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Top citers, strongest first. 24 distinct citers.
How cited ↗
cited
Cited as authority (rule)
Moore v. State
Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 130 (Fla.1998).
discussed
Cited as authority (rule)
Small v. State
E.g., Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 123 (Fla.1998) (Adopting proposed amendments to the criminal standard jury instructions, the court said, "we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions").
discussed
Cited as authority (rule)
Franklin v. State
The principle of Ray has been adopted in Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 124 (Fla.1998) (Regarding Appendix to the Schedule of Lesser Included Offenses comment on Schedule of Lesser Included Offenses); Fla. Std.
discussed
Cited as authority (rule)
Kearse v. State
Moreover, this Court's approval of standard instructions does not foreclose parties from "requesting additional or alternative instructions." Standard Jury Instructions In Criminal Cases (97-2), 723 So.2d 123, 123 (Fla.1998).
discussed
Cited as authority (rule)
Young v. State
E.g., Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 123 (Fla.1998) (Adopting proposed amendments to the criminal standard jury instructions, the court said, "we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions").
examined
Cited as authority (rule)
Holiday v. State
(4×)
also: Cited "see"
We have for review Holiday v. State, 730 So.2d 830 (Fla. 1st DCA 1999), which certified conflict with Miller v. State, 723 So.2d 353 (Fla. 4th DCA 1998), as to whether the trial court committed fundamental error by instructing the jury with the then-current standard instruction on entrapment when such instruction had not yet been modifiedas it was later in Standard Jury Instructions In Criminal Cases (97-2), 723 So.2d 123, 123, 142-43 (Fla. 1998) (approving modified instruction for publication)to accurately reflect this Court's prior analysis of the entrapment defense in Munoz v. State, 62…
discussed
Cited as authority (rule)
State v. Miller
The substantive issue in this case concerning the standard jury instruction on entrapment, which has been amended since the trial below took place, see In re Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 123, 142-43 (Fla.1998) (effective July 16, 1998), is addressed in our decision in Holiday v. State, 753 So.2d 1264 (Fla.2000).
cited
Cited as authority (rule)
Gregg v. State
Weekly S407 , S407-S410, 723 So.2d 123,123-132 (Fla.1998).
discussed
Cited as authority (rule)
Hernandez v. State
(2×)
Weekly S407, S415-16, 723 So.2d 123, 142-143 (July 16, 1998).” State v. Vazquez, 718 So.2d 755 , 23 Fla.L.
cited
Cited "see"
Timothy Louis Parker v. Secretary, Florida Department of Corrections
See Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 123 (Fla.1998).
discussed
Cited "see"
Washington v. State
See Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123 , 124 (Fla.1998) (“No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration.”) (citing Ray v. State, 403 So.2d 956 (Fla.1981) and State v. Carpenter, 417 So.2d 986 (Fla.1982)); see also Franklin v. State, 877 So.2d 19 (Fla. 4th DCA 2004).
cited
Cited "see"
Hill v. State
Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993); see In Re Standard Jury Instructions, 723 So.2d 123, 125 (Fla.1998)(holding simple possession to be a category 2 lesser offense of trafficking).
discussed
Cited "see"
Iseley v. State
See § 784.021, Fla. Stat. The trial court noted that under Florida law, "No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration." Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 124 (Fla.1998).
cited
Cited "see"
Pepitone v. State
See Florida Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 131 (Fla.1998).
cited
Cited "see"
Willis v. State
See Standard Jury Instructions in Criminal Cases , 723 So.2d 123 (Fla.1998).
cited
Cited "see"
Howard v. State
See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla.1998).
cited
Cited "see"
State v. Hubbard
See Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 146-48 (Fla.1998).
cited
Cited "see"
Gange v. State
See In re Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla.1998).
cited
Cited "see"
Holiday v. State
See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla. 1998).
cited
Cited "see"
Guerra-Villafane v. Singletary
See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla.1998).
cited
Cited "see, e.g."
Hughes v. State
Jones v. State, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987); see also Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 144-47 (Fla.1998).
cited
Cited "see, e.g."
Cloyd v. State
Jones v. State, 510 So.2d 1147, 1149 (Fla. 1st DCA 1987); see also Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 144-47 (Fla.1998).
cited
Cited "see, e.g."
Piccioni v. State
See Henig v. State, 820 So.2d 1037, 1039 (Fla. 4th DCA 2002); see also In re Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 131 (Fla.1998).
Retrieving the full opinion text from the archive…
STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (97-2).
Per Curiam.
Cited by 1 opinion | Published
Honorable Philip J. Padovano, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, for Petitioner.
