In re Standard Jury Instructions in Criminal Cases-Report No. 2013-05 (153 So. 3d 192, 2014)

Citations

153 So. 3d 192

Full opinion text

PER CURIAM.

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

In 2013, this Court authorized for publication and use amended Standard Criminal Jury Instructions 25.9-25.13, which pertain to various drug trafficking offenses. See In re Std. Jury Instrs. in Crim. Cases— Instrs. 25.9-25.13, 112 So.3d 1211 (Fla.2013). In our opinion in that case, we asked the Committee to “review jury instructions 25.2-25.8 and make a recommendation to the Court whether any amendments to those instructions are warranted in light of the Court’s decision here, or in light of [State v.] Adkins [96 So.3d 412 (Fla.2012).]” We also asked the Committee for a recommendation as to “whether instructions 25.9-25.13 should be amended in light of Smith v. United States, — U.S. —, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013).” In re Std. Jury Instrs. in Crim. Cases, 112 So.3d at 1212. In response to our requests for recommendations on these points, the Committee has filed the current report proposing further amendments to the aforementioned instructions, proposing amendments to other standard instructions pertaining to drug offenses, and proposing two entirely new instructions. This Court directed that the proposals be published in The Florida Bar News. No comments have been filed with the Court in response to publication.

The Committee’s proposed changes affect the following existing criminal jury instructions: 25.2 (Drug Abuse — Sale, Purchase, Manufacture, Delivery, or Possession with Intent); 25.3 (Drug Abuse-Sale, Purchase, Delivery, or Possession in Excess of Ten Grams); 25.4 (Drug Abuse — Delivery to or Use of Minor); 25.5 (Drug Abuse — Bringing into State); 25.6 (Drug Abuse — Contraband in Specified Locations); 25.7 (Drug Abuse — Possession); 25.8 (Drug Abuse — Obtaining Controlled Substance by Fraud, etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in Morphine, Opium, Oxycodone, Hydrocodone, Hydromorphone, [or] Heroin); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in • Methaqualone); 25.14 (Drug Abuse — Use or Possession of Drug Paraphernalia); 25.15 (Drug Abuse — Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Drug Abuse — Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); and 25.18 (Contraband in Juvenile Facility). The Committee proposes that we also authorize for publication and use the following new instructions: 25. 20 (Possession of Contraband in or Upon the Grounds of a State Correctional Institution); and 25.21 (Introduction or Removal of Contraband into or from a State Correctional Institution). We authorize the proposed amended and new instructions for publication and use except as noted below.

In its report, the Committee states that it found the law was uncertain on the issue of whether “knowledge of presence” is a required element of certain drug offenses. With respect to certain offenses, the Committee found that “knowledge of presence” may or may not be an element. The Committee proposes to address this uncertainty by including optional instructions along with notes and comments to explain the issue.

Currently, Instruction 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent) lists the following as element 3: “Defendant had knowledge of the presence of the substance,” preceded by an advisory note saying, “Give if possession is charged.” The Committee proposes to change the advisory note to read: “Give element # 3 if Possession with Intent to Sell, Purchase, Manufacture or Deliver is charged. It is unclear whether element # 3 must be given for Sale, Manufacture, Delivery, or Purchase of a Controlled Substance. See Comment section.”

Current Instruction 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams) includes as element 3, “Defendant had knowledge of the presence of the substance,” preceded by a note saying, “Give if possession is charged.” The Committee proposes to change the note to read: “Give element #3 if possession is charged. It is unclear whether element # 3 must be given for Sale, Purchase, or Delivery of a controlled substance. See Comment section.”

Instruction 25.4 (Delivery to or Use of a Minor) does not currently include “knowledge of presence” as an element. The Committee proposes to add it as element 4, reading, “Defendant had knowledge of the presence of the substance,” preceded by a note saying, “It is unclear whether element # 4 must be given for Delivery of a Controlled Substance. See Comment section.”

Instruction 25.5 (Bringing into State) currently includes as element 3: “Defendant had knowledge of the presence of the substance.” The Committee proposes adding a note preceding element 3 reading, “It is unclear whether element # 3 must be given. See Comment section.”

