In re Standard Jury Instructions in Criminal Cases-Report 2018-12 (272 So. 3d 243, 2019)

Citations

272 So. 3d 243

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.

On November 8, 2018, the Committee filed a report proposing amendments to the following existing instructions: 3.6(m) (Affirmative Defense: Temporary Possession of Controlled Substance for Legal Disposal); 3.6(n) (Affirmative Defense: Controlled Substance Was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription); 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); 25.8 (Obtaining a Controlled Substance by Fraud, etc.); 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); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program] ); 25.19 (Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances); 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 also proposes deleting instructions 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)), and 25.13(e) (Trafficking in LSD). In addition, a new instruction, 25.7(a) (Trafficking in (Name of Controlled Substance)), is proposed. The proposals were published in The Florida Bar News ; the Committee did not receive any comments.

We authorize the proposed amendments to the instructions for publication and use as proposed with certain modifications, and discuss the more significant amendments to the instructions.

First, to the extent that the instructions address the concept of "possession," they include the new format as previously authorized by the Court. See, e.g. , In re Std. Jury Instrs. in Criminal Cases-Report 2018-10 , 259 So.3d 765, 766 (Fla. 2018) ; In re Std. Jury Instrs. in Criminal Cases-Report 2018-08 , 259 So.3d 754, 756 (Fla. 2018) ; In re Std. Jury Instrs. in Criminal Cases-Report 2017-03 , 238 So.3d 182 (Fla. 2018).

Next, the instructions that include the affirmative defense inference pertaining to lack of knowledge of the illicit nature of a controlled substance, see sections 893.101(2) and 893.101(3), Florida Statutes (2018), are revised consistent with the language previously authorized in instruction 25.7 (Possession of a Controlled Substance). See In re Std. Jury Instrs. in Criminal Cases-Report 2017-03 , 238 So.3d at 191.

On the Court's own motion, we amend the table of lesser-included offenses for instructions 25.17, 25.18, and 25.21 to reflect that possession of a controlled substance is not necessarily a category one lesser-included offense of contraband in either a county detention facility, a juvenile detention facility or commitment program, or a state correctional institution, respectively.

Lastly, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e), which individually pertain to trafficking of a specifically named controlled substance, are hereby deleted. In their place, new instruction 25.7(a) is authorized, which provides for the insertion of the name of the particular drug charged.

Having considered the Committee's report, we authorize the new and amended instructions as set forth in the appendix to this opinion for publication and use. In addition, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e) are deleted. New language is indicated by underlining, and deleted language is indicated by struck-through type. We 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. 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. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

APPENDIX

3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF A CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

1. (Defendant) possessed the controlled substance.

2. (Defendant) acquired the controlled substance without unlawful intent.

3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.

4. The temporary possession was solely for the purpose of legal disposal.

Definitions.

"Legal disposal" means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

To "possess a substance" means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

This defense does not apply if (defendant)disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

There is no statute for the defense of "legal disposal" and , as of October 2018, the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] not guilty.

Comment s See Ramsubhag v. State, 937 So.2d 1192 (Fla. 4th DCA 2006) andStanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999) for discussion on this topic.

This instruction was adopted in 2013 [141 So.3d 132] and amended in 2019.

3.6(n) AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE WAS LAWFULLY OBTAINED FROM A PRACTITIONER OR PURSUANT TO A VALID PRESCRIPTION

§§ 499.03(1), 893.13(6)(a) Fla. Stats.

It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he] [she] lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.

Like all affirmative defenses and pursuant to § 893.10(1), Fla. Stat., the burden of going forward with evidence of the "controlled substance was lawfully obtained" defense is upon the defendant. Fla. Stats. 893.10(1), 893.13(6)(a), and 499.03(1) are silent, however, as to the burden of persuasion for the affirmative defense. There is no case law, as of October 2018, as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

For example, if the burden to prove the affirmative defense is on the defendant under the preponderance of the evidence standard.

