In re Standard Jury Instructions In Criminal Cases-Report No. 2015-03 (191 So. 3d 291, 2016)

Citations

191 So. 3d 291

Full opinion text

PER CURIAM.

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

The Committee proposes amending the following existing standard criminal jury instructions: 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Purchase, Manufacture, or Deliver a Controlled Substance); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams of a Controlled Substance); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.7 (Possession of a Controlled Substance); 25.8 (Obtaining a Controlled Substance by Fraud, Etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in [Morphine] [Opium] [Hydromorphone] [Heroin] [ (Specified Substance Alleged) ]); 25.12 (Trafficking in Phencycli-dine); 25.13 (Trafficking in Methaqualone); 25.14 (Use or Possession with Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program]); 25.20 (Possession of Contraband [In] [Upon the Grounds of] a State Correctional Institution); and 25.21 ([Introduction] [Rémoval] of Contraband [Into] [From] a State Correctional Institution). The Committee also proposes the following new jury instructions: 25.11(a) (Trafficking in Hydroco-done); 25.11(b) (Trafficking in Oxycodone); 25.13(a) (Trafficking in [Amphetamine] [Methamphetamine]); 25.13(b) (Trafficking in Flunitrazepam); 25.13(c) (Trafficking in [GHB] [GBL] [1,4-Butanediol]); 25.13(d) (Trafficking in Phenethylamines (Includes MDMA)); and 25.13(e) (Trafficking in LSD). The Committee published its proposals in The Florida Bar News. One comment was received by the Committee. The Court did not publish the proposals after they were filed.

Having considered the Committee’s report and the comment submitted to the Committee, we amend the standard jury instructions as proposed by the Committee, with one exception, and authorize them for publication and use. While the Committee expressed the belief that the existing explanation of constructive possession in the majority of instructions they sought to amend was deficient, the Court is unaware of any case law that has held the current explanation of constructive possession deficient or that has redefined constructive possession from that in the existing drug trafficking jury instructions. For that reason, we decline to alter the explanation of constructive possession in the jury instructions herein under consideration.

The new and amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. 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 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 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE

§ 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-) three elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] 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 § 893.18(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. Give if-applicable.

3, or 4. — If you find that (defendant) is guilty of Delivery of Cannabis, you must then determine if the State proved beyond a reasonable doubt that theThe cannabis weighed more than 20 grams.

Definitions. Give as applicable.

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

See Comment section for medical marijuana.

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(135)(a), Fla. Stat. '

“Manufacture” means the production, preparation,- paGkagingrlabeling 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, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis,' and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable.

The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course, of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver. §. 893.02(56), 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.

Poésession.

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

Actual possession.

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

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

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

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

'Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control ©ver-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 substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) 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 exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

Give if applicable. ■ § 898.02(19), Fla. Stat.

“Possession” includes temporary possession for the purpose of verification, or testing, irrespective of dominion or control.

Inferences.

Give-if-applicable-. — See.M&Mülon-v, Stater-813-Seh2dr56-(Fla-2002-h

You are permitted-to-infer that-a-person — who—s^lls-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 26k (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 power and intention 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 power and intention 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- power and intention to control it it [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.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicablethere is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). (Defendant) has raised this defense.

You are permitted topresume infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the controlled substánce arid exercised control or ownership over the substance/

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

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

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

Lesser Included Offenses

Comments

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-included offense of simple.possession and a misdemeanor lesser-included offense of simple possession. See 893.13(6)(b), Fla. Stat.

If the State alleges the defendant possessed a controlled substance listed in § 893.03(l)(c)46.;50., 114.442., 161.469, or 166.46973., in an amount more, than 3 grams, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor necessary lesser-included offense of simple possession. See § 893.13(6)(b)-, Fla. Stat.

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.

In 2014, the legislature passed laws pertaining to medical marijuana, also known as “low-THC cannabis,” which is excluded from the definition of “cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(l)(b), Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [643 So.2d 1206], 1997 [697 So.2d 84], 2007 [969 So.2d 246], and 2014 [163 So.3d 192], and 2016.

25.3 SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS OF A CONTROLLED SUBSTANCE

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

This instruction mil 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 fo!lowing(appli-cable number) three elements beyond a reasonable doubt:

1. (Defendant) [sold] [purchased] [delivered] [possessed] a certain substance that weighed more than JO grams.

2. The substance was (specific substance alleged).

Give4fpossession4s-eharffe4

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. § 898.02(5-6), 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.

There are two ways4o-e-xegcise-eo»tr-ol types of possession: actual possession and constructive possession.

Actual possession.

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

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

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

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

Constructive possession.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to controlover 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 substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence and (2) exercised control or ownership' over the substance itself.

Joint possession.

