The committee recommends amending paragraphs a and b of the instruction as follows:

a. [(Defendant) knowingly discharged a firearm in a public place.]

b. [(Defendant) knowingly discharged a firearm on the right of way of a paved road, highway or street.]

The word "knowingly" is included in paragraph c of the current instruction and should be inserted in paragraphs a and b as shown.

8. Regarding page 103 of the manual, paragraph 3b should be amended as follows:

b. [a disruption of governmental commerce.]

Although the wording of the Section 790.161, Florida Statutes, may be ambiguous, the committee believes that "governmental" modifies only "operations" and not "commerce."

9. Pages 111 and 112 provide instructions for Sections 790.221 and 790.23, Florida Statutes, respectively. The committee proposes the addition of a definition of "possess" to those instructions. The definition proposed is the same as the one used in the drug possession instructions. Exhibit 3 provides the full instructions with the definition of "possess" added. Paragraph 2 of the instruction on Section 790.23 also is amended to conform to the statute.

10. Page 147 provides an instruction on theft. Section 812.014, Florida Statutes, was amended by Chapter 87-376, Laws of Florida. A revised instruction to incorporate the changes in the law is provided in Exhibit 4.

11. The instructions on pages 150 and 151 cover dealing in stolen property. The effect of Section 812.028(3), Florida Statutes, is not provided for in the current instructions. The amendments shown in Exhibit 5 are intended to incorporate that statute.

12. The robbery instruction on page 155 of the manual needs to conform to Section 812.13, Florida Statutes, as amended by Chapter 87-315, Laws of Florida. Exhibit 6 provides the proposed instruction.

13. Pages 163 and 164 provide the instruction for contributing to delinquency and to dependency. The wording of the instruction on page 163 does not need to be revised. Most of the wording on page 164, however, is based on former delinquency and dependency definitions that have been revised several times. The committee intends to propose a revised instruction in the future but, for now, recommends the deletion of the instruction on page 164. Instead, a note should replace the instruction on that page as follows:

Note to Judge: Prepare the definition of "delinquency" or of "dependency" based on the statutory definitions in effect at the time of the alleged offense. See F.S. 39.01.

14. Page 216 provides an instruction on bookmaking. Section 849.25, Florida Statutes, was amended by Chapter 87-243, Section 48, Laws of Florida. A revised instruction incorporating the 1987 amendments is proposed. See Exhibit 7.

15. Pages 219 through 250 provide instructions for drug abuse and drug trafficking offenses under Chapter 893, Florida Statutes. Chapter 87-243, Laws of Florida, amends several statutes covered by those instructions. Revisions to the affected instructions are proposed. See Exhibit 8.

16. Currently there are no instructions for prosecutions under Chapter 895, Florida Statutes. Proposed instructions are provided in Exhibit 9.

17. Pages 261 and 262 provide a comment on the schedule of lesser included offenses. Based on changes in the law since 1981, the committee has revised the comment. See Exhibit 10 for the revised comment.

18. The "SCHEDULE OF LESSER INCLUDED OFFENSES" is provided on pages 263 through 284 of the manual. The committee has not reviewed each offense listed in the schedule in light of recent opinions that may affect the table. Nevertheless, some needed changes have been identified by the committee as shown in Exhibit 11.

Respectfully submitted, /s/ Harry Lee Coe III Harry Lee Coe, Chair

PROPOSED AMENDMENTS TO FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (88-2) _________________________________________________________________ TO: CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA

Your committee met on November 18, 1988, to review 1988 legislation that affects the standard jury instructions. Several changes in the instructions are needed, and the committee believes they can be made without following the normal procedure of publishing proposed instructions in The Florida Bar News. The committee requests that those changes (provided below) be considered along with the proposals in the committee's previous report (88-1).

1. The aggravating circumstances for the jury to consider in a capital offense are provided on pages 78 and 79 of the manual. An instruction on a new circumstance is proposed in the previous report (88-1). Chapter 88-381, § 10, Laws of Florida, created Section 921.141(5)(k), a new aggravating circumstance. The committee, therefore, proposes adding another new paragraph as follows:

11. The victim of the crime for which the defendant is to be sentenced was an elected or appointed official engaged in the performance of his official duties and the crime was related, in whole or in part, to the victim's official capacity.

2. Section 784.045, Florida Statutes, was amended by Chapter 88-344, § 3, Laws of Florida, to create a new aggravated battery offense. The committee, therefore, proposes that paragraph 2 of its instruction on page 90 of the manual be amended as follows:

2. (Defendant) in committing the battery

a. [intentionally or knowingly caused

[great bodily harm to (victim)]]

[permanent disability to (victim)]]

[permanent disfigurement to (victim)]]

b. [used a deadly weapon.]

c. [knew or should have known that (victim) was pregnant.]

3. The court in State v. Potts 526 So.2d 63 (Fla. 1988) found section 790.07(2) "unconstitutional to the extent it purports to penalize a person who is under indictment." Paragraph 2 of the jury instruction on page 99 of the manual, therefore, should be amended by striking "[under indictment or information]" and by removing the brackets from "[committing or attempting to commit the felony of (felony alleged)]."

4. Section 790.161, Florida Statutes, was amended by Chapter 88-381, § 44, Laws of Florida. The instruction on page 103 of the manual, therefore, should be amended as shown in Exhibit 12, which incorporates another change suggested in the (88-1) report.

5. Section 790.162, Florida Statutes, was amended by Chapter 88-381, § 45, Laws of Florida. The instruction on page 104 of the manual, therefore, should be amended as shown in Exhibit 13.

6. Chapter 88-381, § 46, Laws of Florida, amends Section 806.111(1)(b), Florida Statutes, which defines "fire bomb." The definition in the instruction on page 129 of the manual should be amended to conform to the statute as follows:

"A `fire bomb' is a container containing flammable liquid or combustible liquid, or any incendiary chemical mixture or compound, having a wick or similar device capable of being ignited or other means capable of causing ignition; but no device commercially manufactured primarily for the purpose of illumination, heating or cooking, shall be deemed to be such a fire bomb."

7. In Thomas v. State, 531 So.2d 708 (Fla. 1988), the court overruled previous decisions that distinguished between common and uncommon devices as burglary tools. The instruction on page 138 of the manual should be revised to conform to that decision. Paragraph 2b of the instruction should be removed, and the instructions in the margin related to paragraph 2 should be deleted. The "a" in front of the remaining paragraph 2 also should be deleted.

8. Chapter 88-151, § 4, Laws of Florida, amends Section 827.04, Florida Statutes, concerning child abuse. The instruction on page 161 of the manual needs to be amended to conform to the statute. Paragraph 1 of the instruction, therefore, should be amended to read:

1. (Defendant) [willfully] [by culpable negligence] [knowingly]:

[[deprived (victim) of] [allowed (victim) to be deprived of] necessary food, clothing, shelter or medical treatment.] [inflicted or permitted the infliction of [physical] [mental] injury to (victim).]

9. Chapter 88-381, § 51, Laws of Florida, amends Section 843.02, Florida Statutes, concerning the offense of resisting an officer without violence. To conform the instruction to the statute, paragraph 1 on page 196 of the manual should be revised to read:

1. (Defendant) [resisted] [obstructed] [opposed] (victim).

10. Chapter 88-122, § 78, Laws of Florida, amended Section 951.23, Florida Statutes, adding "a county residential probation center" to the definition of "county detention facility." The instruction on page 257 of the manual should be amended to conform to the statute as shown in Exhibit 14.