William D. Matthewman, Miami, John H. Gutmacher, Orlando, Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, and Arthur I. Jacobs, General Counsel for Florida Prosecuting Attorneys Association, Fernandina Beach, Responding.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted the following proposed amendments to the Florida Standard Jury Instructions in Criminal Cases:
1. A revised Schedule of Lesser Included Offenses.[1]
2. A New Instruction on Duress or Necessity.
3. A Supplemental Instruction on Penalty Phase Proceedings.
4. An Amended Instruction on Entrapment.
5. An Amended Instruction on False Imprisonment.
6. Amended Instructions Relating to DUI.
7. A New Instruction on Sexual Activity with a Minor.
The foregoing list of proposed amendments was published in The Florida Bar News and comments were received. The Committee considered the comments and revised proposed amendments were published in The Florida Bar News on January 15, 1998. Several new comments were filed with this Court. In addition to some technical changes, the Court on its own motion has modified the proposed instructions as explained below.
First, the word "intentionally" has been added to the first element in the Committee's proposed new instruction on duress and necessity. Second, in the amended instruction on entrapment, the Court has changed the term "police" in the definition of information to "law enforcement." The instruction now reflects that an informant is an agent of law enforcement for the purposes of the entrapment defense.
With these changes, the Court hereby adopts the proposed amendments as set forth in the appendix attached to this opinion and approves them for publication. In doing so, we express no opinion on the correctness of these instructions and remind all interested parties that this approval forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions.
Accordingly, the new instructions are appended to this opinion and will be effective on the date this opinion is filed. The new language is indicated by underscoring; deletions are indicated by strike-through type.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.
APPENDIX
SCHEDULE OF LESSER INCLUDED OFFENSES
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[*124] or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (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 on the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown 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 Brown 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 Ray v. State, 403 So.2d 956 (Fla.1981); State v. Carpenter, 417 So.2d 986 (Fla.1982).
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, e.g., 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 F.S. 810.02 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 Knight v. State, 338 So.2d 201 (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.
[*125] TABLE OF LESSER INCLUDED OFFENSES SECTION CHARGED CATEGORY 1 CATEGORY 2 OFFENSE 316.193(1) Driving under None Attempt the influence 316.193(2)(b) Felony DUI prior None Attempt convictions 316.193(3)(c) DUI with damage DUI - 316.193(1) None (1) to property or person 316.193(3)(c) DUI with serious DUI - 316.193(1) DUI- 316.193(3)(c)(1) (2) bodily injury 316.193(3)(c) DUI manslaughter DUI - 316.193(1) DUI serious bodily injury (3) - 316.193(3)(c)(2) DUI damage to person or property -316.193(3)(c) Vehicular homicide -782.071 550.361 Bookmaking on None Attempt grounds of permit holder (adapted from former 849.24) 782.04(1) First degree Second degree (depraved Second degree (premeditated) mind) murder (felony) murder -782.04(3) murder - 782.04(2) Third degree (felony Manslaughter -782.07 murder) - 782.04(4) Vehicular homicide -782.071 (Nonhomicide lessers) Attempt Culpable negligence -784.05(2) Aggravated battery 784.045 Aggravated assault -784.021 Battery - 784.03 Assault - 784.011 782.04(1) First degree Second degree (depraved Second degree (felony) murder mind) murder- 782.04(2) (felony) murder -782.04(3) Manslaughter -782.07 Third degree (felony) murder - 782.04(4) (Nonhomicide lessers) Aggravated battery -784.045 Aggravated assault -784.021 Battery - 784.03 Assault - 784.0111
[*126] 782.04(1)(a) & Attempted first Attempt second degree Aggravated assault - 777.04 degree (premeditated) (depraved 784.021 murder mind) murder - Aggravated battery - 782.04(2) & 777.04 784.045 Attempt voluntary Assault - 784.011 manslaughter - Battery - 784.03 782.07 & 777.04 782.04(2) Second degree Manslaughter - 782.07 Third degree (depraved mind) (felony) murder - 782.04(4) murder Vehicular homicide - 782.071 (Nonhomicide lessers) Attempt Culpable negligence - 784.05(2) Aggravated battery - 784.045 Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 782.04(3) Second degree None Third degree (felony) (felony) murder murder - 782.04(4) 782.051 Felony causing None Felony causing bodily bodily injury injury - 782.051(2) Felony causing bodily injury - 782.051(3) 782.04(4) Third degree None Aggravated assault -784.021 (felony murder) Battery - 784.03 Assault - 784.011 782.07 Manslaughter None Vehicular homicide - 782.071 (Nonhomicide lessers) Attempt Aggravated assault - 784.021 Battery - 784.03 Assault - 784.011 Culpable negligence - 784.05(1) Culpable negligence - 784.05(2) 782.071 Vehicular Homicide Reckless driving - 316.192 Culpable negligence - 784.05(1) Culpable negligence - 784.05(2) 784.011 Assault None Attempt 784.021(1)(a) Aggravated Assault - 784.011 Attempt Improper exhibition assault of dangerous weapons or firearms - 790.10 Discharging firearms in public - 790.15
