In re Standard Jury Instructions in Criminal Cases (No. 2005-3) (969 So. 2d 245, 2007)

Citations

969 So. 2d 245

Full opinion text

PER CURIAM.

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

On August 18, 2005, the Committee filed a report proposing amendments to a number of drug abuse and trafficking instructions, and proposing several new instructions with regard to various offenses involving lewd and lascivious conduct. The proposals were published for comment in The Florida Bar News on October 15, 2005. In response to comments received and upon the Committee’s further independent review, the Committee determined that it was necessary to amend the proposals, both substantively and to correct errors in stylistic format, grammar, spelling, and punctuation. The Committee ultimately filed, on September 26, 2006, an amended report requesting authorization of its amended proposals.

The Committee proposes two substantive amendments to the drug abuse and trafficking instructions: instructions 25.2 through 25.16. Both amendments are in response to chapter 2002-258, Laws of Florida (codified as section 893.101, Florida Statutes (2006)), which provides as follows:

893.101 Legislative findings and intent.—

(1) The Legislature finds that the cases of Scott v. State, 808 So.2d 166 (Fla.2002), and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those eases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

The Committee first proposes that a portion of the explanation of constructive possession in the drug abuse and trafficking instructions be amended to delete “knowledge of the illicit nature” of a substance as an element. Next, the Committee recommends adding several paragraphs to each drug abuse and trafficking instruction in order to reflect the affirmative defense and permissive presumption set forth in section 893.101(2)-(3), Florida Statutes (2006).

The Committee also proposes six new instructions with regard to various offenses involving lewd and lascivious conduct. These new instructions are based upon section 800.04, Florida Statutes (2006), entitled, “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”

Upon consideration and with several modifications to the Committee’s proposals, we hereby authorize the publication and use of the amended drug abuse and trafficking instructions and new lewd and lascivious offense instructions 11.10(a) and 11.10(b), as set forth in the appendix attached to this opinion. New language is indicated by underlining, and deletions are indicated by struck-through type. We decline to authorize proposed instructions 11.10(c), 11.10(d), 11.10(e), and 11.10(f), and refer these instructions back to the Committee for further consideration.

In authorizing the publication and use of standard jury instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution that the comments associated with the instructions reflect only the views of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

25.2 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT

§ 893.13(l)(a) and(2)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

To prove the crime oficrime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:

1. (Defendant)

[sold]

[purchased]

[manufactured]

[delivered]

[possessed with intent to sell] [possessed with the intent to purchase]

[possessed with intent to manufacture]

[possessed with intent to deliver]

a certain substance.

2. The substance was (specific substance alleged).

Give if possession is charged.

3. (Defendant) had knowledge of the presence of 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. § 893.02(123) (a), Fla. Stat.

“Manufacture” means the production, preparation, 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, § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. the thing controlled substance is in the hand of or on the person, or

b. the thing controlled substance is in a container in the hand of or on the person, or

c. the thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to a thing controlled substance is not sufficient to establish control over that thing controlled substance when the — thing it is not in a place over which the person has control.

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

Gwe-if-appllicable-. — See Chicone v. State, 684 So.2d 736 (Fla,1996),

I-f-a-thing is in-a -place over which the person-does not have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person’s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person’s(defendant’s) presence? — and- (3)- knowledge of the illicit nature of the thing.

Possession may be joint, that is, two or more persons may jointly have possession of possess 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 controlled substance, knowledge of its presence may be inferred or assumed.

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 898.101(2) and (3).

Knowledge of the illicit nature of the controlled substance is not an element of the offense of [insert name of offense charged]. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.

If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Lesser Included Offenses

Comment

Note §§ 893.13(1)(g) 893.13(3) and 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.

If the defense seeks to show-a-Iack-of knowledge as to the nature of a particular drugy an additional instruction may be required. — See State v. Medlin 273 So.2d 394 (Fla.1973-).

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.3 DRUG ABUSE — SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS

§ 893.13(l)(b), (2)(b), and (6)(c), Fla. Stat.

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.

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

1. (Defendant)

[sold]

[purchased]

[delivered]

[possessed]

more than 10 grams of a certain substance.