11. The committee in its previous report (88-1) recommended the addition of a note regarding all drug trafficking offenses listed in the Schedule of Lesser Included Offenses. The note cites " Dauphin v. State, 511 So.2d 1037 (Fla. 4th DCA 1987), cert. pending (case No. 70,995, Fla.S.Ct.)." The correct case name actually is "Da ophin v. State" but of more importance the decision of the district court was reversed on October 20, 1988. The note, therefore, should not be approved.

The committee is drafting other amendments to existing instructions and some new instructions based on 1988 legislation, all of which need to be published in the Bar News. Those instructions will be submitted no sooner than March 1989.

Respectfully submitted, /s/ Harry Lee Coe Harry Lee Coe, Chair

We approve for publication these recommended amendments. We caution all interested persons, however, that the notes and comments 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 committee expressed concern over the constitutionality of chapter 87-243, section 42, Laws of Florida, creating section 777.201(2), which places the burden of proof of entrapment on the defendant. Therefore, the committee offered alternative final paragraphs of the instruction, one of which retained the existing instruction which requires the state to prove beyond a reasonable doubt that the defendant was not entrapped, and the other which requires the defendant to prove entrapment by a preponderance of the evidence. For the purpose of adopting standard jury instructions, the constitutionality of a statute must be assumed unless it has been declared unconstitutional. The Court deems it inappropriate to pass on the constitutionality of a statute except in adversary proceedings. Therefore, for offenses occurring on or after October 1, 1987, the Court has accepted the statutory alternative which places the burden of proof of entrapment on the defendant.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. Note to Judge This instruction is for offenses occurring before October 1, 1987. It is not entrapment if (defendant) had the predisposition to commit (crime charged). (Defendant) had the predisposition if, before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant), he had a readiness or willingness to commit (crime charged) if the opportunity presented itself. However I also 776.05felon person who has been convicted of a felony and . or felon person who has been convicted of a felony and 776.051. and suspected who is fleeing suspected from justice n law enforcement is fleeing justified in the can of any likely Tennessee v. Garner to cause death or great bodily harm. (U.S.Sup.Ct. 1985), 53 LW 4410 or law enforcement has probable or (c) cause to reasonably s suspected fleeing death or , either . ; or the suspected felon has threatened the law enforcement officer with a weapon. (c) law enforcement officer has probable cause to reasonably s that suspected fleeing the to another person. Read if 1(a), (b) or If the law enforcement officer has an opportunity to (c) given do so he must give the suspected felon warning that he is about to use force likely to cause death or great bodily harm. 790.221 790.001 790.001To "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. 790.23 a concealed weapon. another person. others who might casually observe him. 790.001To "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. 812.014The punishment provided by law for the crime of theft is greater depending upon the value of the property taken. Therefore, I a. [The value of the property taken was $100,000 or more.] a. but less than $100,000 b. c. c. d. e. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a horse.] [a cow.] [a pig.] [a kind of livestock.] [a fire extinguisher.] [2000 or more pieces of fruit.] [taken from a posted construction site.]] 812.022 812.022 812.012 812.012 812.012 Florida v. Harris, 356 So.2d 315 812.012 $100 $300. 812.019 812.012812.028(3) or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property. 812.012 812.019 812.012 812.012812.028(3) or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property. 812.012 812.13The taking was by by person alleged was used in the course of the taking. (Defendant) took the (money or property described in the charge) from the person or custody of (person alleged) and at the time of the taking intended to permanently deprive (person alleged) of the (money or property). The taking was with the intent to permanently [deprive (victim) of his right to the property or any benefit from it.] [appropriate the property of (victim) to his own use or to the use of any person not entitled to it.] "In the course of the taking" means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute continuous series of acts or events. 790.001 849.25two three was engaged in the business or profession of gambling. While so engaged, (defendant) 3. or .] [between men, beasts [ , [ ] or [ . , F.S. 849.25(1)(b) To determine whether (defendant) was engaged in the offense of bookmaking the following factors shall be considered: 1. Taking advantage of betting odds created to produce a profit for the bookmaker or charging a percentage on accepted wagers. 2. Placing all or part of accepted wagers with other bookmakers to reduce the chance of financial loss. 3. Taking or receiving more than five wagers in any single day. 4. Taking or receiving wagers totaling more than $500 in any single day, or more than $1,500 in any single week. 5. Engaging in a common scheme with two or more persons to take or receive wagers. 6. Taking or receiving wagers on both sides of a contest at the identical point spread. 