[*127] 784.021(1)(b) Aggravated Assault - 784.011 Attempt assault 784.03 Battery None Attempt 784.045(1)(a) Aggravated Battery - 784.03 Attempt 1 battery 784.045(1)(a) Aggravated Battery - 784.03 Attempt 2 battery Improper exhibition of dangerous weapons or firearms - 790.10 784.045(1)(b) Aggravated Battery - 784.03 Attempt battery 784.048(2) Stalking None Attempt 784.048(3) Aggravated Stalking - 784.048(2) Attempt stalking Assault - 784.011 Improper exhibition of dangerous weapon -790.10 784.048(4) Aggravated Stalking - 784.048(2) Attempt stalking Violation of injunction for protection against domestic violence - 741.31(4) 784.05(2) Culpable Culpable negligence None negligence - 784.05(1) 784.07(2) Assault of law Assault - 784.011 Attempt enforcement officer 784.07(2) Battery of law Battery - 784.03 Attempt enforcement officer 784.07(2)(c) Aggravated Aggravated Attempt assault on law assault - 784.021 Improper exhibition of enforcement Assault on law dangerous weapons or officer enforcement firearms - 790.10 officer - 784.07(2)(a) Discharging firearms in Assault - 784.011 public - 790.15 784.07(2)(d) Aggravated Aggravated Attempt battery on law battery - 784.045 Improper exhibition of enforcement Battery on law dangerous weapons or officer enforcement firearms - 790.10 officer Discharging firearms in 784.07(2)(b) public - 790.15 Battery - 784.03 784.08(2)(a) Aggravated Aggravated Attempt battery on battery - 784.045 Improper exhibition of person 65 years Battery on dangerous weapons or of age or older person 65 years firearms - 790.10 of age or older Discharging firearms in - 784.08(2)(c) public - 790.15 Battery - 784.03 784.08(2)(b) Aggravated Aggravated Attempt assault on assault - 784.021 Improper exhibition of person 65 years Assault on dangerous weapons or of age or older firearms - 790.10
[*128] person 65 years Discharging firearms in of age or older public - 790.15 - 784.08(2)(d) Assault - 784.011 784.08(2)(c) Battery on person Battery - 784.03 Attempt 65 years of age or older 784.08(2)(d) Assault on person Assault - 784.011 Attempt 65 years of age or older 787.01 Kidnapping False Attempt imprisonment - 787.02 Aggravated assault - 784.021(1)(b) Battery - 784.03(1)(a) Assault - 784.011 787.02 False None Attempt imprisonment Battery - 784.03(1)(a) Assault - 784.011 790.01(1) Carrying concealed None Attempt weapons 790.01(2) Carrying concealed None Attempt firearms 790.06 Carrying pistol None Attempt or repeating rifle without first obtaining license 790.07(1) Persons engaged None Attempt (may be applicable in criminal when concealed offense, having weapon is charged) weapons Carrying concealed weapons - 790.01(1) Improper exhibition of dangerous weapons -790.10 790.07(2) Persons engaged None Attempt (may be in criminal applicable when concealed offense, having firearm is weapons charged) Carrying concealed firearm - 790.01(2) Improper exhibition of dangerous firearms -790.10 790.10 Improper None Attempt exhibition of Assault - 784.011 weapon 790.15 Discharging None Attempt firearms in public 790.161(1) Possessing, None None throwing, making, placing, projecting, or discharging destructive device 790.161(2) Possessing, Possessing, throwing, Aggravated assault - 784.021 throwing, making, making, placing, Assault - 784.011 placing, projecting, or
[*129] projecting, or discharging destructive discharging destructive device - 790.161 (1) device 790.161(3) Possessing, Possessing, throwing Possessing, throwing, throwing, making making, placing, making, placing, placing projecting, or projecting, or discharging projecting, or discharging destructive destructive device - discharging destructive device 790.161(2) device 790.161(1) Aggravated assault - 784.021 Assault - 784.011 790.161(4) Possessing, Possessing, throwing, Possessing, throwing, throwing, making, making, placing, making, placing, projecting, placing, projecting, or or discharging destructive projecting, or discharging destructive device - 790.161(2) discharging destructive device - 790.161(1) Aggravated assault - 784.021 device Possessing, throwing, Assault - 784.011 making, placing, projecting, or discharging destructive device - 790.161(3) 790.162 Threat to throw, None Attempt project, place, Assault - 784.011 or discharge any destructive device 790.163 False reports of None None bombing 790.164 False reports of None Attempt bombing or arson False reports of bombing or other violence - 790.163 to property owned by the State 790.17 Furnishing None Attempt weapons to minors under 18 years of age, etc. 790.18 Selling arms to None Attempt minors by dealers 790.19 Shooting or None Attempt throwing missiles Discharging firearm in in dwelling public - 790.15 790.221 Possession of None Attempt forbidden firearms 790.23 Felons; possession None Attempt (may be applicable of firearms when concealed unlawful; exception; weapon is charged) penalty Carrying concealed firearm - 790.01(2)
