Citations
- 216 So. 3d 497
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.
The Committee proposed amending the following 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] [ (Specific Substance Alleged) ]); 25.11(a) (Trafficking in Hydrocodone); 25.11(b) (Trafficking in Oxycodone); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in Methaqualone); 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)); 25.13(e) (Trafficking in LSD); 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] [Removal] of Contraband [Into] [From] a State Correctional Institution). 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, and authorize them for publication and use.
We note the following significant changes to the jury instructions as amended. First, regarding Instructions 25.2, 25.3, 25.4, 25.5, 25.6, 25.7, 25.8, 25.17, 25.18, 25.20, and 25.21, the italicized note above the “Affirmative defense—Lack of knowledge of illicit nature” section is simplified by replacing “Give if 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” with “Give if applicable.”
Next, in Instructions 25.2, 25.3, 25.4, 25.5, 25.6, 25.7, 25.8, 25.17, 25.18, 25.20, and 25.21, the sentence “(Defendant) has raised this defense” is removed from the “Affirmative defense—Lack of knowledge of illicit nature” instruction itself.
Last, in Instructions 25.2 and 25.7, the statutory references to sections 893.03(l)(c)(46)-50, 114-142, 151-159, and 166-173, Florida Statutes, are removed from the Comments section of Instruction 25.2 and the fourth element of the crime and Lesser Included Offenses table of Instruction 25.7. These amendments track recent statutory changes, by which the Legislature removed references to synthetic cannabis from section 893.13(6)(b), Florida Statutes (2016). See Ch. 2016-105, § 5, Laws of Fla. Additionally, in Instructions 25.2, 25.5, 25.6, 25.7, 25.8, and 25.9, the phrase “medical marijuana” is replaced with “medical cannabis” and the statutory reference for the definitions of “medical cannabis” and “low-THC cannabis” in the Comments section of the instructions is updated. These changes are consistent with recent legislative changes. See Ch. 2016-123, Laws of Fla.
The 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 become effective when this opinion becomes final.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.
APPENDIX
25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE
§ 893.13(1 )(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 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).
3. (Defendant) had knowledge of the presence of the substance.
Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See § 893.13(3), Fla. Slat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must malee a finding as to the weight. Give if applicable.
If you find that (defendant) is guilty of Delivery of Cannabis, you must then determine if the State proved beyond a reasonable doubt that the 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(15)(a), Fla, Stat.
“Manufacture” means the production, preparation, 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(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 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 that substance w'hen 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 aw are 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.
Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. IstDCA 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 aw are of the presence of the substance and had the 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 power and intention to control it, in the absence of other incriminating evidence.
Give if applicable. See Duncan v. State, 986So. 2d 653 (Fla. 4th DCA 2008).
However, you may infer that (defendant) knew of the presence of the substance and had the 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 ofImowledge of illicit nature. Give if applicable. there is evidence that the dcfendant-dj-did-notlmowofthepreseiweof the-substance or 2)-lmew of t1