7. Any other factor relevant to establishing that the operating procedures of such person are commercial in nature. Note to Judge It is the committee's opinion that F.S. 849.25(1)(c) is for the judge and not the jury. Therefore (1)(c) should not be read to the jury. PURCHASE, 893.13[purchased] [possessed with intent to purchase] 893.02(11) (12) 893.02(4) (5) 893.13f g State v. Medlin, 273 So.2d 394 PURCHASE, 893.13[purchased] 893.02(4) (5) State v. Medlin, 273 So.2d 394 DELIVERY TO A MINOR 893.13[ (person alleged) a person under the age of eighteen years ] Give la, lb b. [(Defendant) used or hired a person under or lc as the age of eighteen years as an agent or applicable employee in the sale or delivery of a certain substance.] c. [(Defendant) used a person under the age of eighteen years to assist in avoiding detection or apprehension for (violation of F.S. Chapter 893 alleged).] When the delivery was made over old of age or older at the time and (person alleged) was under eighteen years old. 893.02(4) (5) NEW INSTRUCTION 893.13 893.02(4) (5) State v. Medlin, 273 So.2d 394 893.13(e) State v. Medlin, 273 So.2d 394 893.13(f) (g) 893.135three four [purchased] Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2). knew the substance was intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] 893.02(11) (12) 893.02(4) (5) , State v. Medlin, 273 So.2d 394 The punishment provided by law for the crime of Trafficking in Cannabis is greater depending upon the amount of the substance involved. Therefore, 893.135three four [purchased] Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2). knew the substance was intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] 893.02(11) (12) 893.02(4) (5) State v. Medlin, 273 So.2d 394 The punishment provided by law for the crime of Trafficking in Cocaine is greater depending upon the amount of the substance involved. Therefore, 893.135three four [purchased] Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2). know the substance was intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] 893.02(11) (12) 893.02(4) (5) State v. Medlin, 273 So.2d 394 The punishment provided by law for the crime of Trafficking in Illegal Drugs is greater depending upon the amount of the substance involved. Therefore, 893.135three four [purchased] Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2). knew the substance was intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] 893.02(11) (12) F.S. 893.02 (4) (5) State v. Medlin, 273 So.2d 394 The punishment provided by law for the crime of Trafficking in Phencyclidine is greater depending upon the amount of the substance involved. Therefore, 893.135three four [purchased] involved Note to Judge If applicable, the judge should instruct the jury on F.S. 893.135(2). knew the substance was intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] 893.02(11) (12) F.S. 893.02(5) State v. Medlin, 273 So.2d 394 The punishment provided by law for the crime of Trafficking in Methaqualone is greater depending upon the amount of the substance involved. Therefore, 895.03 895.02 895.02 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.03 895.02 895.02 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.03 895.02 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.02 895.03 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.02 895.03 895.02 895.01 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.03 895.02 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 895.03 777.04 State v. Bauman, 425 So.2d 32 895.02 State v. Nishi, 521 So.2d 252 State v. Bowen, 413 So.2d 798 Brown v. State, 206 So.2d 377 Brown Brown Ray v. State, 403 So.2d 956 State v. Carpenter, 417 So.2d 986 (Fla. 1982). e.g., F.S. 810.02 Knight v. State, 338 So.2d 201 782.04 782.04 782.04 782.07 782.04 782.071 784.05 784.045 784.021 784.03 784.011 None 782.04Second degree (depraved mind) 782.04 782.04Manslaughter — 782.07 782.04 782.04 782.07 784.045 784.021 784.03 784.011 782.07 782.04 782.04 782.071 784.05 784.045 784.021 784.03 784.011fn____ 782.04 782.04 784.021 784.03 784.011 782.07 784.021 784.03 784.011 782.071 784.05 784.05fn_____ 784.011 784.011 784.021 790.10 790.15 784.011 784.021 784.03 784.03 784.045 784.03 784.045 790.10 790.15 784.05 784.05 784.07 784.011 784.07 784.03fn_______ 787.01 787.02 784.021 784.03 784.011 787.02 784.011 784.03 790.01 790.01790.05 790.06 790.07 790.01 790.10 790.07 790.01 790.10 790.15 790.17 790.18 790.23 790.01 790.01 784.03 794.011 784.011 784.021 784.045 784.03 794.011 784.045 784.021 784.011 794.011 784.03 794.011 784.021 784.011 794.011 784.03 794.011 784.011 800.02 800.03 800.02 784.011 784.03 800.04 800.02 806.01 806.01 806.13 806.13 806.13 806.13 806.13 806.13 806.13 806.13 806.13 806.13 810.02 810.02 810.02 810.08 810.08 810.02 810.02 810.08 810.08 810.02 810.08 810.06 810.08 810.09 812.014 812.014Grand theft — third degree 812.014(2)(c) 812.014 Gilford v. State, 313 So.2d 729 812.081grand 812.014theft — third degree — 812.014(2)(c) 812.014(c) (d) Trade secrets — 812.081 Grand theft — third If value is alleged Petit degree 812.014(2)(c) theft — 812.014(2) (c) (d) Trade secrets — 812.081 812.014(e) (d) 812.016 812.019 812.019 812.019 812.13 812.13 812.13 812.014 812.014(e) (d) 812.014Grand theft 3d degree — 812.014(2)(c) 784.03 784.045 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 812.13 812.13 812.014(e) (d) 812.014 812.014Grand theft 3d degree 812.014(2)(c) 784.03 784.045 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 812.13 812.014(c) (d) 812.014 812.014Grand theft 3d degree — 812.014(2)(c) 784.03 784.011 784.021 836.05 Davis v. State, 277 So.2d 300 827.04 827.04 827.04 831.01 King v. 831.02 State, 317 So.2d 852 832.04 832.04 832.041 832.04 832.041 832.05 832.05 832.05 832.05 837.012 837.02 837.021 837.05 837.06 838.015 838.016 838.021 838.12 838.12 849.09 849.01 849.09 849.11 849.02 849.09 849.02 849.04 849.07 849.11 849.08 849.09 849.09 849.09 849.09 849.09 849.09 849.09 849.11 849.231 849.09 849.09 849.09 849.09 849.09 849.09 849.09 849.231 849.09 849.09 849.09 849.09 849.09 849.09 849.09 849.231 849.09 849.09 849.09 849.09 849.09 849.09 849.09 849.11 849.231 849.09 849.09 849.09 849.25 849.25 849.25 316.193 316.193 316.193 316.193 316.193 316.193 316.193 316.193 782.071 316.193 316.193 893.13(f) (g) 893.13(e) (f) 893.13 893.13 893.13(e) (f) 893.13 893.13 893.13(f) (g) 893.13 893.13(e) (f) 893.13(f) (g) 893.13 893.13(f) (g) 893.13(e) (f) 893.13(f) (g) 893.13 893.147 893.147 893.147 893.135 893.13 893.13 893.13(e) (f) 893.13fn_________ 893.135 893.13 893.13 893.13(e) (f) fn_________ 893.135 893.13 893.13 893.13(e) (f) fn_________ 893.135 893.13 893.13 893.13(e) (f) fn_________ 893.135 893.13 893.13 893.13(e) (f) Contraband — 951.22 The nature of the contraband may give rise to misdemeanor, lesser included offenses See Cooper v. State, 512 So.2d 1071 (Fla. 1st DCA 1987); Moore v. State, 512 So.2d 1149 (Fla. 1st DCA 1987). , PROJECTING, 790.161[projected] throw, place, project, or wrongfully governmental 790.001, PROJECT, 790.162 [project] 790.001 951.22Definitions F.S. 951.23(1) , a county residential probation center, Definitions