If you find the defendant proved by a preponderance of the evidence that [he] [she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] not guilty of [possession of a controlled substance] [trafficking via possession]. If the defendant did not prove by a preponderance of the evidence that [he] [she]

lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable doubt standard.

If you find that the State proved beyond a reasonable doubt that the defendant did not lawfully obtain the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt as to whether the defendant lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] not guilty of [possession of a controlled substance] [trafficking via possession].

Definitions.

To "possess a substance" means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

§ 893.02(

23 ), Fla. Stat.

"Practitioner" means a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, an advanced registered nurse practitioner certified under chapter 464, a naturopath licensed pursuant to chapter 462, a certified optometrist licensed under chapter 463, a psychiatric nurse who has an advanced registered nurse practitioner certified under § 464.012, Fla. Stat., and who has a master's or doctoral degree in psychiatric nursing, holds a national advanced practice certification as a psychiatric mental health advanced practice nurse, and has 2 years of post-master's clinical experience under the supervision of a physician,

a podiatric physician licensed pursuant to chapter 461, or a physician assistant licensed under chapter 458 or chapter 459, provided such practitioner holds a valid federal controlled substance registry number.

§ 893.02(

24 ), Fla. Stat.

"Prescription" means and includes an order for drugs or medicinal supplies written, signed, or transmitted by word of mouth, telephone, telegram, or other means of communication by a duly licensed practitioner licensed by the laws of the state to prescribe such drugs or medicinal supplies, issued in good faith and in the course of professional practice, intended to be filled, compounded, or dispensed by another person licensed by the laws of the state to do so. The term also includes an order for drugs or medicinal supplies so transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida if the pharmacist called upon to fill the order determines, in the exercise of his or her professional judgment, that the order was issued pursuant to a valid patient-physician relationship, that it is authentic, and that the drugs or medicinal supplies ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness.

"Prescription" includes any order for drugs or medicinal supplies which is written or transmitted by any means of communication by a licensed practitioner authorized by the laws of this state to prescribe such drugs or medicinal supplies, is issued in good faith and in the course of professional practice, is intended to be dispensed by a person authorized by the laws of this state to do so, and meets the requirements of § 893.04, Fla. Stat. (If there is a dispute about whether the requirements were met, the judge should insert those requirements or the requirement(s) in dispute.)

[The term also includes an order for drugs or medicinal supplies transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida, but only if the pharmacist called upon to fill such an order determines, in the exercise of his or her professional judgment, that the order was issued pursuant to a valid patient-physician relationship, that it is authentic, and that the drugs or medicinal supplies ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness.]

Comment s

A special instruction is necessary where there is evidence that the defendant acted as an agent for the person who had a prescription.See McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010).

It is undecided whether a defendant may rely on the prescription defense when he or she is charged with Possession With Intent.See Celeste v. State, 79 So.3d 898 (Fla. 5th DCA 2012);Ayotte v. State, 67 So.3d 330 (Fla. 1st DCA 2011); andWagner v. State, 88 So.3d 250 (Fla. 4th DCA 2012).

See Knipp v. State, 67 So.3d 376 (Fla. 4th DCA 2011) regarding the availability of the prescription defense for a person who obtained the prescription in violation of the doctor shopping statute.

This instruction was adopted in 2013 [141 So.3d 132] and amended in 2019.

25.2 SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER A CONTROLLED SUBSTANCE

§ 893.13(1)(a), Fla. Stat.;

and

§ 893.13 (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. 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.

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. 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 ; and 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(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 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. § 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 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 power and intention to control it.

(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, 986 So.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.

To prove (defendant) "possessed a substance," the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a 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 a defense to (crime charged).