2. The substance was (specific substance alleged).

Give if possession is charged.

3. (Defendant) had knowledge of the presence of 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.

Deliver § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. the thing controlled substance is in the hand of or on the person, or

b. the thing controlled substance is in a container in the hand of or on the person, or

c. the thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to a thing controlled substance is not sufficient to establish control over that thing controlled substance when the-thing it is not in a place over which the person has control.

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

Give-ifappllicable-. — See Chicone v. State,684 So.2d 736 (Fla.1996)

tf-a-thing-is-in-a-plaee-over- which the person does not have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State, must prove the persords(defen-dant’s) (1) control over the thmg,con-trolled substance and (2) knowledge that the thingcontrolled substance was within the person-s(defendant’s) presence, and (3) knowledge of the illicit nature of the thing.

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

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (S), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Lesser Included Offenses

Comment

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 State-v. Medlin, 273 So.2d 394 (Fla.1973). 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.4 DRUG ABUSE — DELIVERY TO OR USE OF MINOR

§ 893.13(4), Fla. Stat.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

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

1. Give 1a, 1b, or leas applicable.

L_a. [ (Defendant) delivered a certain substance to a person under the age of 18 years.]

b. [ (Defendant) used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance.]

c. [ (Defendant) used a person under the age of 18 years to assist in avoiding detection or apprehension for (violation of chapter 893, Fla. Stat., alleged).]

2. The substance was (specific substance alleged).

3. (Defendant) was 18 years of age or older at the time.

Definition.

Deliver. § 898.02(5), Fla. Stat.

“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.

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 898.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.5 DRUG ABUSE — BRINGING INTO STATE

§ 893.13(5), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

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

1. (Defendant) brought a certain substance into Florida.

2. The substance was (specific substance alleged).

3. (Defendant) had knowledge of the presence of the substance.

Definition.

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.

Actual possession means:

a. Tthe thing controlled substance is in the hand of or on the person, or

b. Tthe thing controlled substance is in a container in the hand of or on the person, or

c. Tthe thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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

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

Give -if applicable. — See-Chicone v. State, 684 So.2d 736 (Fla.1996).

I-f-a-thing-is-in a place over which the person-does not have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person’s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person’s(defendant’s) presence, — and-(3-)—know-ledge-of—the-illicit nature-of the thing.

Possession may be joint, that is, two or more persons may jointly have possession-of possess 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 controlled substance, knowledge of its presence may be inferred or assumed.

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 898.101(2) and (S), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Comment

ff-the-defense- seeks to show a lack of knowledge as to the nature of a particular drug, an ^d41tional-instr-uction-may-be required. — See-State v. Medlini 273 So,2d 394 (Fla.1973),

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84] and 2007. See also SC03-629 [869 So.2d 1205 (Fla. 2004) ].

25.6 DRUG ABUSE — CONTRABAND IN SPECIFIED LOCATIONS

§ 893.1 (c)-(f), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance. To prove the crime of (crime charged), the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant)

[sold]

[manufactured]

[delivered]

[possessed with intent to sell] [possessed with intent to manufacture]

[possessed with intent to deliver] a certain substance.

Give 2a, or 2b or c as applicable. § 893.13(1)(c), Fla. Stat

2. a. in, on, or within 1,000 feet of the real property comprising a child care facility or a public or private elementary, middle, or secondary school between the hours of 6:00 a.m. and 12:00 aum midnight, s. 893.13(1)(c)

§ 893.13(1) (c-j), Fla. Stat.

b. in, on, or within 200 1000 feet of [the real property comprising a public housing facility] [the real property comprising a public or private college, university, or other postsecondary educational institution] [a public state, county or municipal park] [a community center] [a publicly owned recreation facility] [a physical place for worship at which a church or religious organization regularly conducts religious services] [a convenience_business]. & 893.13(1)(d)

c, — in, on, or — within-1000 feet of [a physical — place—for—worship—at which a church or religious organization regularly — conducts a religious services] [a convenience business], -§-893-.-13(1)(e)

3. The substance was (specific substance alleged).

4.(Defendant) had knowledge of the presence of the substance.

Definitions⅛ §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. § 893.02(13)(a), Fla. Stat.