But see Martin v. State, 342 So.2d 501 (Fla. 1977); Drotar v. State, 433 So.2d 1005 (Fla. 3d DCA 1983), holding that nonhomicide lessers should not be given when the only issue is whether the death was a lawful or unlawful homicide, but should be given if there is an issue of causation, i.e., whether death was caused by defendant's act or some other unconnected cause. When a nonhomicide offense is a necessarily lesser included offense of the homicide offense, an instruction on the lesser may be necessary. See certified question in Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987).

See Scurry v. State, 521 So.2d 1077 (Fla. 1988).

But see Martin v. State, 342 So.2d 501 (Fla. 1977).

See Taylor v. State, 444 So.2d 931 (Fla. 1984).

But see Smith v. State, 330 So.2d 256 [526] (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976).

But see Martin v. State, 342 So.2d 501 (Fla. 1977).

Provided that charged offense is a second degree felony under section 893.13(1)(a)1.

An instruction of simple possession may be required. See Dauphin [Daophin] v. State, 511 So.2d 1037 (Fla. 4th DCA 1987), cert. pending (Case No. 70,995, Fla.S.Ct.).

EXHIBIT 1 3.04(c)(1) ENTRAPMENT The defense of entrapment has been raised. This means that (defendant) claims he had no prior intention to commit the offense and that he committed it only because he was persuaded or caused to commit the offense by law enforcement officers. (Defendant) was entrapped if: 1. he had no prior intention to commit (crime charged), but 2. he was persuaded, induced or lured into committing the offense and 3. the person who persuaded, induced or lured him into committing the offense was a law enforcement officer, or someone acting for the officer. When claim of t is not entrapment merely because a entrapment no defense law enforcement officer in a good faith attempt to Give a, b or c as detect crime: applicable a. [provided the defendant the opportunity, means and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise] b. [used tricks, decoys or subterfuge to expose the defendant's criminal acts.] c. [was present and pretending to aid or assist in the commission of the offense.] On the issue of entrapment, the State must convince you beyond a reasonable doubt that the defendant was not entrapped. (NEW INSTRUCTION) 3.04(c)(2) ENTRAPMENT Note to Judge This instruction is to be used for offenses occurring on or after October 1, 1987. The defense of entrapment has been raised. (Defendant) was entrapped if 1. he was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of (crime charged), and 2. he engaged in such conduct as the direct result of such inducement or encouragement, and 3. the person who induced or encouraged him was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and 4. the person who induced or encouraged him employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and 5. (Defendant) was not a person who was ready to commit the crime. It is not entrapment if (defendant) had the predisposition to commit the (crime charged). (Defendant) had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant), he had a readiness or willingness to commit (crime charged) if the opportunity presented itself. It is also not entrapment merely because a law enforcement officer in a good faith attempt to detect crime (a) [provided the defendant the opportunity, means and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.] (b) [used tricks, decoys or subterfuge to expose the defendant's criminal acts.] (c) [was present and pretending to aid or assist in the commission of the offense.] On the issue of entrapment, the defendant must prove to you by a preponderance of the evidence that his criminal conduct occurred as the result of entrapment. EXHIBIT 2 3.04(f) JUSTIFIABLE USE OF FORCE BY LAW ENFORCEMENT OFFICER In making an arrest A law enforcement officer, or any person he has of a felon summoned or directed to assist him, need not retreat F.S. from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any Give if applicable force that he reasonably believes necessary to defend himself or another from bodily harm while making the arrest. That force is also justifiable when necessarily used: 1. in retaking a who has escaped 2. in arresting a who is fleeing from justice. Force in making Use of any force by a law enforcement officer or unlawful arrest any person summoned or directed to assist the law prohibited enforcement officer is not justified if: F.S. (2) Give if 1. The arrest is unlawful applicable 2. It is known by the officer or the person assisting him to be unlawful. In making an arrest 1. In arresting a felon of a , a officer felon use force if Give 1(a), (b) (a) the officer as applicable believe that the felon poses a threat of serious physical harm to the officer or to others Define felon (b) the believe the felon has committed a crime involving infliction or the threatened infliction of serious physical harm POSSESSION OF FORBIDDEN FIREARMS F.S. Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [owned] [had in his care, custody, possession or control] a (firearm alleged). 2. The (firearm alleged) was one that was, or could readily be made, operable. Defenses 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. This law does not apply to antique firearms. Definitions; give as "Care" and "custody" mean immediate charge and applicable control exercised by a person over the named object. The terms care, custody and control may be used interchangeable. A ["short-barreled rifle"] ["short-barreled shotgun"] ["machine gun"] is legally defined as (adapt from F.S. (9), (10) or (11) as required by the allegations). An "antique firearm" is legally defined as (adapt from F.S. (1) as required by the allegations). FELONS POSSESSING WEAPONS F.S. Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) had been convicted of (prior offense). 2. After the conviction (defendant) Give 2a or 2b as a. [owned] [had in his care, custody, applicable possession or control] [a firearm.] [an electric weapon or device] [] b. [carried a (weapon alleged), which was concealed from the ordinary sight of ] Defense If you find that the defendant's civil rights had been restored at the time of the offense, you shall find the defendant not guilty. Definitions "Convicted" means that a judgment has been entered in a criminal proceeding by a competent court pronouncing the accused guilty. A ["firearm"] ["electric weapon or device"] ["concealed weapon"] is legally defined as (adapt from F.S. as required by the allegations). Give if 2b 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. EXHIBIT 4 THEFT F.S. Before you can find the defendant guilty of Theft, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim). 2. He did so with intent to, either temporarily or permanently, [deprive (victim) of his right to the property or any benefit from it.] [appropriate the property of (victim) to his own use or to the use of any person not entitled to it.] Degrees; give if property is of monetary value up to f you find the defendant extent of charge guilty of theft, you must determine by your verdict whether: b. [The value of the property taken was $20,000 or more .] [The value of the property taken was $300 or more but less than $20,000.] [The value of the property taken was less than $300.] Give if applicable Inferences; give if Proof that a person presented false identification applicable not current in respect to name, address, place of F.S. (1) employment or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft. Inferences; give Proof of possession of recently stolen property, if applicable unless satisfactorily explained, give rise to an F.S. (2) inference that the person in possession of the property knew or should have known that the property had been stolen. Definitions; "Obtains or uses" means any manner of: give if applicable F.S. (2) (a) Taking or exercising control over property. (b) Making any unauthorized use, disposition, or transfer of property. (c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise. (d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or 2. Other conduct similar in nature. "Endeavor" means to attempt or try. F.S. (3) "Property" means anything of value, and includes: real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests and claims; and services. F.S. (5) "Services" means anything of value resulting from a person's physical or mental labor or skill, or from the use, possession or presence of property, and includes: repairs or improvements to property; professional services; private, public or government communication, transportation, power, water or sanitation services; lodging accommodations; and admissions to places of exhibition or entertainment. Note to Judge It is error to inform the jury of a prior conviction. Therefore, do not read the allegation of prior conviction or send the information or indictment into the jury room. The historical fact of a previous conviction shall be determined by the judge, and shall thereby fix the degree of the crime. State of (Fla. 1978). F.S. (9) "Value" means The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft or promissory note, the value is the amount due or collectible. In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret. If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than Amounts of value of separate properties, involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several person, may be totaled in determining the grade of the offense. EXHIBIT 5 DEALING IN STOLEN PROPERTY (FENCING) F.S. (1) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [trafficked in] [endeavored to traffic in] (property alleged). 