Instruction 25.6 (Contraband in Specified Locations) currently includes as element 4: “Defendant had knowledge of the presence of the substance.” The Committee proposes to add the following advisory notes: “Give element # 4 if Possession with Intent to Sell, Manufacture or Deliver is charged. It is unclear whether element # 4 must be given for Sale, Manufacture, or Delivery of a Controlled Substance. See Comment section.”

With some variations in the language, the Committee proposes adding comments to all five of the above-listed instructions explaining the issue as follows:

Unlike the trafficking statutes, the statutes for these crimes do not contain the word “knowingly.” Also, the affirmative defense statute of section 893.101, Florida Statutes,, addresses only “knowledge of illicit nature” and not “knowledge of presence.” Because of case law, “knowledge of presence” is an element of possession, which is why [an instruction on knowledge of presence] must be given if the defendant is charged with [possession or possession with intent]. See State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether “knowledge of presence” is an element of [other offenses covered by these five instructions] or whether “lack of knowledge of presence” is an affirmative defense. In the absence of case law, trial judges must decide this issue.

We decline to authorize the Committee’s proposed amendments to these five instructions insofar as the treatment of “knowledge of presence” is concerned.

In State v. Adkins, 96 So.3d at 414-16, this Court addressed a facial challenge to the constitutionality of section 893.101, Florida Statutes (2011). The lower court had held that the statute’s purported elimination of the requirement of knowledge of the illicit nature of a controlled substance as an element of offenses under chapter 893, Florida Statutes (2011), was a violation of the requirements of due process of law under the United States and Florida Constitutions. This Court reversed that decision. See Adkins, 96 So.3d at 412, 423. In its analysis of the constitutionality of 893.101, the plurality opinion said, “The statute does not eliminate the element of knowledge of the presence of the sub-stance_” Id. at 416. An opinion concurring in result found that the statute “eontinue[d] to require the State to prove that a defendant had knowledge of the presence of the controlled substance as an element of drug-related offenses.” Id. at 424 (Pariente, J., concurring in result). The effect of section 893.101 was to exclude “knowledge of the illicit nature of a controlled substance” as an element of “any offense under this chapter.” In Adkins, in the process of finding the statute constitutional, a majority of the Court found that “knowledge of the presence” continued to be an element of drug-related offenses. More recently, the Court observed:

In Adkins, a majority of the Court held that the guilty knowledge element, in light of the express language in section 893.101, Florida Statutes (2011), is limited to knowledge of the presence of the substance sold, purchased, manufactured, delivered, or brought into the state. [96 So.3d] at 423. Knowledge of the illicit nature of the controlled substance is, under the statute, an affirmative defense.

In re Std. Jury Instrs. in Crim. Cases— Instrs. 25.9-25.13, 112 So.3d 1211, 1211 (Fla.2013).

We agree with the Committee that the issue of whether knowledge of the presence of the controlled substance is an element of a given offense may be a legal issue that must be decided based on the provisions of the particular statute, court decisions applying the statutes, and the circumstances of the case. But we do not agree that trial judges should be told that under certain circumstances the lack of knowledge of the presence of the substance should be treated as an affirmative defense. This is contrary to what we said in Adkins and In re Standard Jury Instructions. We therefore do not authorize those parts of the proposed amendments that address the treatment of “knowledge of presence” by indicating that under certain circumstances lack of knowledge of presence may be an affirmative defense. The notes and comments proposed by the Committee that address this point are not authorized for publication.

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

It is so ordered.

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

APPENDIX

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

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

1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

[sold]

[purchased]

[manufactured]

[delivered]

[possessed-with intent to sell]

[possessed with intent to — pur- . chase]

[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.

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemean- or. See § 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight.

3. or 4. The cannabis weighed more than 20 grams.

Definitions. Give as applicable.

Cannabis. §§§ 893.02(3); 893.13(3); 893.13(6) (b), Fla. Stats.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

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.

“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

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

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

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

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

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the controlled substance is in a place over which the {defendant) person has control, and the person has the ability to control the substance or — in which the (defendant) has-concealed-it,

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a controlled substance if — the controlled substance that was ⅛ in a place over- which the (defendant) [he][she] does did not have control, the State must prove the (defen-danfe) (1) knew that the substance was within [his][her] presence has-the control-over the controlled substance and (2) knowledge-that the-controlled substance was within-the (defendant’s) presence exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly possess an article, exercising exercise control over it. In that case, each of those persons is considered to be in possession of that article the substance.