[*130] 794.011(2)(a) Sexual battery - victim Battery - 784.03 Sexual battery - 794.011(5) (b) under 12 Attempt Assault - 784.011 Aggravated assault - 784.021(1)(a) Aggravated battery - 784.045(1)(a) 794.011(3) Sexual battery - victim Sexual battery-794.011(5) Sexual battery - 794.011(2)(b) over 12 - weapon Battery - 784.03 Attempt or force Aggravated battery -784.045(1)(a) Aggravated assault -784.021(1)(a) Assault - 784.011 Sexual battery -794.011(4) 794.011(4) Sexual battery-victim Sexual battery-794.011(5) Attempt over 12 - special Battery - 784.03 Aggravated assault -784.021(1)(a) circumstances Assault - 784.011 794.011(5) Sexual battery-victim Battery - 784.03 Attempt over 12 - without force 800.02 Unnatural and None Attempt lascivious act 800.03 Exposure of None Unnatural and lascivious sexual organs act - 800.02 800.04 Lewd, None Attempt lascivious, or Assault - 784.011 indecent Battery - 784.03 assault or act Unnatural and upon or lascivious in presence of act - 800.02 child 806.01(1) Arson None Arson 806.01(2) Attempt Criminal mischief -806.13(1)(b)1 Criminal mischief -806.13(1)(b)2. Criminal mischief -806.13(1)(b)3. Criminal mischief -806.13(2) 806.111 Arson - Fire None Attempt bomb 806.13(1)(b)1 Criminal mischief None Attempt 806.13(1)(b)2 Criminal mischief Criminal mischief - Attempt 806.13(1)(b)1 806.13(1)(b)3 Criminal mischief Criminal mischief - Attempt 806.13(1)(b)1 Criminal mischief - 806.13(1)(b)2 810.02(2) Burglary with Burglary - 810.02(4) Aggravated battery - 784.03
[*131] assault or Battery - 784.03 battery or while Aggravated assault - 784.021 armed Assault - 784.011 Attempt Burglary - 810.02(3) Trespass - 810.08(2)(a) Trespass - 810.08(2)(c) 810.02(3) Burglary of Burglary - 810.02(4) Attempt dwelling Burglary - 810.02(3) Burglar Trespass - 810.08(2)(a) structure or Trespass - 810.08(2)(b) conveyance with human being inside 810.02(4) Burglary None Attempt Trespass - 810.08(2)(a) 810.06 Possession of None None burglary tools 810.08 Trespass in None Attempt (except refuse structure or to depart) conveyance 810.09 Trespass on None Attempt property other than structure or conveyance 812.014(2)(a) Grand theft - first Grand theft - second Trade secrets - 812.081 degree degree - 812.014(2)(b) (property Grand theft - third valued at $100,000 degree - 812.014(2)(c) or more) (1), (2), (3) Petit theft - first degree 812.014(2)(e) Petit theft - second degree - 812.014(3)(a) 812.014(2)(b) Grand theft - second Grand theft - third Trade secrets - 812.081 degree degree - 812.014(2)(c) (property (1), (2), (3) valued at $20,000 Petit theft-first or more but degree less than $100,000 812.014(2)(e) Petit theft - second degree 812.014(3)(a) 812.014(2)(c) Grand theft -third Petit theft -first Trade secrets - 812.081 degree degree Trespass to 812.014(2)(e) conveyance - 812.014(2)(c)(6) Petit theft - second degree 812.014(3)(a)
[*132] 812.014(2)(d) Grand theft third None Petit theft - second degree-812.014(3)(a) degree 812.014(2)(e) Petit theft - first None Petit theft - second degree - 812.014(3)(a) degree 812.014(3)(b) Petit theft None None 812.014(3)(a) Petit theft - second None None degree 812.014(3)(c) Felony Petit None Petit theft - first degree - 812.014(2)(e) theft Petit theft - 812.014(3)(b) Petit theft - second degree - 812.014(3)(a) 812.016 Possession of altered None Attempt property 812.019(1) Dealing in stolen None Grand theft - third degree - 812.014(2)(c) property trafficking Petit theft - 812.014(2)(e) Petit theft - 812.014(3)(a) 812.019(2) Dealing in stolen Dealing in stolen None property managing property - 812.019(1) and trafficking 812.13(2)(a) Robbery with a Robbery with a Attempt firearm or weapon - 812.13(2)(b) Grand theft 1st deadly weapon Robbery degree - 812.014(2)(a) 812.13(2)(c) Grand theft 2d degree - 812.014(2)(b) Petit theft - Grand theft 3d degree - 812.014(2)(c) 812.014(3)(a) Petit theft - 812.014(2)(e) Battery - 784.03 Aggravated battery - 784.045 Assault - 784.011 Aggravated assault - 784.021 Display of firearm - 790.07 Resisting a Merchant - 812.015(6) 812.13(2)(b) Robbery with a Robbery - 812.13(2)(c) Attempt weapon Petit theft-812.014(3)(a) Grand theft 1st degree - 812.014(2)(a) Grand theft 2d degree - 812.014(2)(b) Grand theft 3d degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Battery - 784.03 Aggravated battery - 784.045 Assault - 784.011
[*133] Display of weapon - 790.07(1) Resisting a merchant - 812.015(6) 812.13(2)(c) Robbery Petit theft-812.014(3)(a) Attempt 812.013(2)(b) Grand theft 1st degree - 812.014(2)(a) Grand theft 2d degree - 812.014(2)(b) Grand theft 3d degree - 812.014(2)(c) Petit theft - 812.014(2)(e) Battery - 784.03 Assault - 784.011 Aggravated assault - 784.021 Resisting a merchant - 812.015(6) 812.135 Home invasion Robbery -812.13(2)(c) Petit theft -812.014(2)(e) robbery Petit theft-812.014(3)(a) 817.233 Burning to defraud None None insurer 817.563 Sale of substance None Attempt in place of a controlled substance 826.04 Incest None Attempt 827.03(1)(a) Aggravated None Attempt child abuse child abuse - 827.04(1) Battery - 784.03 only under certain circumstances see Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987) 827.03(1)(b) Aggravated None Attempt 827.03(1)(c) child Child abuse - 827.04(1) 827.03(1)(d) abuse Battery - 784.03: only 827.04(3) Contributing to None Attempt child delinquency or dependency or to child in need of services 827.071(2) Sexual None Attempt performance by Sexual performance by a a child child - 827.071(5) 827.071(3) Sexual None Attempt performance by Sexual performance by a a child child - 827.071(5) 827.071(4) Sexual Sexual Attempt performance by performance by a a child child - 827.071(5) 827.071(5) Sexual None Attempt performance by a child