2. (Defendant) knew or should have known that (property alleged) was stolen. Definitions "Property" means anything of value, and includes: F.S. 812-012(3) real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests and claims; and services. F.S. (6) "Stolen property" means property that has been the subject of any criminally wrongful taking F.S. (7) "Traffic" means: to sell, transfer, distribute, dispense or otherwise dispose of property; and to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property. DEALING IN STOLEN PROPERTY (ORGANIZING) F.S. (2) Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [initiated] [organized] [planned] [financed] [directed] [managed] [supervised] the theft of (property alleged). 2. (Defendant) trafficked in the (property alleged). Definitions "Property" means anything of value, and includes: F.S. (3) real property, including things growing on, affixed on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests and claims; and services. F.S. (6) "Stolen property" means property that has been the subject of any criminally wrongful taking F.S. (7) "Traffic" means: to sell, transfer, distribute, dispense or otherwise dispose of property; and to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property. EXHIBIT 6 ROBBERY F.S. Before you can find the defendant guilty of Robbery, the State must prove the following four elements beyond a reasonable doubt: Elements 1. (Defendant) took the (money or property described in charge) from the person or custody of (person alleged). 2. Force, violence, assault, or putting () in fear 3. The property taken was of some value. 4. Title to property In order for a taking of property to be robbery, it is not necessary that the person robbed be the actual owner of the property. It is sufficient if the victim has the custody of the property at the time of the offense. Force; give The taking must be by the use of force or violence if applicable or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so that he does not resist. The law does not require that the victim of robbery resist to any particular extent or that he offer any actual physical resistance if the circumstances are such that he is placed in fear of death or great bodily harm if he does resist. But unless prevented by fear there must be some resistance to make the taking one done by force or violence. Victim unconscious; It is also robbery if a person, with intent to give if applicable take the property from a victim, administers any substance to another so that the victim becomes unconscious and then takes the property from the person or custody of the victim. Taking In order for a taking by force, violence or putting in fear to be robbery, it is not necessary that the taking be from the person of the victim. It is sufficient if the property taken is under the actual control of the victim so that it cannot be taken without the use of force, violence or intimidation directed against the victim. Enhanced penalty; The punishment provided by law for the crime of give if applicable robbery is greater if "in the course of committing the robbery" the defendant carried some kind of weapon. An act is "in the course of committing the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or commission. Therefore, if you find the defendant guilty of robbery, you must then consider whether the State has further proved those aggravating circumstances and reflect this in your verdict. With a firearm If you find that the defendant carried a firearm in the course of committing the robbery, you should find him guilty of robbery with a firearm. With a deadly If you find that the defendant carried a weapon (deadly weapon described in charge) in the course of committing the robbery and that the (deadly weapon described in charge) was a deadly weapon, you should find him guilty of robbery with a deadly weapon. With other If you find that the defendant carried a weapon weapon that was not a [firearm] [deadly weapon] in the course of committing the robbery, you should find him guilty of robbery with a weapon. With no firearm If you find that the defendant carried no or weapon firearm or weapon in the course of committing the robbery, but did commit the robbery, you should find him guilty only of robbery. Definitions A "firearm" is legally defined as (adapt from F.S. as required by allegations). A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm. A "weapon" is legally defined to mean any object that could be used to cause death or inflict serious bodily harm. Also define "attempt" (see page 55). EXHIBIT 7 BOOKMAKING F.S. (1) Before you can find the defendant guilty of Bookmaking, the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) 2. took or received a bet or wager. The bet or wager was upon the result of [a trial or contest of skill, speed, power, or endurance of [man] [beast] fowl]motor vehicles mechanical apparatuses]] [a chance, casualty or unknown or contingent event.] EXHIBIT 8 DRUG ABUSE — SALE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT F.S. (1)(a) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance. Before you can find the defendant guilty of (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt: Elements 1. (Defendant) [sold] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance. 2. The substance was (specific substance alleged). Give if possession 3. (Defendant) had knowledge of the presence of is charged the substance. Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Notes to Judge 1. Note F.S. (1)()() if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis. 2. If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). DRUG ABUSE — SALE, DELIVERY OR POSSESSION IN EXCESS OF TEN GRAMS F.S. (1)(b) Note to Judge This instruction will have to be altered if a combination of substances is alleged. Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance. Before you can find the defendant guilty of (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt: Elements 1. (Defendant) [sold] [delivered] [possessed] more than ten grams of a certain substance. 2. The substance was (specific substance alleged). Give if possession 3. (Defendant) had knowledge of the presence of is charged the substance. charged Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Deliver F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). DRUG ABUSE — F.S. (1)(C) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance. Before you can find the defendant guilty of (crime charged), the State must prove the following three elements beyond a reasonable doubt: Elements 1. a. (Defendant) delivered a certain substance to . 2. The substance was (specific substance alleged). 3. (Defendant) was eighteen years . Definitions F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. DRUG ABUSE — POSSESSION ON OR NEAR SCHOOL F.S. (1)(e) Before you can find the defendant guilty of (crime charged) the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) [sold [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] 2. a controlled substance (specific substance alleged) 3. in, on, or within 1000 feet of the real property comprising a public or private elementary, middle, or secondary school. Definitions: give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Deliver F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). DRUG ABUSE — POSSESSION F.S. (1)(f) Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance. Before you can find the defendant guilty of (crime charged), the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) possessed a certain substance. 2. The substance was (specific substance alleged). 3. (Defendant) had knowledge of the presence of the substance. Definition 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 be inferred or assumed. Note to Judge 1. If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). 2. Note F.S. (1) if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis. TRAFFICKING IN CANNABIS F.S. (1)(a) Certain drugs and chemical substances are by law known as "controlled substances." Cannabis is a controlled substance. Before you can find the defendant guilty of Trafficking in Cannabis, the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was cannabis. 3. The quantity of the cannabis involved was in excess of 100 pounds. 4. (Defendant) (specific substance alleged). Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver F.S. "Deliver" or "delivery" means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). Enhanced penalty; give if applicable up to extent of charge If you find the defendant guilty of trafficking in cannabis you must determine by your verdict whether: a. [The quantity of the substance involved was in excess of 100 pounds but less than 2,000 pounds.] b. [The quantity of the substance involved was 2,000 pounds or more but less than 10,000 pounds.] c. [The quantity of the substance involved was 10,000 pounds or more.] TRAFFICKING IN COCAINE F.S. (1)(b) Certain drugs and chemical substances are by law known as "controlled substances." Cocaine or any mixture containing cocaine is a controlled substance. Before you can find the defendant guilty of Trafficking in Cocaine, the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was [cocaine] [a mixture containing cocaine]. 3. The quantity of the substance involved was 28 grams or more. 4. (Defendant) (specific substance alleged). Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). Enhanced penalty; give if applicable up to extent of If you charge find the defendant guilty of trafficking in cocaine, you must determine by your verdict whether: a. [The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more.] TRAFFICKING IN ILLEGAL DRUGS F.S. (1)(c) Certain drugs and chemical substances are by law known as "controlled substances." (specific substance alleged) is a controlled substance. Before you can find the defendant guilty of Trafficking in Illegal Drugs, the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was [specific substance alleged).] [a mixture containing (specific substance alleged)]. 3. The quantity of the substance involved was four grams or more. 4. (Defendant) (specific substance alleged). Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver F.S. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). Enhanced penalty; give if applicable up to extent of charge If you find the defendant guilty of trafficking in illegal drugs, you must determine by your verdict whether: a.[The quantity of the substance involved was in excess of 4 grams but less than 14 grams.] b.[The quantity of the substance involved was 14 grams or more but less than 28 grams.] c.[The quantity of the substance involved was 28 grams or more.] TRAFFICKING IN PHENCYCLIDINE F.S. (1)(d) Certain drugs and chemical substances are by law known as "controlled substances." Phencyclidine or any mixture containing phencyclidine is a controlled substance. Before you can find the defendant guilty of Trafficking in Phencyclidine, the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was [phencyclidine] [a mixture containing phencyclidine]. 3. The quantity of the phencyclidine involved was 28 grams or more. 4. (Defendant) (specific substance alleged). Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). Enhanced penalty; give if applicable up to extent of charge If you find the defendant guilty of trafficking in phencyclidine, you must determine by your verdict whether: a. [The quantity of the substance involved was in excess of 28 grams but less than 200 grams.] b. [The quantity of the substance involved was 200 grams or more but less than 400 grams.] c. [The quantity of the substance involved was 400 grams or more.] TRAFFICKING IN METHAQUALONE F.S. (1)(e) Certain drugs and chemical substances are by law known as "controlled substances." Methaqualone or any mixture containing methaqualone is a controlled substance. Before you can find the defendant guilty of Trafficking in Methaqualone the State must prove the following elements beyond a reasonable doubt: Elements 1. (Defendant) knowingly [sold] [manufactured] [delivered] [brought into Florida] [possessed] a certain substance 2. The substance was [methaqualone] [a mixture containing methaqualone]. 3. The quantity of the methaqualone was 200 grams or more. 4. (Defendant) (specific substance alleged). Definitions; give as applicable Sell "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. Manufacture F.S. "Manufacture" means the production, preparation, (a) packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. Deliver "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Possession 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. Note to Judge If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See (Fla. 1973). Enhanced penalty; give if applicable up to extent of charge If you find the defendant guilty of trafficking in methaqualone you must determine by your verdict whether: a. [The quantity of the substance involved was in excess of 200 grams but less than 5 kilograms.] b. [The quantity of the substance involved was 5 kilograms or more but less than 25 kilograms.] c. [The quantity of the substance involved was 25 kilograms or more.] EXHIBIT 9 RICO — USE OR INVESTMENT OF PROCEEDS FROM PATTERN OF RACKETEERING ACTIVITY F.S. (1) Before you can find the defendant guilty of Unlawful Use or Investment of Proceeds from a Pattern of Racketeering Activity, the State must prove the following four elements beyond a reasonable doubt: Elements 1. At least two of the following incidents occurred (read incident alleged in information). Modify 1 and 2 if 2. Of those incidents which did occur, at least only two incidents two of them had the same or similar [intents] alleged [results] [accomplices] [victims] [methods of commission] or were interrelated by distinguishing characteristics and were not isolated incidents. 3. (Defendant) with criminal intent received proceeds which were derived directly or indirectly from such incidents. 4. (Defendant) [used] [invested] some of these proceeds [or proceeds derived from the investment or use thereof] either directly or indirectly [in acquiring some right, title, equity or interest in real property] [in establishing or operating an enterprise]. Note to Judge Instruct as to five-year limitation period (F.S. (4)) if appropriate. Note to Judge Define the crimes alleged as incidents. Definitions Give in every "Receiving proceeds with criminal intent" means case that the defendant, at the time he received the proceeds, either knew the source of the proceeds or had his suspicions aroused but deliberately failed to make further inquiry as to the source of the proceeds. Give as "Real property" means land and whatever is erected applicable on it. It includes but is not limited to any lease F.S. (9) or mortgage or other interest in that property. Give as applicable F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. RICO — USE OR INVESTMENT OF PROCEEDS FROM FROM COLLECTION OF UNLAWFUL DEBT F.S. (1) Before you can find the defendant guilty of Unlawful Use or Investment of Proceeds from Collection of Unlawful Debt, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) with criminal intent received proceeds which were derived directly or indirectly through the collection of an unlawful debt. 2. (Defendant) [used] [invested] some of these proceeds [or proceeds derived from the investment or use thereof] either directly or indirectly [in acquiring some right, title, equity or interest in real property] [in establishing or operating an enterprise]. Definitions Give in every "Receiving proceeds with criminal intent" means case that the defendant, at the time he received the proceeds, either knew the source of the proceeds or had his suspicions aroused but deliberately failed to make further inquiry as to the source of the proceeds. F.S. (2) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in Florida in whole or in part because the debt was incurred or contracted in violation of the following law: (recite applicable section and define crime). Give as applicable F.S. (9) "Real property" means land and whatever is erected on it. It includes but is not limited to any lease or mortgage or other interest in that property. Give as applicable F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. RICO — ACQUISITION OR MAINTENANCE THROUGH PATTERN OF RACKETEERING ACTIVITY F.S. (2) Before you can find the defendant guilty of unlawfully [acquiring] [maintaining] and interest in or control of [an enterprise] [real property], the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) engaged in at least two of the following incidents (read incident alleged in information). Modify 1 and 2 2. Of those incidents in which (defendant) was if only two engaged, at least two of them had the same or incidents similar [intents] [results] [accomplices] alleged [victims] [methods of commission] or were interrelated by distinguishing characteristics and were not isolated incidents. 3. As a result of such incidents (defendant) [acquired] [maintained], directly or indirectly, interest in or control of [an enterprise] [real property]. Note to Judge Instruct as to five-year limitation period (F.S. (4)) if appropriate. Note to Judge Define the crimes alleged as incidents. Definitions Give as applicable F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. Give as applicable F.S. (9) "Real property" means land and whatever is erected on it. It includes but is not limited to any lease or mortgage or other interest in that property. RICO — ACQUISITION OR MAINTENANCE THROUGH COLLECTION OF UNLAWFUL DEBT F.S. (2) Before you can find the defendant guilty of unlawfully [acquiring] [maintaining] and interest in or control of [an enterprise] [real property], the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [acquired] [maintained], directly or indirectly, interest in or control of [an enterprise] [real property]. 