Deliver. § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. Tthe thing controlled substance is in the hand of or on the person, or

b. Tthe thing controlled substance is in a container in the hand of or on the person, or

c. Tthe thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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

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

Gwe-if-cuppUeaMer

If a thing is in a place over which the person does not have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person-s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person’s(defendant’s) presence, and (3) knowledge of the illicit nature of the thing.

Possession may be joint, that is, two or more persons may jointly have - possession-of possess 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 controlled substance, knowledge of its presence may be inferred or assumed.

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

Definitions. Give as applicable.

Child care facility.

“Child care facility” means any child care center or arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care. It does not matter if the child care facility is operated for profit or as a nonprofit operation.

Convenience business.

A “convenience business” means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m. The term does not include any of the following: a business that is primarily a restaurant, or one that always has at least five employees on the premises after 11 p.m. and before 5 a.m., or one that has at least 10,000 square feet of retail floor space. The term “convenience business” also does not include any business in which the owner or members of [his] [her] family work between the hours of 11 p.m. and 5 a.m.

Real property comprising a public housing facility.

The term “real property comprising a public housing facility” is defined as the real property of a public corporation created as a housing authority by statute.

Community Center.

The term “community center” means a facility operated by a nonprofit community-based organization for the provision of recreational, social, or educational services to the public.

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Comment

This instruction is based on section 893.13, Florida Statutesy (1997), and adapted from the standard instruction on sale of contraband near a school. In Chicone v. State, 684 So.2d 736 (Fla.1996), the court defined- the-elements of constructive possession that apply if the defendant-has-no control over the place where the contraband was-found.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], and 2000 [765 So.2d 692], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.7 DRUG ABUSE — POSSESSION

§ 893.13(6)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

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

1. (Defendant) possessed a certain substance.

2. The substance was (specific substance alleged).

3. (Defendant) had knowledge of the presence of the substance.

Definition^

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.

Actual possession means:

a. The thing controlled substance is in the hand of or on the person, or

b. The thing controlled substance is in a container in the hand of or on the person, or

c. The thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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

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

Give if applieable — See-Chicone v. State 684 So.2d 736 Fla.1996)

If a thing is in a place over which the person does not have control,-iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person^defendant’s) (1) control over the thi«g,con-trolled substance and (2) knowledge that the thingcontrolled substance was within the person’s (defendant’s) presence, and (3) — knowledge of the illicit nature of the thing.

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

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § F.S. 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

If the defense-seeks to show-a-lack-ef knowledge as to the nature of a particular drug, an additional instruction may be required- — See State v. Medlin, 273 So.2d 394 (Fla.1973).

Note § 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205] and 1997 [697 So.2d 841, and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.8 DRUG ABUSE — OBTAINING CONTROLLED SUBSTANCE BY FRAUD, ETC.

§ 893.13(7)(a)9, Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) is a controlled substance.

To prove the crime of Obtaining a Controlled Substance by

[mMisrepresentation]

[fFraud]

[fForgery]

[dDeception]

[sSubterfuge]

the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [acquired or obtained] [attempted to acquire or obtain] possession of a certain substance.

2. The substance was (specific substance alleged).

3. (Defendant) [acquired or obtained] [attempted to acquire or obtain] the substance by

[misrepresentation].

[fraud].

[forgery].

[deception].

[subterfuge].

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 898.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 1989, and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.9 TRAFFICKING IN CANNABIS

§ 893.135(1)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Cannabis is a controlled substance.

To prove the crime of Trafficking in Cannabis, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly

[sold]

[purchased]

[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 25 pounds] [300 or more of cannabis plants].

See State v. Dominguez, 509 So.2d 917 (Fla.1987).

4. (Defendant) knew that the substance was cannabis.

If applicable under the facts of the case and pursuant to § 898.185(2), Fla. Stat, the following bracketed language should be given instead of element U above. For example, if it is alleged that the defendant intended to sell heroin, but actually sold cannabis, the alternate element U would be given.

[4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla. Stat.), but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cannabis.]

Definitions. Give as applicable.

Cannabis. § 898.02(8), Fla. Stat.