You

are permitted

may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she]

knew of the presence of

possessed 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

may but are not required 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 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

SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION WITH INTENT- 893.13(1)(a) and (2)(a) CATEGORY CATEGORY TWO FLA. STAT. INS. ONE NO. *Possession 893.13(6) 25.7 of a Controlled Substance, if Possession With Intent is charged *Delivery of 893.13(3) 25.2 20 Grams or Less of Cannabis, if Delivery of More than 20 Grams of Cannabis is charged Attempt, except when delivery is charged 777.04(1) 5.1

Comments

*The crime of Possession of a Controlled Substance is not a necessarily lesser-included crime of Manufacture of a Controlled Substance. Anderson v. State, 447 So.2d 236 (Fla. 1st DCA 1983). Also, Possession of a Controlled Substance is not a necessary lesser-included offense of Sale of a Controlled Substance. State v. McCloud, 577 So.2d 939 (Fla. 1991). It is unclear if the courts will determine that a person charged with Purchase or Delivery of a Controlled Substance is necessarily charged with Possession of a Controlled Substance.

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.

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.

Starting in 2014, the

L egislature passed laws pertaining to "medical cannabis" or "low-THC cannabis," which is excluded from the definition of "cannabis" in § 893.02(3), Fla. Stat.; is defined in § 381.986(1), 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], 1997 [697 So.2d 84], 2007 [969 So.2d 245], 2014 [153 So.3d 192], 2016 [191 So.3d 291],

and

2017 [216 So.3d 497], and 2019.

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

§ 893.13(1)(b),Fla. Stat.; § 893.13 (2)(b),Fla. Stat.; and § 893.13 (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

three

four elements beyond a reasonable doubt:

1. (Defendant) [sold] [purchased] [delivered] [or] [possessed] a certain substance that weighed more than 10 grams[a certain substance] [a mixture] [a combination of substances].

2. The [substance] [mixture] [combination of substances] wascontained (specific substance alleged).

3. The [substance] [mixture] [combination of substances] weighed more than 10 grams.

34. (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(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.

Mixture. § 893.02(16), Fla. Stat.

"Mixture" means any physical combination of two or more substances, including, but not limited to, a blend, an aggregation, a suspension, an emulsion, a solution, or a dosage unit, whether or not such combination can be separated into its components by physical means, whether mechanical or thermal.

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.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control 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.

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 power and intention to control it.

(defendant)

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

However, you may infer that

(defendant)

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a 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 a defense to (crime charged).You

are permitted

may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she]

knew of the presence of

possessed 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

may but are not required 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

SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF 10 GRAMS - 893.13(1)(b), (2)(b), and (6)(c) CATEGORY ONE CATEGORY TWO FLA. INS. STAT. NO.

Sale, purchase, or delivery 893.13(1)(a) 25.2 of controlled substance if and (2)(a) sale, purchase, or delivery is charged *Possession of a controlled 893.13(6) 25.7 substance, if possession is charged Attempt, except when 777.04(1) 5.1 delivery is charged

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is necessarily included in a charge of Purchase or Delivery of a Controlled Substance. Possession is not a necessary lesser-included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud, 577 So.2d 939 (Fla. 1991); Anderson v. State, 447 So.2d 236 (Fla. 1st DCA 1983).

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], 2014 [153 So.3d 192], 2016 [191 So.3d 291],

and

2017 [216 So.3d 497], and 2019.

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

[

four elements beyond a reasonable doubt:

Give 1a, 1b, and/or 1c 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 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(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.

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 a defense to (crime charged).You

are permitted

may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she]

knew of the presence of

possessed the controlled

substance and exercised control or ownership over the substance.

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a 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

DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF A MINOR - 893.13(4) CATEGORY ONE CATEGORY TWO FLA. INS. STAT. NO. *Delivery of a Controlled 893.13(1)(a) 25.2 Substance

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is a necessarily lesser-included offense of a charge involving Delivery of a Controlled Substance. Possession is not a necessary lesser-included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud, 577 So.2d 939 (Fla. 1991); Anderson v. State, 447 So.2d 236 (Fla. 1st DCA 1983).

