# Supreme Court of Florida

____________

No. SC18

- 1295

____________

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

— REPORT 2018

- 06.

December 20, 2018

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 a uthorize the amended standard instructions for

publication and use . We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to four existing standard criminal jury

instructions: 15.1 (Robbery); 15.2 (Carjacking); 15.3 (Home

- Invasion Robbery);

and 26.9 (Money Laundering). The proposals were published by the C ommittee in

The Florida Bar News ; one comment was received from the Florida Public

Defender Association (F PD A) concerning the proposed amendments to

instructions 15.1, 15.2, and 15.3. The Committee made one of the changes

proposed by the F PD A prior to fil ing its report with the Court, but declined to- 2

- make the other proposed change. The proposals were not published by the Court

after having been filed by the Committee.

Having considered the Committee’ s report and the F PD A comment, we

amend the standard ju ry instructions as proposed by the Committee , with one

technical correction to a comment, and authorize them for publication and use. We

discuss the more significant amendments below.

First, non substantive revisions are made to several of the elements in

i nstructions 15.1, 15.2, and 15.3 to improve readability or better track statutory

language for the offenses covered by those instructions. Additionally, instructions

15.1, 15.2, and 15.3 are amended to replace “the” befor e “victim” with “that” or

“a” to replace “victim” with the alleged victim’s name throughout the instruction s

to avoid the trial court ’s accidentally referring to the alleged victim as a “victim.”

Statutory citations are also added above various definitions and paragraphs

throughout thes e three instructions. Further , a bracketed sentence is added to the

“Force” section of these instructions reading: “The law does not require the force,

violence, assault, or putting in fear to be exerted against the victim from whom the

property was taken if the force, violence, assault, or putting in fear was exerted

against another in the course of the taking.” A citation to Thomas v. State , 36 So.

3d 853 (Fla. 3d DCA 2010), is added above that paragraph in each of those three

instructions.- 3

- I nstructions 15.1, 15.2, and 15.3 are also amended to add a definition of

“great bodily harm” stating that “ ‘Great bodily harm’ means great as distinguished

from slight, trivial, minor, or moderate harm, and as such does not include mere

bruises.” A citat ion to Wheeler v. State , 203 So. 3d 1007 (Fla. 4th DCA 2016), is

added above that definition in each of those instructions. N ew paragraphs are

added to the c omments section of instructions 15.1, 15.2, and 15.3, an d an existing

paragraph in the c omments se ction of each of those instructions is revised.

However, 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 the ir correctness or applicability.

Next, the crime of resisting a merchant is added as a category

- two lesser

included offense for carjacking in instruction 15.2

.

With regard to instruction 26.9, several of the elements of the crime money

laundering are revised to better track statutory language governing that offense.

Additionally, a last element is added reading: “The money or property involved in

the financial transaction exceeded $300 in any 12

- month period.” This amendment

is made to address language found in section 896.101(5), Florida Statutes (2018)

.

Further, a paragraph is added t o the instruction providing : “A[n] (name of the

specified unlawful activit y in § 895.02(8)(a)(1.

- 50. alleged) consists of (give

elements of the specified unlawful activity alleged). (If applicable, also explain- 4

- attempt, conspiracy, solicitation, coercion, and/or intimidation to commit the

specified unlawful activity.) ”

Next, t he phrase “virtual currency” is added to the definition of “monetary

instruments” in instruction 26.9 to track recent statutory amendments, see ch

.

2017

- 155, §12, at 5, Laws of Fla. , and a definition of “virtual currency” based on

section 896.101(2)(j), Fl orida Statutes (2018) , is added to the instruction. A lesser

included offense table is added to the instruction and contains second

- and third

degree money laundering as category

- one lesser

- included offenses for first

- degree

money laundering. Last, a par agraph is added to the instruction directing the jury,

if it found the defendant guilty of money laundering, to determine whether the

transaction involved more than $300 but less than $20,000, $20,000 or more but

less than $100,000, or $100,000 or more dur ing any 12

- month period , to determine

the felony degree of the offense

.

The amended criminal jury instructions, as set forth in the appendix to this

opinion, are hereby authorized for publication and use. 1 New language is indicated

1

. The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to

instructio ns authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the

instruction.- 5

- by underlining, and de leted 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. The instructions as set forth in the appendix shall

become effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLS TON, LABARGA, and LAWSON, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION

FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERI OD EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,

DETERMINED.