“Cannabis” means all parts of any plant of the genus Cannabis whether growing or not.

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. § 893.02(123)(a), Fla. Stat.

Deliver. § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. The thing controlled substance is in the hand of or on the person, or

b. The thing controlled substance is in a container in the hand of or on the person, or

c. The thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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

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

Gwe-if-appUeable-. — See Chicone v. State, 684-So.2d 736(Fla.1996)

If a thing is in a place over which the per-son-does-not-have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person’s(defendant’s) (1) control over the thing, controlled substance and (2) knowledge that the thingcontrolled substance was within the person’s(defendant’s) presence, — and-(-3-)—k-now-ledge-ofthe^

Possession may be joint, that is, two or more persons may jointly have-possession of possess 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 controlled substance, knowledge of its presence may be inferred or assumed.

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

See State v. Weller, 590 So.2d 923 (Fla. 1991)._

The--punishment provided by law for the crime of Trafficking in Cannabis is greater depending on the amount of cannabis — involved.—Therefore, ilf you find the defendant guilty of tTrafficking in eCannabis, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(1)(a)1.-3., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The quantity of the substance involved was [in excess of 25 pounds but less than 2,000 pounds.] [300 or more cannabis plants but not more than 2,000 cannabis plants.]]

b. [The quantity of the substance involved was [2,000 pounds or more but less than 10,000 pounds.] [2,000 or more cannabis plants but not more than 10,000 cannabis plants.]]

c. [The quantity of the substance involved was [10,000 pounds or more.] [10,000 or more cannabis plants.]]

Comment

This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.10 TRAFFICKING IN COCAINE

§ 898.135(1)(b), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Cocaine or any mixture containing cocaine is a controlled substance.

To prove the crime of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly

[sold]

[purchased]

[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.

See State v. Dominguez, 509 So.2d 917 (Fla.1987).

4. (Defendant) knew that the substance was [cocaine] [a mixture containing cocaine].

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., the following bracketed language should be given instead of element k above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, the alternate element k would be given.

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, § 893.02(123)(a), Fla. Stat.

Deliver, § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. The thing controlled substance is in the hand of or on the person, or

b. The thing controlled substance is in a container in the hand of or on the person, or

c. The thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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

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

Give if applicable-. — See Chicone v. Stater 684 So.2d 736 (Fla.1996),

If a thing is in a place over which the person does not have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person-s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thing, controlled substance was within the person’s(defendant’s) presence, and (3) knowledge of the illicit nature of the thing.

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

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

See State v. Weller, 590 So.2d 923 (Fla. 1991).

The punishment provided by law for the crime of Trafficking in Cocaine is greater — depending on the -amount of cannabis involved. — Therefore, ilf you find the defendant guilty of ^Trafficking in «Cocaine, you must further determine by your verdict whether the State has further proved beyond a reasonable doubt that:

Enhanced penalty. Give if applicable up to extent of charge.

a. [The quantity of the substance involved was in excess of 28 grams or more 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 but less than 150 kilograms.]

d. [The quantity of the substance involved was 150 kilograms or more. but-Iess-than 300 kilograms,]

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and 1997, [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.11 TRAFFICKING IN ILLEGAL DRUGS

§ 893.135(l)(c), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance alleged) or any mixture containing (specific substance alleged) is a controlled substance.

To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly [sold]

[purchased]

[manufactured]

[delivered]

[brought into Florida]

[possessed]

a certain substance.

2. The substance was [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [ (specific substance alleged) ] [a mixture containing [morphine] [opium] [oxyco-done] [hydrocodone] [hydromor-phone] [heroin] [ (specific substance alleged) ]].

3. The quantity of the substance involved was 4 grams or more.

See State v. Dominguez, 509 So.2d 917 (Fla.1987).

4. (Defendant) knew that the substance was [morphine] [opium] [ox-ycodone] [hydrocodone] [hydromor-phone] [heroin] [(specific substance alleged) ] [a mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [ (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, § 893.02(123) (a), Fla. Stat.

Deliver, § 893.02(5), Fla. Stat.

“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.