[*134] 831.01 Forgery None Attempt 831.02 Uttering forged None None instrument 832.04 Stopping payment; None Attempt, except when purchase uttering is charged - 832.04 of farm or grove under $150 products 832.041 Stopping payment None Attempt, except when with intent uttering is charged to defraud 832.04 if farm or grove product 832.041 under $150 Worthless check - 832.05(2) (first degree misdemeanor) 832.05(2) Worthless None Attempt, except when checks uttering is charged 832.05(2) under $150 832.05(4) Obtaining property Worthless check-832.05(2) Attempt by worthless checks 837.012 Perjury not in None None official proceeding 837.02 Perjury in official None None proceeding 837.021 Perjury by contradictory None None statements 837.05 False reports to None None law enforcement authorities 837.06 False official None None statements 838.015(1) Bribery of public None Attempt if only "give" is servant charged 838.015 Bribery None Attempt if only "accept" is charged 838.016(1) Bribery by a None Attempt if only "give" or public servant "accept" is charged 838.016 Unlawful compensation None Attempt if only "give" or for official "accept" is charged behavior 838.021 Corruption by None Attempt if only harm is threat against charged public servant 838.12(1) Bribery in athletic None Attempt if only give is contests charged 838.12(2) Bribery in athletic None Attempt if only accept is contests charged 843.01 Resisting officer None Resisting officer without with violence violence - 843.02 843.02 Resisting officer None Attempt without violence 849.01 Keeping gambling None Lottery - 849.09(1)(f) house Lottery - 849.09(1)(k)
[*135] Lottery - 849.11 849.01 Maintaining a None Lottery - 849.09(1)(f) (849.02) gambling Lottery - 849.09(1)(k) establishment Lottery - 894.11 849.01 Permitting None Lottery - 849.09(1)(f) (849.02) gambling Lottery - 849.09(1)(k) Lottery - 849.11 849.02 Agents, None Lottery - 849.09(1)(f) servants, etc., of Lottery - 849.09(1)(k) keeper of gambling house 849.02 Renting house None None for gambling purposes 849.03 Renting space None None for gambling 849.04 Permitting minors None Permitting gambling on and persons billiard or pool table by under holder of license - 849.07 guardianship to Playing at games of gamble chance by lot - 849.11 849.08 Gambling None None 849.09(1)(a) Lottery None Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Playing at game of chance by lot - 849.11 Gambling devices, etc. - 849.231 849.09(1)(b) Lottery None Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Gambling devices, etc. - 849.231 849.09(1)(c) Lottery None Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k) Gambling devices, etc. - 849.231 849.09(1)(d) Lottery None Lottery - 849.09(1)(f) Lottery - 849.09(1)(g) Lottery - 849.09(1)(h) Lottery - 849.09(1)(i) Lottery - 849.09(1)(j) Lottery - 849.09(1)(k)
[*136] Playing at games of chance by lot - 849.11 Gambling devices, etc. - 849.231 849.09(1)(g) Lottery None None 849.09(1)(h) Lottery None None 849.09(1)(k) Lottery None None 849.14 Betting None None 849.25 Bookmaking None Attempt (1) and (2) 893.13(1)(a) Sale, manufacture, None Attempt, except when delivery or delivery is charged possession with 893.13(3) if delivery of intent to sell, cannabis is charged; manufacture or 893.13(6)(b) if possession deliver controlled of cannabis is charged; substance 893.13(6)(a) - if possession is charged and offense would be a second degree felony under 893.13(1)(a)1. 893.13(1)(b) Sale or delivery Sale or delivery of Attempt, except when or possession of controlled substance delivery is charged more than 10 - 893.13(1)(a) 893.13(6)(a) if possession grams of controlled is charged substance 893.13(1)(c) Sale, manufacture, Sale, manufacture, Attempt, except when delivery, delivery, etc. delivery is charged; etc. near public - 893.13(1)(a) 893.13(6)(a) if possession or private elementary, is charged and the offense middle, would be a second or secondary degree felony under school 893.13(1)(a); 893.13(6)(b) if possession of cannabis is charged; 893.13(3) if delivery of cannabis is charged 893.13(1)(d) Sale, manufacture Sale, manufacture, Attempt, except when delivery, delivery, etc. delivery is charged; etc. near a college, - 893.13(1)(a) 893.13(6)(a) if possession university, is charged and the offense other post-secondary would be a second educational degree felony under institution 893.13(1)(a)1; or public 893.13(6)(b) if possession park of cannabis is charged; 893.13(3) if delivery of cannabis is charged. 893.13(2)(a) Purchase or None Attempt; possession with 893.13(6)(a) if possession intent to purchase is charged and the offense controlled would be a second substance degree felony under 893.13(2)(a)1 893.13(6)(b) if possession of cannabis is charged 893.13(2)(b) Purchase in excess 893.13(2)(a) purchase Attempt of 10 grams of less than