Original Proceedings

– Supreme Court Committee on Standard Jury Instructions in

Criminal Cases

Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury

Instructio ns in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida,

for Petitioner6 APPENDIX

15.1 ROBBERY § 812.13, Fla. Stat.

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

1. (Defendant) took [ the ] [a] [an] (money or property described in charge) from the person or custody of (person alleged)

.

2. Force, violence, assault, or p utting in fear was used in the course of the taking.

3. The property taken was of some value.

4. The taking was with the intent to permanently or temporarily [deprive (victim) of [his] [her] right to the property or any benefit from it] [appropriate the proper ty of (victim) to [his] [her] own use or to the use of any person not entitled to it].

Definitions. Assault. § 784.011

, Fla. Stat. Give if applicable.

An “assault” is an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in the mind of the

that victim a well

- founded fear that violence is about to take place.

Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5 th th DCA 1997). If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.13(3)(b), Fla. Stat. “In the course of the taking” means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or

events.7 Afterthought. Give only if applicable. DeJesus v. State, 98 So. 3d 105 (Fla. 2d DCA 2012). If you find that the taking of property occurred as an afterthought to

the use of force or violence [ or the threat of force or violence] against the

victim (victim) , the taking does not constitute r R obbery

, but may still

constitute t T heft.

Title to property. Give if applicable. In order for a taking of property to be r R obbery, it is not necessary that the person robbed be the actual owner of the property. It is sufficient if the

victim person has the custody of the property at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So. 3d 853 (Fla. 3d DCA 2010). The taking must be by the use of force or violence or by assault so as to
overcome the resistance of the victim a person , or by putting the victim a

person in fear so that the victim he or she does not resist. [The law does not require the force, violence, assault, or putting in fear to be exerted against the victim from whom the property was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking .] The law does not require that the a victim of r R obbery resist to any particular

extent or that the a victim offer any actual physical resistance if the

circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there mus t be some resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.

It is also r R obbery if a person, with intent to take the property from a victim, administers any substance to another so that the victim so that [he] [she] becomes unconscious and then takes the property from the person or custody of the that victim

.

Taking. Give if applicable. In order for a taking by force, violence, or putting in fear to be

r R obbery, it is not necessary that the taking be from the person of the a victim. It is sufficient if the property taken is under the actual control custody of the a victim so that it cannot be taken without the use of force, violence, or intimidation directed against the a victim.

Enhanced penalty. Give only if applicable. § 812.13(3)(a), Fla. Stat.8 If you find the defendant guilty of the crime of r R obbery, you must further determine beyond a reasonable doubt if “in the course of committing the robbery” the defendant carried some k ind of weapon. An act is “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

With a firearm. § 812.13(2)(a), Fla. Stat. If you find that the defendant carried a firearm in the course of committing the r R obbery, you should find [him] [her] guilty of r R obbery with

a firearm.

A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is ( insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.) ]

With a deadly weapon. § 812.13(2)(a), Fla. Stat. If you find that the defendant carried a (deadly weapon described in charge) in the course of committing the r R obbery and that the (deadly weapon described in charg e) was a deadly weapon, you should find [him] [her] guilty of

r R obbery with a deadly weapon.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So. 3d 1007 (Fl a. 4th DCA 2016). “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

With other weapon. § 812.13(2)(b), Fla. Stat. If you find that the defendant carried a weapon that was not a firearm or a deadly weapon in the course of committing the r R obbery, you should find [him] [her] guilty of r R obbery with a weapon.

A “weapon” is defined to mean any object that could be used t o cause death or inflict serious bodily harm.9 With no firearm or weapon. § 812.13(2)(c), Fla. Stat. If you find that the defendant carried no firearm or weapon in the course of committing the r R obbery, but did commit the r R obbery, you should find [him] [h er] guilty only of r R obbery.

If applicable, see Instruction 5.1 for “attempt”.10 Lesser Included Offenses

* R OBBERY WITH A FIREARM OR DEADLY WEAPON

— 812.13(2)(a)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery with a

weapon 812.13(2)(b) 15.1

Robbery 812.13(2)(c) 15.1

Petit theft

– second degree 812.014(3)(a) 14.1

Assault (if assault was charged) 784.011 8.1

Grand theft

– first degree 812.014(2)(a) 14.1

Display of firearm 790.07(4) 10.4 Aggravated Battery 784.045 8.4

Grand theft

– second degree 812.014(2)( b) 14.1

Robbery by sudden snatching with a firearm or deadly

weapon 812.131(2)(a) 15.4

Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Robbery by Sudden Snatching 812.131(2)(b) 15.4