Give if applicable. § 898.02(19), Fla. Stat.

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

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

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.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- power and intention 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 abilitypower and intention 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- power and intention 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.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). (Defendant) has raised this defense.

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

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.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elemfents of the charge have been proved, you should find [him] [her] guilty of (crime charged). . .

If you haye a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of (crime charged).

Lesser Included Offenses

Comments

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], 2007 [969 So.2d 245], and 2014 [153 So.3d 192], and 2016.

25.4 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, and/or lc as 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 sub- ' stance 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(56), Fla. Stat.

“Deliver” or “delivery” means the actual, cdnstructive, or attempted transfer fí’óm one person to another of a controlled substance, whether, or not there is an agency relationship.

Affirmative defense: Lack of knowledge of illicit nature. . Give if applicable there is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). (Defendant) has raised this defense.

You are permitted to presume infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the 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 [him] [her] not guilty of (crime charged).

Lesser Included Offenses

Comments

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], 2007 [969 So.2d 245], and-2014 [153 So.3d 192], and 2016.

25.5 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 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.

Affirmative defense: Lack of knowledge of illicit nature. Give if awlieabMhere is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to Bringing a Controlled Substance Into the State. (Defendant) has raised this defense.

You are permitted to presume infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the 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 [him] [her] not guilty of Bringing a Controlled Subs^ance the State,

Lesser Included Offenses

Comments

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84], 2007 [969 So.2d 245], and-2014 [153 So.3d 192], and 2016.

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

§ 893.13(l)(c)-(f) 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] [fourj elements beyond a reasonable doubt:

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

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

2. 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] [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].

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. i

Manufacture. § 893.02(135)(a), Fla. Stat.

“Manufacture” means the production, preparation,.packagingTlab&Iing-oi--rela-beling, propagation, compounding; cultivating, growing, conversion.or.processing of a controlled-substance,- either-directly-or indirectly. — Manufacturing can-be by-extr-action-feom-substances-of natural — origin,—or—independently—by means of chemical synthesis. — It-can also-be-by-a-combination of extraction and chemical — synthesis, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable. -

The term “manufacture” does not include the preparation, compounding) packaging, or labeling of a controlled substance by;

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver. § 898.02(56), 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.

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

Actual possession.

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

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

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

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

Constructive possession.

Give if applicable.

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

Give if applicable.

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 exercise control over it. In that case, each of those persons is considered to be in possession of the substance.

• Give if applicable. § 893,02(19), Fla. Stat

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Give-4f — applicable.—See McMiUm^v, StaterS13-So.2d 56 (Fla.2002).

¥ou-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 251 (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-power, and intention 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 theability power and intention 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 power and intention to control it if [he] [she] had joint control over the place where the sübstance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

Child care facility. § 102.302, Fid. 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. § 4.21.08(12), Rla. 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. § 429.02(5)t 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.

Affirmative defense: Lack of knowledge of illicit nature. Give if appUGablethere is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged). (Defendant) has raised this defense.

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

Give if applicable. See McMillan 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.

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

Lesser Included Offenses

Comments

This instruction was" adopted in 1981 and amended in 1989 [543 So.2d 1205], 1997 [697 So.2d 84], 2000 [765 So.2d 692], 2007 [969 So.2d 245], and 2014 [153 So.3d 192], and 2016.

25.7 POSSESSION OF A CONTROLLED SUBSTANCE

§ 893.13(6), 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 Possession of a Controlled Substance,... the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) knew of the presence of a substance.

2. (Defendant) exercised control or ownership over that substance.

3. The substance was (specific substance alleged).

§ 893.13(6)(b)1Fla: Stat Give if applicable

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 § 893.03(1) (c)i6~_50,. 1U-U2, 151-_ 159, or 166-lW[3_Fla. Stat.

4. The [cannabis weighed more than 20 grams] [ (insert name of substance listed in 893.03(l)(c)46-50, 114442, 151459, or 16646973) weighed more than three grams],

§ 893.13(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 89B.08(l)(a) or 89B.08(l)(b) ] [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. \ Ccmnabis. § § 893.02(3), 893.13(6)(b),_Fla. Stat. ,

See Comment section for medical marijuana.

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.

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

Actual possession.

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

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

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

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

Constructive possession.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control ©ver-that substance when the substance is in a place that the person does not control.

Give if applicable.

Joint possession.

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

Give if applicable. § 893.02(19), Fla. Stat.

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Exclusive control. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So.3d 251 (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-power and intention 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-power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So.2d 658 (Fla. 4th DGA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability.power and intention 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.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicablethere is evidence that' the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Possession of a Controlled Substance. (Defendant) has raised this defense.

You are permitted to presume infer 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 have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Possession of a Controlled Substance.