[*137] of a controlled 10 grams substance 893.13(3) Delivery without None None consideration not more than 20 grams of cannabis 893.13(4) Delivery of controlled None 893.13(1)(a); 893.13(3) if substance delivery of cannabis is to person charged. under 18 years old, etc. 893.13(5) Bringing controlled None Attempt substance 893.13(6)(a); 893.14(3) if into state delivery of cannabis charged; 893.13(6)(b) if possession of cannabis charged. 893.13(6)(a) Possession of None Attempt; 893.13(3) if delivery controlled substance of cannabis stance charged; 893.13(6)(b) if possession of cannabis charged. 893.13(6)(b) Possession of None Attempt not more than 20 grams of cannabis 893.13(6)(c) Possession in Possession of less Attempt 893.13(6)(b) if excess of 10 than 10 grams possession of cannabis grams of controlled 893.13(6)(a) charged; substance 893.13(7)(a) 1, Distribute or None Attempt 2, 3, 4, 5, 6, 7, dispense a controlled 8, 10 and 11 substance, etc. 893.13(7)(a) 9 Obtaining controlled None None substances by fraud 893.135(1)(a) Trafficking in Trafficking offenses Attempt, (but not conspiracy), cannabis requiring except when lower quantities of delivery is charged cannabis-893.135(1)(a) 893.13(1)(a) if sale, manufacture 1 and 2 or delivery is charged 893.13(2)(a) - if purchase is charged Bringing cannabis into state - 893.13(5) Possession of cannabis - 893.13(6)(a) - 893.13(6)(b) if less than 20 grams of cannabis Delivery of less than 20 grams of cannabis - 893.13(3) 893.135(1)(b) Trafficking in Trafficking offenses Attempt (but not conspiracy), 1&2 cocaine requiring except when lower quantities of delivery is charged;
[*138] cocaine 893.13(1)(a) if sale, manufacture 893.135(1)(b)1 or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing cocaine into state 893.13(5); Possession of cocaine 893.13(6)(a). 893.135(1)(c) Trafficking in illegal Trafficking offenses Attempt (but not conspiracy), 1&2 drugs requiring except when lower quantities of delivery is charged; illegal drugs - 893.13(1)(a) if sale, 893.135(1)(c)1 manufacture or delivery is charged; 893.13(2)(a) if purchase is charged; Bringing same illegal drug as charged into state - 893.13(5) Possession of same illegal drug - 893.13(6)(a). 893.135(1)(d) 1 Trafficking in Trafficking offenses Attempt (but not conspiracy), phencyclidine requiring except when lower quantities of delivery is charged phencyclidine - 893.13(1)(a) if sale, manufacture 892.135(1)(d)1. or delivery and b. is charged 893.13(2)(a) - if purchase is charged; Bringing phencyclidine into state - 893.13(5); Possession of phencyclidine - 893.13(6)(a) 893.135(1)(e)1 Trafficking in Trafficking offenses Attempt (but not conspiracy), methaqualone requiring except when lower quantities of delivery is charged methaqualone - 893.13(1)(a) if sale, manufacture 893.135(1)(e)1.a and or delivery is b. charged 893.13(2)(a) - if purchase is charged Bringing methaqualone into state - 893.13(5) Possession of methaqualone - 893.13(6)(a) 893.135(1)(f)1 Trafficking in Trafficking offenses Attempt (but not conspiracy), amphetamine requiring except when lower quantities of delivery is charged amphetamine - 893.13(1)(a) - if sale, 893.135(1)(f)1 a&b manufacture or delivery is charged; 893.13(2)(a) - if purchase is charged; Bringing amphetamine into state - 893.13(5); Possession of amphetamine - 893.13(6)(a)
[*139] 893.147(1) Possession of None Attempt drug paraphernalia 893.147(2) Delivery, possession None Attempt, except when with intent delivery is charged. to deliver, or manufacture with intent to deliver drug paraphernalia 893.147(3) Delivery of drug None None paraphernalia to a minor 893.147(4) Advertisement None None of drug paraphernalia 893.149 Unlawful possession, None Attempt etc., of listed chemical 895.03(1) RICO - Use or None None investment of proceeds from pattern of racketeering activity 895.03(1) RICO - Use or None None investment of proceeds from collection of unlawful debt 895.03(2) RICO - Acquisition None None or maintenance through pattern of racketeering activity 895.03(2) RICO - None None Acquisition or maintenance through collection of unlawful debt 895.03(3) RICO - Conduct None None or participation in an enterprise through collection of unlawful debt 895.03(3) RICO - Conduct None None or participation in an enterprise through a pattern of racketeering activity 895.03(4) Conspiracy to None None engage in pattern of racketeering activity 944.40 Escape None None
[*140] 944.47 Contraband in None Possession of less than state correctional 20 grams cannabis - 893.13(6)(b) institution 951.22 Contraband in None Possession of less than county detention 20 grams cannabis - 893.13(6)(b) facilitiesDURESS OR NECESSITY An issue in this case is whether (defendant) acted out of [duress][necessity] in committing the crime of (crime charged) (lesser included offenses). It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress][necessity], you must find the following six elements: 1. the defendant reasonably believed [a danger][an emergency] existed which was not intentionally caused by [himself][herself]. 2(a). the [danger][emergency] threatened significant harm to [himself][herself][a third person]. (or) Give 2(b) if 2(b). the [danger][emergency] threatened death or serious escape bodily injury. charged 3. The threatened harm must have been real, imminent and impending. Give 4(a) 4(a). the defendant had no reasonable means to avoid the if escape [danger][emergency] except by committing the (crime not charged charged) (lesser included offenses). Note to If escape is charged, the court must first determine whether the Judge defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So. 2d 374 (Fla. 3d DCA 1984) and Alcantaro v. State, 407 So. 2d 922 (Fla. 1st DCA 1981) and if so, give 4b. 4(b). the defendant left [the place of [his][her] confinement][the vehicle in which [he][she] was being transported] [to][from][his][her] work on a public road] because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority. 