Grand theft

– third degree 812.014(2)(c) 14.1

Grand theft

– third degree 812.014(2)(d) 14.1

Display of firearm 790.07(1) 10.3 Felony Petit Theft 812.014(3)(c) 14.1

Petit theft

– first degree 812.014(2)(e) 14.1

Petit theft

– first degree 812.014(3)(b) 14.1

Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.411 * R OBBERY WITH A WEAPON

— 812.13(2)(b)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery 812.13(2)(c) 15.1

Petit theft

– second degree 812.014(3)(a) 14.1

Assault (if assault was charged) 784.011 8.1

Grand theft

– first degree 812.014(2)(a) 14.1

Display of a weapon 790.07(4) 10.4 Attempt 777.04(1) 5.1 Aggravated Battery 784.045 8.4

Grand theft

– second degree 812.014(2)(b) 14.1

Robbery by sudden snatching with a firearm or deadly

weapon 812.131(2)(a) 15.4

Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony battery 784.041 8.5 Robbery by sudden snatching 812.131(2)(b) 15.4

Grand theft

– third degree 812.014(2)(c) 14.1

Grand theft

– third degree 812.014(2)(d) 14.1

Display of firearm 790.07(1) 10.3 Felony petit theft 812.014(3)(c) 14.1

Petit theft

– first degree 812.014(2)(e) 14.1

Petit theft

– first degree 812.014(3)(b) 14.1

Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.412 ROBBERY

— 812.13(2)(c)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Petit theft

– second degree 812.014(3)(a) 14.1

Assault (if assault was charged) 784.011 8.1

Grand theft

– second degree 812.014(2)(b) 14.1

Robbery By Sudden Snatching with a firearm or deadly

weapon 812.131(2)(a) 15.4

Display of firearm 790.07(2) 10.3 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Robbery by sudden snatching 812.131(2)(b) 15.4

Grand theft

– third degree 812.014(2)(c) 14.1

Grand theft

– third degree 812.014(2)(d) 14.1

Display of firearm 790.07(1) 10.3 Felony petit theft 812.014(3)(c) 14.1

Petit theft

– first degree 812.014(2)(e) 14.1

Petit theft

– first degree 812.014(3)(b) 14.1

Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4

Comments

If applicable, see Instruction 5.1 for “attempt.”

*The felony degree of a Robbery gets bumped up if a defendant carried a firearm or a deadly weapon or a weapon . In Sanders v. State , 944 So. 2d 203, 207 n.3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a firearm or a deadly weapon13 or a weapon made in a separate interrogatory rather than as part of less er

- included

offenses.

For the crime of r R obbery, according the First and Fifth DCAs, upon request, the judge must instruct that the a jury can convict a defendant of two

lesser

- included offenses s uch as 1) theft and assault or 2) theft and resisting a

merchant in appropriate cases

. See Spencer v. State , 71 So. 3d 901 (Fla. 1 st st DCA 2011)

, and Stuckey v. State , 972 So. 2d 918 (Fla. 5 th th DCA 2007). See also Gian

Grasso v

. State , 899 So. 2d 392 (Fla. 4th DCA 2005)( holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense). However, according to the Third DCA, the jury should be given the option of finding multiple lesser

- included offenses only if there is

evidence that the force, violence, assault or putting in fear was not used in the course of the taking. Gordon v. State , 219 So. 3d 189 (Fla. 3rd DCA 2017).

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1989 [543 So.2d 1205] , 1995 [665 So. 2d 212], 2008 [982 So. 2d 1160], and 2013 [122 So. 3d 263], and 201 8

.

15.2 CARJACKING § 812.133, Fla. Stat.

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

1. (Defendant) took the a motor vehicle from the person or custody of ( victim person alleged )

.

2. Force, violence, assault, or putting in fear was used in the course of the taking.

3. The taking was with the intent to temporarily or permanently [deprive (victim) of [his] [her] right to the motor vehicle or any benefit from it] [appropriate the motor vehicle of (victim) to [his] [her] own use or to the use of any person not entitled to it]

.

Definitions. Medrano v. State, 199 So. 3d 413 (Fla. 4th DCA 2016). § 32 0.01, Fla. Stat.14 “Motor vehicle” means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propell ed by power other than muscular power, but the term does not include traction engin es, road rollers, personal delivery devices, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds.