Lesser Included Offenses

Comments

Fla.-Stak § 893.21, Fla. Stat.

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], 2007 [969 So.2d 245], and 2014 [153 So.3d 192], and 2016.

25.8 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:

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];

Affirmative defense: Lack of knowledge of illicit natme. Give if applieablethere is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the 'substance, but did not know of its illicit nature. § ■893.101(2) and'(3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge]. (Defendant) has raised this defense.

You are permitted to presume infer 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 you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not 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.

Comments

In 2014, the legislature passed laws pertaining; to medical marijuana, also known as “low-THC cannabis,”'which is excluded from the definition • of “cannabis” in § 893.02(3), Fla. Stat.; is defined in § 381.986(l)(b), Fla. Stat.; and must be manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with § 381.986, Fla. Stat. A special instruction will be necessary in cases where a defendant relies on a cannabis-related prescription defense.

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 2007 [969 So.2d 245], ⅜⅛2014 [153 So.3d 192], and 2016.

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.

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 § 893.135(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.).

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

Definitions. Give as applicable.

Cannabis. § 893.02(3), Fla. Stat.

See Comment section for medical marijuana.

“Cannabis” means all parts of any plant of the genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

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(135)(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-extr-action-from-substancesof natural — origin,—or—independently—by means-of — chemical—synthesis,—It.can also be by a combination of extraction and-chemical — synthesis, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling, or relabeling of its container.

Give if applicable.

The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a .controlled substance in the course of his or. her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver., § 893.02(56), 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.

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

Actual possession.

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

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

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

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

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the substance is in a place oyer which the person has control, and the person has the ability to control the substance.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to 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 substance that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the. substance was within [his] [her] presence and (2) exercised control or ownership over the substance itself.

Joint possession.

Give if applicable. § 893.02(19), Fla, Stat.

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Give if-applicable. — See.McMillon-v>■ State, 813 SoSd-56l(Fla.20Q2)l-

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.2d 251 (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 power and intention 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 power and intention 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 power and intention 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.

Affirmative defense: Lack■ of knowledge of illicit nature. Give if applicablethere is evidence that the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. 893.101(2) and.(3), Fla. Stat.

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

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

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,

If you are convinced beyond á 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 [him] [her] not guilty of Trafficking,in Cannabis.

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

If you find the defendant guilty of Trafficking in Cannabis, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See § 893.135(l)(a)1.23., Fla. Stat. to verify the iveights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The cannabis weighed more than 25 pounds but less than 2,000 pounds.] [constituted 300 or more cannabis plants but not more than 2,000 cannabis plants.]]

b. [The cannabis [weighed 2,000 pounds or more but less than 10,-000 pounds.] [constituted 2,000 or more cannabis plants but not more than 10,000 cannabis plants.]]

c. [The cannabis [weighed 10,000 pounds or more.] [constituted 10,-000 or more cannabis plants.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each, of .these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.

Comments

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. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1987 [509 So.2d 917], 1989 [543 So.2d 1205], 1997 [697 So.2d 84], 2007 [969 So.2d 245], 2013 [112 So.3d 1211], and 2014 [153 So.3d 192], and 2016.

25.10 TRAFFICKING IN COCAINE

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

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

2. The substance was [cocaine] [a mixture containing cocaine].

3. The [cocaine] [mixture containing cocaine] weighed 28 grams or more.

If applicable under the facts of the case and pursuant to § 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should he given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, 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.).

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cocaine or a mixture containing cocaine.

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(135)(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, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container.

Give if applicable:

The term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled 'Substance by:

1. A practitioner or pharmacist as an incident to his or her administering or delivering of a controlled substance in the course of his or her professional practice.

2. A practitioner, or by his or her authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

Deliver. §• 898.02(56); 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.

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

Actual possession:

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

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

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

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

Constructive possession.-''

.Give if applicable,

Mere proximity to a substance is not sufficient to establish the power and intention to control oyer-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 substance that was in a place [he} [she] did not control, the State must prove (defendant) (1) knew that the substance was within [his] [her] presence arid (2) exercised control or ownership over the substance itself.

Joint possession.

Give if applicable.. § 893.02(19), Fla. Stat

“Possession” includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.

Inferences.

Give if applicable. See McMillon v. Stater, 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.2d 251 (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 power and intention 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-power and intention to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So.2d 658 (Fla. 4th DCA 2008).

However, you may infer that (defendant) kriew of the presence of the substance and had the ability power and intention 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.

Affirmative defense: Lack of knowledge of illicit nature. Give if applicablethere is evidence that >the defendant 1) did not know of the presence of the substance or 2) knew of the presence of the substance, but did not know of its illicit nature. §. 898.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Cocaine. (Defendant) has raised this defense.

You are permitted to presume-infer 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 substan