Actual possession means:

a. The thing controlled substance is in the hand of or on the person, or

b. The thing controlled substance is in a container in the hand of or on the person, or

c. The thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to a thing controlled substance is not sufficient to establish control over that thing controlled substance when the-thing it is not in a place over which the person has control.

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

Give if applicable. — See Chicone v. State, 684 So.2d 736 Fla.1996)

If a thing is in a-place over which the person does not have-control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person’s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person’s(defendant’s) presence, and (3) knowledge of the illicit nature-of-the thing.

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

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

See State v. Weller, 590 So.2d 923 (Fla. 1991).

The punishment provided-by-law — for the crime of Trafficking in Illegal Drugs is greater depending on the amount-of (specific — substance—alleged)—involved, Therefore, ilf you find the defendant guilty of trafficking in illlegal dDrugs, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. Give if applicable up to extent of charge.

a. [The quantity of the substance involved was in excess of 4 grams or more 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 but less than 30 kilograms.]

d. [The quantity of the substance involved was 30 kilograms or more.]

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [509 So.2d 917], 1989, [543 So.2d 1205], and 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.12 TRAFFICKING IN PHENCYCLIDINE

§ 893.135(1)(d), Fla.Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Phencyclidine or any mixture containing phencyclidine is a controlled substance.

To prove the crime of Trafficking in Phencyclidine, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly

[sold]

[purchased]

[manufactured]

[delivered]

[brought into Florida]

[possessed]

a certain substance.

2. The substance was [phencyclidine] [a mixture containing phencycli-dine].

3. The quantity of the substance involved was 28 grams or more.

See State v. Dominguez, 509 So.2d 917 (Fla.1987).

4. (Defendant) knew that the substance was [phencyclidine] [a mixture containing phencyclidine].

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., the following bracketed language should be given instead of element 4 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, the alternate element I would be given.

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, § 893.02(123)(a), Fla. Stat.

Deliver, § 893.02(5), Fla.Stat.

“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.

Actual possession means:

a. The thing controlled substance is in the hand of or on the person, or

b. The thing controlled substance is in a container in the hand of or on the person, or

c. The thing controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable^

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

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

Give if applicable-. — See Chicone v. State, 684 So.2d 736 (Fla.1996).

If a thing is in a place over which-the person does not-have control, iln order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the person’s(defendant’s) (1) control over the thing,controlled substance and (2) knowledge that the thingcontrolled substance was within the person-’s(defendant’s) presence, — and—(3)-4enowledge-of-the-411ieit nature of-the-thing.

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

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

Knowledge of the illicit nature of the controlled substance. Give if applicable. § 893.101(2) and (3), Fla. Stat.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

See State v. Weller, 590 So.2d 923 (Fla. 1991).

The punishment provided by law — for-the crime-of — Tr-afficking in Phencycli-dine is greater depending-on the amount of phencyclidine involved. — Therefore, ilf you find the defendant guilty of ^Trafficking in pPhencyclidine, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. Give if applicable up to extent of charge.

a.[The quantity of the substance involved was in- excess of 28 grams or more 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.] but-less-than- 800 grams,]

Comment

This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], and: 1997 [697 So.2d 84], and 2007. See also SC03-629 [869 So.2d 1205 (Fla.2004) ].

25.13 TRAFFICKING IN METHAQUALONE

§ 893.135(1)(e), Fla. Stat.

Certain drugs and chemical substances are by law known as “controlled substances.” Methaqualone or any mixture containing methaqualone is a controlled substance.

To prove the crime of Trafficking in Methaqualone, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly

[sold]

[purchased]

[manufactured]

[delivered]

[brought into Florida]

[possessed]

a certain substance.

2. The substance was [methaqual-one] [a mixture containing metha-qualone].

3. The quantity of the substance involved was 28 200 grams or more.

See State v. Dominguez, 509 So.2d 917 (Fla.1987).

4. (Defendant) knew that the substance was [methaqualone] [a mixture containing methaqualone].

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., the following bracketed language should be given instead of element I above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, the alternate element 4 would be given.

[4. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla.Stat.), but actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methaqualone or a mixture containing methaqualone.]

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. § 893.02(13)(a), Fla. Stat.

Deliver. § 893.02(5), Fla. Stat.

“Deliver” or “delivery