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

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

Inferences.

Give if applicable. See McMillon v. State, 818 So.2d 56 (Fla.2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his][her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he][she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he][she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Knowledge -of-the illicit - nature — of—the controlled substanceAffirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 898.101(2) and (3), Fla. Stat.

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 to (crime charged). (Defendant) has raised this affirmative defense. However, y

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) [he][she] knew of the presence of the controlled substance and exercised control or ownership over the substance.was in actual or constructive possession of the controlled substance.

If from the evidence you are convinced beyond a reasonable doubt 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) [him][her] guilty of (crime charged).

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) [him][her] not guilty of (crime charged).

Lesser Included Offenses

Comment

If the State alleges the defendant possessed cannabis, in an amount more than 20 grams, with intent to sell, purchase, deliver, or manufacture the cannabis, there will be both a felony necessary lesser-ineluded offense of simple possession and a misdemeanor lesser-ineluded offense of simple possession._See Note §- § 89343(3) and 893.13(6)(b), Fla. Stat.T if-the-charge -involves possession or delivery-without consideration-of-not -more than 20-grams of cannabis.

If the State alleges the defendant possessed a controlled substance listed in § 893.03(l)(c)46.-50., 114.-142., 151.-159, or 166.-169., in an amount more than 3 grams, there will be both a felony necessary lesser-ineluded offense of simple possession and a misdemeanor necessary lesser-ineluded offense of simple possession. See § 893.13(6)(b).

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], and 2007 [969 So.2d 245], and 2014. 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(1)0»), (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] a certain substance that weighed more than 10 grams.

{soldi

[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 exereise the right-of-ownership, management, or-control over the thing possessed

Possession-may-be actual-or constructive

There are two ways to exercise control: actual possession and constructive possession.

Actual -possession.

Actual possession means the person is aware of the presence of the substance and:

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

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

c. The 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 controlled substance is not sufficient to-establish-eon-trol over that controlled-substance when it-is-not-in a place over which the person has control.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the controlled substance is in a place over which the (defendant) person has control, and the person has the ability to control the substance or in w-hich-the-(defendant) has concealed- it.

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a controlled substance if the controlled-substance that was is in a place over which the-(defendant) [he] [she] does did not have control, the State must prove the (defen-danfe) (1) knew that the substance was within [his][her] presence has the-control over the controlled substance and (2) knowledge that the controlled-snb-stance-was within the (defendant’s)-pres-enee exercised control or ownership over the substance itself.

Joint possession. •

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly possess-an article, exercising exercise control over it. In that case, each of those persons is considered to be in possession of that article-the substance.

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

If a person does not-have-e-xclnsive possession — of—Sr- controlled substance, knowledge of its-presence may not be inferred or assumed.

Inferences.

Give if applicable. See McMillon v. State, 813 So.2d 56 (Fla.2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So.Sd 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his][her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he][she] was aware of the presence of the substance and had the ability to control it.

Give if applicable. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).

Knowledge- of the illicit nature-of-the controlled substance. Affirmative defense: Lack, of knowledge of illicit nature. Give if applicable. § 898.101(2) and (3), Fla. Stat.

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 to (crime charged). (Defendant) has raised this affirmative defense. However, y

If from the — evidence you are convinced beyond a reasonable doubtthat (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) [him][her]guilty of (crime charged).

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) [him][her] not guilty of (crime charged).

Lesser Included Offenses

charged Attempt, except when delivery is charged 777.04(1) 5.1 If possession is charged 893.13(6)(a)

Comment

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [548 So.2d 1205], 1997 [697 So.2d 84], and-2007 [969 So.2d 245], and 2014. See also SC03-629-[869-§O;24 1205 (Fla.2004)-],

25.4 DRUG ABUSE-DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF MINOR

§ 893.13(4), 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] [four] elements beyond a reasonable doubt:

Give la, lb, or leas applicable.

1.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.