5. the (crime charged) (lesser included offenses) must have been committed out of [duress][necessity] to avoid the [danger][emergency]. 6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).[*141] Definitions "Imminent and impending" means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress][necessity] if [he][she] committed the crime after the danger from the threatened harm had passed. The reasonableness of the defendant's belief that [a danger][an emergency] existed should be examined in the light of all the evidence. In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed. The [danger][emergency] facing the defendant need not have been actual; however to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger][emergency] was real. If you find from the evidence that the defendant committed the (crime charged) (lesser included offenses) out of [duress][necessity], you should find the defendant not guilty. However if you find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress][necessity] you should find the defendant guilty if all the elements of the charge have been proved. Note to Duress is not a defense to an intentional homicide. See Wright v. Judge State, 402 So. 2d 193 (Fla. 3d DCA 1981). PENALTY PROCEEDINGS-CAPITAL CASES After the first paragraph on page 114 of the manual, the following additional language is proposed: Note to Give before a new penalty phase jury Judge [A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to disregard an aggravating circumstance if you have an abiding conviction that it exists. On the other hand, if, after carefully considering, comparing and weighing all the evidence, you do not have an abiding conviction that the aggravating circumstance exists, or if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the aggravating not stance has not been proved beyond a reasonable0 doubt and you should disregard it, because the doubt is reasonable. It is to the evidence introduced in this proceeding, and to it alone, that you are to look for that proof.[*142] A reasonable doubt as to the existence of an aggravating circumstance may arise from the evidence, conflicts in the evidence or the lack of evidence. If you have a reasonable doubt as to the existence of an aggravating circumstance, you should find that it does not exist. However, if you have no reasonable doubt, you should find that the aggravating circumstance does exist and give it whatever weight you feel it should receive.] 3.04(c)(2) ENTRAPMENT Note to This instruction is to be used for offenses occurring on or Judge after October 1, 1987. The defense of entrapment has been raised. (Defendant) was entrapped if 1. [he] [she] 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] [she] engaged in such conduct as the direct result of such inducement or encouragement, and 3. the person who induced or encouraged [him] [her] 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] [her] 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. When claim It is not entrapment if (defendant) had the predisposition to of entrapment commit the (crime charged). (Defendant) had the predisposition no defense if before any law enforcement officer or person acting for the er persuaded, induced, or lured (defendant), [he] [she] had a ness or willingness to commit (crime charged) if the opportunity nted itself. When claim It is also not entrapment merely because a law enforcement of entrapment officer in a good faith attempt to detect crime no defense Give a, b, (a) [provided the defendant the opportunity, means and or c as facilities to commit the offense, which the defendant applicable intended to commit and would have committed otherwise.] (b) [used tricks, decoys or subterfuge to expose the defendant's oriminal 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 the greater weight of the evidence that his criminal conduct occurred as the result of entrapment. a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt[*143] that the defendant was predisposed to commit the (crime charged). The state must prove defendant's predisposition to commit the (crime charged) existed prior to and independent of the enducement or encouragement. Give if An informant is an agent of law enforcement for purposes applicable of the entrapment defense. If you find that the defendant was entrapped, you should find the defendant not guilty of (crime charged). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved. Note to This instruction should be given only if there is some evidence of Judge the defendant's lack of predisposition to commit the crime. See Munoz v. State, 629 So.2d 90 (Fla. 1993). FALSE IMPRISONMENT F.S. 787.02 Before you can find the defendant guilty of False Imprisonment, the State must prove the following threetwo elements beyond a reasonable doubt: Elements 1. (Defendant) [forcibly] [secretly] [by threat] [confined] [abducted] [imprisoned] [restrained] (victim) against [his] [her] will. 2. (Defendant) had no lawful authority. Give (a),(b), 3. (Defendant) acted for any purpose other than to: (c) or (d) as applicable a. hold for ransom or reward or as a shield or hostage. b. commit or facilitate commission of any felony, c. inflict bodily harm upon or to terrorize the victim or another person. d. interfere with the performance of any governmental or political function. Read only if Confinement of a child under the age of thirteen (13) is confinement against [his] [her] will if such confinement is without the is consent of [his] [her] parent or legal guardian. alleged and child is under 13 thirteen years of age. FELONY DUIPRIOR CONVICTIONS F.S. 316.193(2)(b) Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) drove or was in actual physical control of a vehicle. 