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], 2014 [153 So.3d 192], 2016 [191 So.3d 291],

and

2017 [216 So.3d 497], and 2019.

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 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 applicable. § 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. You

are permitted

may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she]

knew of the presence of

possessed the controlled substance

and exercised control or ownership over the substance

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a 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 Substance Into the State.

Lesser Included Offenses

BRINGING A CONTROLLED SUBSTANCE INTO THE STATE - 893.13(5) CATEGORY ONE CATEGORY TWO FLA. INS. STAT. NO. *None Attempt 777.04(1) 5.1

Comments

*It is unclear if the courts will determine that Possession of a Controlled Substance is necessarily included in a charge of Bringing a Controlled Substance into the State. Possession is not a necessary lesser-included offense of either Sale or Manufacture of a Controlled Substance. State v. McCloud, 577 So.2d 939 (Fla. 1991); Anderson v. State, 447 So.2d 236 (Fla. 1st DCA 1983).

Starting in 2014, the

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84], 2007 [969 So.2d 245], 2014 [153 So.3d 192], 2016 [191 So.3d 291],

and

2017 [216 So.3d 497], and 2019.

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

§ 893.13(1)(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 four 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(1)(c)-(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.

Manufacture. § 893.02(15)(a), Fla. Stat.

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.

Give if applicable.

Mere proximity to a substance is not sufficient to establish the power and intention to control 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.

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 power and intention to control it.

(defendant)

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

However, you may infer that

(defendant)

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

Child care facility. § 402.302, 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. § 421.03(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(1)(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), 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 applicable. § 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is a defense to (crime charged).You

are permitted

may but are not required to infer that (defendant)was aware of the illicit nature of the controlled substance if you find that [he] [she]

knew of the presence of

possessed 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

may but are not required 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

SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS - 893.13(1)(c)-(f) and (h) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. *Sale, Manufacture, or 893.13(1)(a) 25.2 Delivery of a controlled substance, if Sale, Manufacture, or Delivery is charged *Possession of a 893.13(6) 25.7 Controlled Substance, if Possession with Intent to Sell, Manufacture, or Deliver is charged

Comments

Starting in 2014, the

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], 2014 [153 So.3d 192], 2016 [191 So.3d 291],

and

2017 [216 So.3d 497], and 2019.

25.7(a) TRAFFICKING IN (NAME OF CONTROLLED SUBSTANCE) § 893.135(1), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Name of controlled substance) is a controlled substance.

To prove the crime of Trafficking in (name of controlled substance), the State must prove the following three elements beyond a reasonable doubt:

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

2. The substance was [(name of controlled substance)] [a mixture containing (name of controlled substance)].

3. The [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight alleged)].

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 cocaine, instructions on elements 1 and 2 below would be given.

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

2. The defendant actually [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] (a controlled substance enumerated in § 893.135(1), Fla. Stat.).

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(15)(a), Fla. Stat.

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.

Mixture. § 893.02(16), Fla. Stat.

Possession.

To prove (defendant) knowingly possessed a substance, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a 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 a defense to Trafficking in (name of controlled substance). You may but are not required to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] possessed the controlled substance.

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

You may but are not required 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 elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in (name of 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 [him] [her] not guilty of Trafficking in (name of controlled substance).

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

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

§ 893.135(1) Fla. Stat. contains differing weights and associated penalties for various controlled substances. Give if applicable, as determined by the date of the offense, up to the weight charged.

a. the [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight)] but less than [(insert weight)].

b. the [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight)] but less than [(insert weight)].

c. the [(name of controlled substance)] [mixture containing (name of controlled substance)] weighed [(insert weight)] but less than [(insert weight)].

Lesser Included Offenses

Trafficking can be committed by possession, sale, purchase, manufacture, delivery, or by bringing into this state a certain amount of drugs. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to se