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

Definition.

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.

Knowledge of the ■ illicit-nature of the controlled substance- Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

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 to (crime charged). (Defendant) has raised this affirmative defense. However,-y

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) [him][her] not guilty of (crime charged).

Lesser Included Offenses

Comment

There is no crime of Attempted Delivery because the definition of “delivery” in § 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 2007 [969 So.2d 245], and 2014. See -also SC03-629-[869-So.2d 1205 (Fla.2004) ].

25.5 DRUG ABUSE BRINGING A CONTROLLED SUBSTANCE INTO THE 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) Bringing a Controlled Substance Into the State, the State must prove the following [two] [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:

st. — the controlled substance is in the hand of or on the person,-or-

b, — the controlled substance — is in a container in the-hand of or on-the person,-or-

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

Give if-appUcoMe?

Mere proximity to a controlled-substance is not sufficient to establish-control overthat-contr oiled substance-when it is not in a place-over-which the person has control-

Constructive — possession—means—the controlled-substance is in a place over which the (defendant)-has-control, or in which the (defendant) has concealed it»

In order to establish constructive-possession-of-a-eontrolled substance-if-the controlled substance is in a place over whic-h-the (defendant) does not have-eon-trol, the State must prove the (defendant's)-^!) control over the controlled substance and (2) knowledge that -the controlled-substance was within the (defendant’s-) presence.

Possession may be joint, that is, two or-more-persons may jointly possess -an ar-tiele — exercising control over -it. — I» that case, each of those persons-is-considered to be in possession-of-that-ar-ti-cle.

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

If a person does- not- have-exelusive possession of a controlled substance, knowledge of its presence may -not-be inferrred or assumed.

Knowledge of the -illicit-nature of the controlled mbstance.- Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

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 to Bringing a Controlled Substance Into the State. (Defendant) has raised this affirmative defense. However, y

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant-) [he][she] knew of the presence of the controlled substance and exercised control or ownership over the substance.was-in-aetual or constructive possession-of-the — controlled substance?

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) [him][her] not guilty of Bringing a Controlled Substance Into the State.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84] and 2007 [969 So.2d 245], and 2014. See also SCQ3-6294869 So.2d-1205 (⅜2004) ].

25.6 DRUG ABUSE — CONTRABAND SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS

§ 893.13(l)(c)-(f)T and (h) 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] [four] elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [possessed with intent to [sell] [manufacture] [deliver]] a certain substance.

[S0Id]

[manufactured]

[delivered]

[possessed with intent-to sell]

[possessed with intent to manu-

facture]

[possessed with intent-to deliver]

a certain substance.

Give — —⅜⅛—as applicable. § 893.13(l)(c)-(f) and (h), Fla. Stat.

2.⅜ — The [sale] [manufacture] [delivery] [possession with intent to [sell] [manufacture] [deliver]] took place in, on, or within 1,000 feet of: [the real property comprising a child care facility];

[the real property comprising a public or private [elementary], [middle]; or [secondary] school between the hours of 6:00 a.m. and 12:00 midnight]^

[the real property comprising [a state, county, or municipal park] [a community center] [a publicly-owned recreational facility];

[the real property comprising a public or private college, university, or other postsecondary educational institution];

[a physical place for worship at which a church or religious organization regularly conducts religious services];

[a convenience business]; [the real property comprising a public housing facility];

[the real property comprising an assisted living facility].

§ S93.18(l)(c-j), Fla. Stat

& — in, on, or within 1000 feet of [the real propel comprising-a public housing facility] [the real property comprising a public-or-private college, university, or other-postsecondary educational institution] [a 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],

3. The substance was (specific substance alleged).

4. (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. § 89S.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 construc-tive.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

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

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

c. The 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 controlled-substance-is not sufficient-to-establish-eon-trol-over- that controlled substance when it is not in a place-over which the person has control.

Constructive-possession?

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a controlled substance if the controlled substance that was is in a place over which the (defendant) [he][she] does did not have control, the State must prove the (defen-danfe) (1) knew that the substance was within [his][her] presence has the- control over — the-controlled substance and (2) knowledge that-the controlled-substance -was within the (defendant’s) presence exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly possess an article» ■ exercising exercise control over it. In that case, each of those persons is considered to be in possession of that article - the substance.