2. While driving or in actual physical control of the vehicle, (defendant) Give 2a a. [ was under the influence of [alcoholic beverages] and/or 2b as [a chemical substance] [a controlled substance] to[*144] applicable the extent that [his] [her] normal faculties were impaired.] or b. [had a blood or breath alcohol level of 0.10 0.08 percent or higher.] Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. 316.003(75) "Normal faculties" mean those faculties of a person, such as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or, (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable.[*145] However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. FELONY DUI- SERIOUS BODILY INJURY F.S. 316.193(3)(c)(2) Before you can find the defendant guilty of DUI with Causing Serious Bodily Injury, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) drove or was in actual physical control of a vehicle. 2. While driving or while in actual physical control of the vehicle, (defendant) Give 2a or a. [was under the influence of [alcoholic beverages] 2b as [a chemical substance] [a controlled substance] to applicable the extent that [his] [her] normal faculties were impaired.] or b. [had a blood or breath alcohol level of 0.10 0.08 percent or higher.] 3. As a result (defendant) caused serious bodily injury to (victim). Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. "Normal faculties" mean those faculties of a person, such 316.003(75) as include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. F.S. 316.1933 "Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows:[*146] (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable. However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. DUI MANSLAUGHTER F.S. 316.193(3)(c)3 Before you can find the defendant guilty of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Defendant) operated drove or was in actual physical control of a vehicle. See Magaw 2. (Defendant), by reason of such operation, caused or v. State, contributed to the cause of the death of (victim). While 537 So.2d driving or while in actual physical control of the 564 (Fla. vehicle, (defendant) 1989) Give 2(a) or a. was under the influence of [alcoholic beverages] 2(b) as [a chemical substance] [a controlled substance] to applicable the extent that [his] [her] normal faculties were impaired, or b. had a blood or breath alcohol level of 0.08 or higher. Give 3a and 3. At the time of such operation(defendant) or 3b as applicable a. [was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to[*147] the extent that [his] [her] normal faculties were impaired.] b. [had a blood or breath alcohol level of 0.10 percent or higher.] See Magaw As a result, (defendant) caused or contributed to the v. State, cause of the death of (victim). 537 So.2d 564 (Fla. 1989) Definitions; "Vehicle" is any device in, upon, or by which any person or give as property is or may be transported or drawn upon a highway, applicable except devices used exclusively upon stationary rails or tracks. F.S. "Normal faculties" mean those faculties of a person such as 316.003(75) include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. "Actual physical control of a vehicle" means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. "Alcoholic beverages" are considered to be substances of any kind and description which contain alcohol. F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 percent or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. (2)(b)2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 percent but less than 0.08 percent, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired; or, (2)(c)3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 percent or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] or [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] or [her] normal faculties were impaired. Defense of It is a defense to the charge of driving or being in actual inoperability; physical control of a vehicle while under the influence if at the give if applicable time of the alleged offense the vehicle was inoperable, However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable.[*148] Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt. UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS F.S. 794.05 [NEW] Before you can find the defendant guilty of sexual activity with a minor, the State must prove the following three elements beyond a reasonable doubt: Elements 1. (Victim) was 16 or 17 years of age. 2. (Defendant) was age 24 or older. 3. [(Defendant) engaged in sexual activity with a minor in which the sexual organ of the [(defendant)] [(victim)] penetrated or had union with the [anus] [vagina] [mouth] of the [(victim)] [(defendant)]. Give if Sexual activity does not include an act done for a bona fide applicable medical purpose.
1 The revised schedule completely replaces the present version. The entire schedule, which is included in the appendix to this opinion, has been reorganized chronologically by statute number and also includes substantive changes.