2. He did so through the knowing collection of an unlawful debt. Definitions Give in every case "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in Florida in whole or in part because the debt was incurred or contracted in violation of the following law: (recite applicable section and define crime). Give as applicable F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. Give as applicable F.S. (9) "Real property" means land and whatever is erected on it. It includes but is not limited to any lease or mortgage or other interest in that property. RICO — CONDUCT OR PARTICIPATION IN AN ENTERPRISE THROUGH COLLECTION OF UNLAWFUL DEBT F.S. (3) Before you can find the defendant guilty of unlawfully [conducting] [participating] in an enterprise, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) was [employed by] [associated with] an enterprise. Defendant may or 2. (Defendant) [conducted] [participated], may not be directly or indirectly, in such enterprise "enterprise." through the knowing collection of an unlawful See note below. debt. Definitions F.S. (2) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in Florida in whole or in part because the debt was incurred or contracted in violation of the following law: (recite applicable section and define crime). F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. RICO — CONDUCT OR PARTICIPATION IN AN ENTERPRISE THROUGH A PATTERN OF RACKETEERING ACTIVITY F.S. (3) Before you can find the defendant guilty of unlawfully [conducting] [participating] in an enterprise, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) was [employed by] [associated with] an enterprise. Defendant may or 2. (Defendant) [conducted] [participated], may not be directly or indirectly, in such enterprise by "enterprise." engaging in at least two of the following See note below. incidents (read incidents alleged in information) 3. Of those incidents in which (defendant) was engaged, at least two of them had the same or similar [intents] [results] [accomplices] [victims] [methods of commission] or were interrelated by distinguishing characteristics and were not isolated incidents. Note to Judge Instruct as to five-year limitation period (F.S. (4)) if appropriate. Note to Judge Define the crimes alleged as incidents. Definitions Give as applicable F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. CONSPIRACY TO ENGAGE IN PATTERN OF RACKETEERING ACTIVITY F.S. (4) A "conspiracy" is a combination or agreement of two or more persons to join together to attempt to accomplish an offense which would be in violation of the law. It is a kind of "partnership in criminal purposes" in which each member becomes the agent of every other member. The evidence in the case need not show that the alleged members of the conspiracy entered into any express or formal agreement or that they directly discussed between themselves the details of the scheme and its purpose or the precise ways in which the purpose was to be accomplished. Neither must it be proved that all of the persons charged to have been members of the conspiracy were such nor that the alleged conspirators actually succeeded in accomplishing their unlawful objectives nor that any alleged member of the conspiracy did any act in furtherance of the conspiracy. What the evidence in the case must show beyond a reasonable doubt before you may find the defendant guilty of conspiring to violate the RICO Act is: 1. Two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, namely to engage in a "pattern of racketeering activity" as charged in the Information; and 2. The defendant knowingly and willfully became a member of such conspiracy; and 3. At the time the defendant joined such conspiracy, he did so with the specific intent either to personally engage in at least two incidents of racketeering, as alleged in the Information, or he specifically intended to otherwise participate in the affairs of the "enterprise" with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering, as alleged in the Information, as part of a "pattern of racketeering activity." A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy, even though he did not participate before and even though he played only a minor part. Of course, mere presence at the scene of a transaction or event or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of a conspiracy does not thereby become a conspirator. Give if applicable It is a defense to the charge of conspiracy to Defense engage in a pattern of racketeering activity that F.S. (5)(c) (defendant), after knowingly entering into such a conspiracy with one or more persons, thereafter persuaded such persons not to engage in such activity or otherwise prevented commission of the offense. In this regard you are instructed that a mere endeavor to dissuade one from engaging in such activity is insufficient. Note to Judge An endeavor to dissuade a coconspirator is insufficient to constitute the statutory defense of withdrawal. , 34 (Fla. 4th DCA 1982). Definitions: "Pattern of racketeering activity" means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents. F.S. (3) "Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of Florida, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and includes lawful as well as unlawful enterprises and governmental as well as other entities. Note to Judge Whether an individual can be an enterprise see (Fla. 3d DCA 1988) and (Fla. 1st DCA 1983), rev. den. 424 So.2d 760. EXHIBIT 10 COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees or categories of guilt that may be applicable to a given crime. The supreme court in (Fla. 1968) described these categories as follows: 1. Crimes divisible into degrees 2. Attempts to commit offenses 3. Offenses necessarily included in the offense charged 4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending upon the offense and treating attempts as a category 4 offense, thereby eliminating the first two categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows: 1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses 2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate. In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines: 1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See (Fla. 1981); 2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, uttering, forgery, grand theft second degree, delivery of controlled substance. 3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy. 4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed. 5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses. 6. Under (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense. EXHIBIT 11 SCHEDULE OF LESSER INCLUDED OFFENSES CHARGED OFFENSES CATEGORY 1 CATEGORY 2 First degree Second degree Second degree (premeditated) murder (depraved mind) (felony) murder — — (1) murder — (2) (3) Manslaughter — Third degree (felony) murder — (4) Attempt Vehicular homicide — Culpable negligence — (2) Aggravated battery — Aggravated assault — Battery — Assault — First degree (felony) Attempt murder — (1) Second degree (depraved mind) murder murder — (2) — (2) Second degree (felony) murder — (3) Third degree (felony) murder — (4) Manslaughter — Aggravated battery — Aggravated assault — Battery — Assault — Second degree (depraved Manslaughter — Third degree (felony) mind) murder — murder — (4) (2) Attempt Vehicular homicide — Culpable negligence — (2) Aggravated battery — Aggravated assault — Battery — Assault — Second degree (felony) None Third degree murder — (3) (felony) murder — (4) Attempt Third degree (felony) None Attempt murder — 784.04(4) Aggravated assault — Battery — Assault — Manslaughter — None Attempt Aggravated assault — Battery — Assault — Vehicular homicide — Culpable negligence — (2) Culpable negligence — (1) Assault — None Attempt Aggravated assault — Assault — Attempt (1)(a) Improper exhibition of dangerous weapon or firearms — Discharging firearms in public — Aggravated assault — Assault — Attempt (1)(b) Battery — None Attempt Aggravated battery — Battery — Attempt (1)(a) Aggravated battery Battery — Attempt — (1)(b) Improper exhibition of dangerous weapons or firearms — Discharging firearms in public — Culpable negligence Culpable negligence None — (2) — (1) Assault of law None Attempt enforcement officer — (2) Assault — Battery of law None Attempt enforcement officer — (2) Battery — Kidnapping — False Attempt imprisonment — Aggravated assault — (1)(b) Battery — (1)(a) Assault — False imprisonment None Attempt — Assault — Battery — (1)(a) Carrying concealed None Attempt weapons — (1) Carrying concealed None Attempt firearms — (2) Carrying pistol or None Attempt repeating rifle without first obtaining license — Persons engaged in None Attempt (may be applicable criminal offense, when concealed weapon having weapons is charged) — (1) Carrying concealed weapons — (1) Improper exhibition of dangerous weapons — Persons engaged in None Attempt (may be applicable criminal offense, when concealed firearm having weapons is charged) — (2) Carrying concealed firearm — (2) Improper exhibition of dangerous firearms — Discharging firearms None Attempt in public — Furnishing weapons to None Attempt minors under 18 years of age, etc. — Selling arms to minors None Attempt by dealers — Felons; possession of None Attempt (may be applicable firearms unlawful; when concealed weapon is exception; penalty charged) — Carrying concealed firearm — (2) Carrying concealed weapon — (1) Sexual battery — Battery — Attempt — (2) Assault — Aggravated assault — (1)(a) Aggravated battery — (1)(a) Sexual battery Battery — Attempt — (3) Aggravated battery — (1)(a) Aggravated assault — (1)(a) Assault — Sexual battery — (4) Sexual battery — 795.011(5) Sexual battery Battery — Attempt — (4) Aggravated assault — (1)(a) Assault — Sexual battery — (5) Sexual battery Battery — Attempt — (5) Assault — Unnatural and None Attempt lascivious act — Exposure of sexual None Unnatural and lascivious organs — act — Lewd, lascivious, or None Attempt indecent assault or Assault — act upon or in Battery — presence of child — Unnatural and lascivious act — Arson — (1) Arson — (2) Attempt Criminal mischief Criminal mischief — — (1)(b)1 (1)(b)2. Criminal mischief — (1)(b)3. Criminal mischief — (2) Criminal mischief None Attempt — (1)(b)1 Criminal mischief Criminal mischief Attempt — (1)(b)2 — (1)(b)1 Criminal mischief Criminal mischief Attempt — (1)(b)3 — (1)(b)1 Criminal mischief — (1)(b)2 Burglary with assault Burglary — (3) Attempt or battery or while armed — (2) Burglary of dwelling or with human being inside — (3) Trespass — (2)(a) Trespass — (2)(c) Burglary of dwelling or Burglary — (3) Attempt with human being inside — (3) Trespass — (2)(a) Trespass — (2)(b) Burglary — (3) None Attempt Trespass — (2)(a) Possession of burglary None None tools — Trespass in structure None Attempt (except refuse to or conveyance — depart) Trespass on property None Attempt other than structure or conveyance — Grand theft — None Grand theft — second degree first degree (2)(b) (2)(a) Petit theft — (2)(c) Cf. (Fla. 1975) Trade secrets — Grand theft — Second None If value is alleged degree (2)(b) petit theft — (2) None Petit theft None No attempt — endeavor is (2) included within definition of theft Possession of altered None Attempt property — Dealing in stolen None None property — trafficking — (1) Dealing in stolen (1) Attempt property — managing trafficking — (2) Robbery with a firearm Robbery with a weapon Attempt or deadly weapon — (2)(b) — (2)(a) Robbery — (2)(c) Grand theft 1st degree — (2)(a) Petit theft Grand theft 2d degree — (2) — (2)(b) Battery — Aggravated battery — Assault — Aggravated assault — Extortion — See (Fla. 2d DCA 1973) Robbery with a weapon Robbery — (2)(c) Attempt — (2)(b) Petit theft Grand theft 1st degree — (2) (2)(a) Grand theft 2d degree (2)(b) Battery — Aggravated battery — Assault — Aggravated assault — Extortion — See (Fla. 2d DCA 1973) Robbery — (2)(c) Petit theft Attempt — (2) Grand theft 1st degree — (2)(a) Grand theft 2d degree — (2)(b) Battery — Assault — Aggravated assault — Extortion — See (Fla. 2d DCA 1973) Child abuse — Child abuse — Attempt, if willfully (1) (2) Negligent treatment of child — 827.05 Child abuse — None Attempt, if willfully (2) Negligent treatment of child — 827.05 Forgery — None Attempt Uttering forged None No attempt — instrument — (Fla.1st DCA 1975) Stopping payment; None Attempt, except when purchase of farm or uttering is charged — grove products — under $50 Stopping payment with None Attempt, except when intent to defraud uttering is charged; — — if farm or grove product; under $50 Worthless check — (2) (second degree misdemeanor) Worthless checks None Attempt, except when — (2) uttering is charged Obtaining property by Worthless check Attempt, except when worthless checks — (2) (second uttering is charged — (4) degree misdemeanor) Perjury not in official None None proceeding — Perjury if official None None proceeding — Perjury by None None contradictory statements — False reports to law None None enforcement authorities — False official None None statements — Bribery — None Attempt if only give or accept is charged Unlawful compensation None Attempt if only give or for official behavior accept is charged — Corruption by threat None Attempt if only harm is against public charged servant — Bribery in athletic None Attempt only if give is contests — (1) charged Bribery in athletic None Attempt only if accept is contests — (2) charged Keeping gambling house None Lottery — (1)(f) — Lottery — (1)(k) Lottery — Agents, servants, etc., None Lottery — 849.(1)(f) of keeper of gambling house — Lottery — (1)(k) Renting house for None None gambling purposes — Permitting minors and None Permitting gambling and persons under billiard or pool table by guardianship to holder of license — gamble — Playing at games of chance by lot — Gambling — None None Lottery (1)(a) None Attempt Lottery — (1)(f) Lottery — (1)(g) Lottery — (1)(h) Lottery — (1)(i) Lottery — (1)(j) Lottery — (1)(k) Playing at game of chance by lot — Gambling devices, etc. — Lottery (1)(b) None Attempt Lottery — (1)(f) Lottery — (1)(g) Lottery — (1)(h) Lottery — (1)(i) Lottery — (1)(j) Lottery — (1)(k) Gambling devices, etc. — Lottery (1)(c) None Attempt Lottery — (1)(f) Lottery — (1)(g) Lottery — (1)(h) Lottery — (1)(i) Lottery — (1)(j) Lottery — (1)(k) Gambling devices, etc. — Lottery (1)(d) None Attempt Lottery — (1)(f) Lottery — (1)(g) Lottery — (1)(h) Lottery — (1)(i) Lottery — (1)(j) Lottery — (1)(k) Playing at game of chance by lot — Gambling devices, etc. — Lottery (1)(g) None Attempt Lottery (1)(h) None Attempt Lottery (1)(k) None Attempt Bookmaking on grounds None Attempt of permit-holder — 550.361 (adapted from former 849.24) Bookmaking — (2) None Attempt Bookmaking — (3) Bookmaking — (2) Attempt Bookmaking on grounds of permit-holder — 550.361 Driving under the None Attempt influence — (3)(c)(1) DUI with damage to DUI — (1) None property or person — (3)(c)1 DUI with serious bodily DUI — (1) DUI — (3)(c)1 injury — (3)(c)2 DUI manslaughter DUI — (1) Vehicular homicide — — (3)(c)3 DUI — (3)(c)2 DUI — (3)(c)1 Sale, manufacture, None Attempt, except when delivery or delivery is charged; possession with (1) if intent to sell, possession or delivery of manufacture or cannabis charged deliver controlled (1) if substance — possession is (1)(a) charged Sale, delivery or None Attempt, except when possession of more delivery is charged than 10 grams of (1)(a) controlled substance (1) if — (1)(b) possession is charged Delivery of controlled None (1)(a) substance to person (1) under 18 years old if cannabis charged — (1)(c) Bringing controlled None Attempt (1) substance into state (1) if — (1)(d) cannabis charged Possession of None Attempt; (1) if controlled substance cannabis charged — (1) Offense of possession None Attempt, except when or delivery of not delivery is charged more than 20 grams of cannabis — (1) Obtaining controlled None substances by fraud — (3)(a)1 Possession of drug None Attempt paraphernalia — (1) Delivery, possession None Attempt, except when with intent to delivery is charged deliver, or manufacture with intent to deliver drug paraphernalia — (2) Delivery of drug None None paraphernalia to a minor — (3) Trafficking in cannabis — (1)(a) None Attempt, except when delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing cannabis into state — (1)(d) Possession of cannabis — (1) Possession or delivery of cannabis — (1)(f)(g) Trafficking in cocaine None Attempt, except when — (1)(b) delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing cocaine into state — (1)(d) Possession of cocaine — (1) Trafficking in illegal None Attempt, except when drugs — (1)(c) delivery is charged (1)(a) if sale, manufacture or delivery is charged Bringing same illegal drug as charged into state — (1)(d) Possession of same illegal drug — (1) Trafficking in None Attempt, except when phencyclidine delivery is charged — (1)(d) (1)(a) if sale, manufacture or delivery is charged Bringing phencyclidine into state — (1)(d) Possession of phencyclidine — (1) Trafficking in None Attempt, except when methaqualone delivery is charged — (1)(d) (1)(a) if sale, manufacture or delivery is charged Bringing methaqualone into state — (1)(d) Possession of methaqualone — (1) None EXHIBIT 12 THROWING, PLACING OR DISCHARGING DESTRUCTIVE DEVICE F.S. Before you can find the defendant guilty of (crime charged), the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) [made] [possessed] [threw] [placed] [discharged] [attempted to discharge] a destructive device. 2. He did so [with intent to do bodily harm to any person.] [with intent to do damage to (property).] 3. The act resulted in Give 3a, 3b, 3d, 3e a. [a disruption of governmental 3c, or 3f as applicable operations.] b. [a disruption of commerce.] c. [a disruption of the private affairs of (victim).] d. [bodily harm to (victim).] e. [property damage.] f. [the death of (victim).] Person killed; It is not necessary that the person killed be the give if 3f alleged same person the defendant intended to injure or the owner of the property intended to be damaged. Definition A "destructive device" is defined as (adapt from F.S. (4) as required by the allegations). EXHIBIT 13 THREAT TO THROW, PLACE OR DISCHARGE ANY DESTRUCTIVE DEVICE F.S. Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) threatened to [throw] [place] [discharge] a destructive device. 2. He did so with intent to do [bodily harm to any person.] [damage to the property of any person.] Definition A "destructive device" is defined as (adapt from F.S. (4) as required by the allegations). EXHIBIT 14 CONTRABAND IN COUNTY DETENTION FACILITY F.S. Before you can find the defendant guilty of the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) [introduced contraband into] [knowingly possessed contraband in] [gave contraband to an inmate in] [received contraband from an inmate in] [took contraband from] [attempted to take or send contraband from] a county detention facility. 2. (Defendant) did not do so through regular channels as duly authorized by the Sheriff or officer in charge of the facility. The court now instructs you that for purposes of this offense, "contraband" means: Select definition [any currency or coin.] depending upon [any article of food or clothing.] item alleged [any written or recorded communication.] [any intoxicating beverage or beverage which causes or may cause an intoxicating effect.] [any narcotic, hypnotic or excitative drug.] [any drug of any kind, including nasal inhalation] [sleeping pill] [barbiturate.] [any controlled substance. [(Item alleged)] is a controlled substance.] [any firearm.] [any instrumentality that may be or is intended to be used as a dangerous weapon.] [any instrumentality that may be or is intended to be used as an aid in attempting to escape.] "County detention facility" means a county jail, a county stockade, a county prison camp and any other place used by a county or county officer to detain persons charged with or convicted crimes, including the grounds thereof. Note to Judge: In event of municipal facility involved, see statute. Give as applicable To "introduce" means to put inside or into. Note to Judge: See p. 220 for definition of "possession."