If-a-person has exclusive-possession of a controlled-substance» knowledge of its presence may be Inferred or assumed.

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

Inferences.

Give if applicable. See McMillon v. State, 813 So.2d 56 (Fla.2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 254 (Fla. 4th DCA 2011),

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his][her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he][she] was aware of the presence of the substance and had the ability to control it.

Give if applicable. See Duncan v. State, 986 So.2d 653 (Fla. 4th DCA 2008).

Definitions. Give as applicable.

Child care facility. § 102.302 Fla. Stat.

“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. § 812.171 Fla. Stat.

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. § 4-21.03(12) Fla. Stat.

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. § 893.13(l)(c) Fla. Stat.

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.

Assisted living facility. § 1-29.02(5) Fla. Stat.

“Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

Knowledge — of-the illicit nature of-the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

Knowledge- of- the-illieit- 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 to (crime charged). (Defendant) has raised this affirmative defense. However ⅛-y-

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance.was-in-actual or constructive possession- of -the-eontrolled substance.

Comment

■This instruction is based on section 89gr-lgr-Florida-Statutes (1997), and adapted from the ■ standard Instruction- on sale-of contraband near a school.

This instruction was adopted in 1981 and amended in 1989 [548 So.2d 1205], 1997 [697 So.2d 84], 2000 [765 So.2d 692], and 2007 [969 So.2d 245], and 2014. gee-alse SC03-629 [869 gfe2d-1205 (F-la.2004) ].

25.7 DRUG ABESE POSSESSION OF A CONTROLLED SUBSTANCE

§ 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) Possession of a Controlled Substance, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) possessed — a—certain substance knew of the presence of a substance.

2. The substance was -(specific substance alleged). (Defendant) exercised control or ownership over that substance.

3. (Defendant) had knowledge-of the presence of the - substance. The substance was (specific substance alleged).

§ 893.13(6)(b) Fla.Stat.- .

The jury must make a finding as to weight if the defendant is charged with possessing more than 20 grams of cannabis or more than 3 grams of a substance listed in § 89S.03(l)(c)j6-50, 1U-U2, 151-159, or 166-169 Fla. Stat.

4. The [cannabis weighed more than 20 grams] [ (insert name of substance listed in 893.03(l)(c)46-50, 114-142, 151-159, or 166-169) weighed more than three grams].

§ 893.1S(6)(c) Fla. Stat.

The jury must make a finding as to weight if the defendant is charged with violating § 893.13(6)(c) Fla. Stat.

4, The [ (insert name of substance listed in 893.03(l)(a) or 893.03(l)(b) 1 [combination of (insert names of substances listed in 893.03(l)(a) or 893.03(l)(b) ] [mixture containing (insert- name of substance listed in 893.03(l)(a) or 893.03(l)(b) ] weighed more than 10 grams.

Definitions.

Give if applicable. Cannabis. § § 893.02(3), 893.13(6)(b) Fla. Stat.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant].

Possession.

To "possess" means to have personalcharge of or exercise the right-of-ownership, management, or control-over — the thing-possessed, — Possession may-be actual or- constructive.There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

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

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

c. The 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 controlled-substance is not sufficient to establish control over that controlled substance when it is not in a place over-which the person has-controh

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the controlled substance is in a place over which the person (defendant) has control, and the person has the ability to control the substance, or in which the (defendant) has concealed-itr

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a controlled substance if the controlled substance that was is in a place over which the (defendant) [he][she] does did not have control, the State must prove the (defen-danfe) (1) knew that the substance was within [his][her] presence has the control over the controlled substance and (2) knowledge that the controlled substance was within the (defendant’s) presence exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of a substance and may jointly possess- an article exercising exercise control over it. In that case, each of those persons is considered to be in possession of that article the substance.

If a person has exclusive possession of a- controlled-suhstancerknowIedge of- its presence may be inferred or assumed*

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

Inferences.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012)-, Meme v. State, 72 So.Sd 254. (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his][her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he][she] was aware of the presence of the substance and had the ability to control it.

Give if applicable. Duncan v. State, 986 SoM 653 (Fla, jth DCA 2008).

Knoivledge of the illicit nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 898.101(2) and (3), Fla. Stat.

Knowledge of the illicit nature of the controlled-substance-is- not an element of the offense of (insert name of offenso charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the crime of Possession of a Controlled Substancé. (Defendant) has raised this affirmative defense. However, y

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) [he][she] knew of the presence of the substance and exercised control or ownership over the substance. was-in actual-or constructive possession of the controlled- substance.

Lesser Included Offenses

No — lesser-included-offenses have been identified for this offense.

Comment

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

Fla. Stat. § 893.21

A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be prosecuted for Possession of a Controlled Substance if the evidence of the possession was obtained as a result of the person’s seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or superficial possession. See cases such as Hamilton v. State, 732 So.2d 493 (Fla. 2d DCA 1999) and Sanders v. State, 563 So.2d 781 (Fla. 1st DCA 1990).

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], and 2007 [969 So.2d 245], and 2014. See also SC03-629 [869-So^d 1205 (FIa.2004)-]»

25.8 DRUG ABUSE — OBTAINING A 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 [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], the State must prove the following three elements beyond a reasonable doubt:

[Misrepresentation]

fFranHl

LA A UUUJ

[Forgery]

[Deception]

[Subterfuge]

the State must prove the following-three elements beyond a reasonable-doubk

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] [sub-

terfuge].

[misrepresentation].

[fraud],

[forgery].

[deception].

Affirmative defense: Lack of kKnow-ledge of the illicit nature of the controlled substance. , Give if applicable. § 893.101(2) and (3), Fla. Stat.

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 to the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], (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-(-defen4ant) was-in-aGtual-or-constr-uetive possession of-the-Gontrolled substance.

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. Read explanation of actual and/or constructive possession, as applicable.

If from-the evidence you are convinced beyond a reasonable doubt 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) [him][her] guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 2007 [969 So.2d 245], and 2014. See-ateo SC03-629 [869-So.2d 1205 (⅞2004⅛

25.9 TRAFFICKING IN CANNABIS

§ 893.135(l)(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 three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[sold]

[purchased]

[manufactured]

[delivered]

[brought-into-Florida]

[possessed]

a certain substance,

2. The substance was cannabis.

3. The cannabis [weighed more than 25 pounds] [constituted 300 or more cannabis plants].

If applicable under the facts of the case and pursuant to § 898.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cannabis, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in § 893.135(1), Fla. Stat.)T.

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cannabis.

Definitions. Give as applicable.

Cannabis. § 893.02(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(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.

%hTo “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

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

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

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

c. The 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 controlled substance-is not sufficient-to-establish control-over- that controlled substance-when it is-not-in a place over-w-hich the person has control

Constructive possession.

Give jf applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant’s) constructive possession of a controlled substance if- the-controlled substance that was is in a place over which- the (defendant) [he][she] does did not have control, the State must prove the (defen-danfe) (1) knew that the substance was within [his][her] presence has-the-eon-trol over the controlled-substance and (2) knowledge that^the controlled-substance was within the (defendant’s)-pres-enee exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly possess — an articled-exercising exercise control over it. In that case, each of those persons is considered to be in possession of that article-the substance.

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

Inferences.

Give if applicable. See McMillon v. State, 813 So.2d 56 (Fla.2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So.Sd 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 25k (Fla, kth DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his][her] control, [or]

c. had exclusive control of the place where the substance was located,

you may infer that [he][she] was aware of the presence of the substance and had the ability to control it.

A special instruction is necessary-where the premises is jointly occupied-and the contraband is located in a common area, in plain-vieuk-emd-in-the -presence of the oioner or oc&upant. — Give if applicable. See Duncan v. State, 986 So.2d 653 (Fla. kth DCA 2008),

If a person does-not have exclusive possession of — a controlled substance, knowledge of - its presence may not be inferred or assumed. However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he][she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Knoivledge -of — the-.illicit -nature of the controlled substance. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to Trafficking in Cannabis. The -defendant (Defendant) has raised this defense. 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.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he][she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt 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 [him][her] guilty of Trafficking in Cannabis.

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) [him][her] no