Assault. § 784.011 Fla. Stat. Give if applicable.

An “assault” is defined as an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in the min d of

the that victim a well

- founded fear that violence is about to take place.

Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5 th th DCA 1997). If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.133(3)(b) , Fla. Stat. “In the course of the taking” means that the act occurred before, during, or after the taking of the motor vehicle and that the act and the taking

of the motor vehicle constitute a continuous series of acts or events.

Afterthought. Give onl y if applicable. DeJesus v. State, 98 So. 3d 105 (Fla. 2d DCA 2012). If you find that the taking of the motor vehicle occurred as an afterthought to the use of force or violence [ or the threat of force or violence] against (victim) , the taking does not constitute robbery Carjacking, but may

still constitute g G rand t T heft m M otor v V ehicle.

Title to motor vehicle. Give if applicable. In order for a taking of the motor vehicle to be c C arjacking, it is not necessary that the victim person carjacked be the actual owner of the motor

vehicle. It is sufficient if the victim person has the custody of the motor vehicle

at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So. 3d 853 (Fla. 3d DC A 2010).15 The taking must be by the use of force or violence or by assault so as to

overcome the resistance of the victim a person , or by putting the victim a

person in fear so that the victim he or she does not resist. [The law does not require the force, vi olence, assault, or putting in fear to be exerted against the victim from whom the motor vehicle was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking .] The law does not require that the a victi m of c C arjacking resist to any particular

extent or that the a victim offer any actual physical resistance if the

circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.

It is also c C arj acking if a person, with intent to take the motor vehicle from a victim, administers any substance to the that victim so that [he] [she] becomes unconscious and then takes the motor vehicle from the person or custody of the that victim.

Taking. Give if app licable. In order for a taking by force, violence, or putting in fear to be Carjacking, it is not necessary that the taking be from the person of a victim. It is sufficient if the motor vehicle taken is under the custody of a victim so

that it cannot be taken without the use of force, violence, or intimidation directed against a victim.

Enhanced penalty. Give only if applicable. §§ 812.133(2 )(a) and 812.133(3)(a) Fla. Stats. If you find the defendant guilty of the crime of c C arjack ing, you must further determine beyond a reasonable doubt if “in the course of committing

the c C arjacking” the defendant carried some kind of a firearm or other deadly weapon. An act is “in the course of committing the c C arjacking” if it occurs in
an attemp t to commit c C arjacking or in flight after the attempt or

commission.

With a firearm or deadly weapon. § 812.133(2)(a), Fla. Stat. If you find that the defendant carried a firearm or other deadly weapon in the course of committing the c C arjacking, you should find [him] [her] guilty of c C arjacking with a firearm or deadly weapon.

A “firearm” means any weapon [including a starter gun] which will, is16 designed to, or may readily be converted to expel a projectile by the action of an explosiv e; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique

firearm is used in the commission of a crime. An antique firearm is ( insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.) ]

A “weapon” is defined to mean any object that could be used to cause death or inflict serious bodily harm.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016). “Great bodily harm” means great as distinguished from slight, trivial,

minor , or moderate harm, and as such does not include mere bruises.

With no firearm or weapon. § 812.133(2)(b) Fla. Stat. If you find that the defendant carried no firearm or deadly weapon in the course of committing the c C arjacking, but did commit the c C arjacking, you should find [him] [her] guilty only of c C arjacking.

The only enhancement under the statute is for carrying a firearm or other deadly weapon, not for carrying a nondeadly weapon as in the robbery statute.

If applicable, see Instruction 5. 1 for “attempt.”17 Lesser Included Offenses

* CARJACKING

— 812.133

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Robbery 812.13(2)(c) 15.1

Grand theft

– motor
vehicle 812.014(2)(c)6 14.1

Assault (if assault was charged) 784.011 8.2

Aggravated Battery 784.045 8.4 Attempted Carjacking 777.04(1) 5.1 Aggravated Assault 784.021 8.2 Felony Battery 784.041 8.5 Battery 784.03 8.3 Resisting a Merchant 812.015(6) 14.4

Comments

* The only increased penalty under the Carjacking statute is for carrying a firearm or other deadly weapon, not for carrying a weapon as in the Robbery

statute. In Sanders v. State , 944 So. 2d 203, 207 n. 3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a firearm or a deadly weapon made in a separate interrogatory rather than as part of lesser

- included offenses.

If applicable, see Instruction 5.1 for “attempt.”

For the crime of c C arjacking

, it is likely that a the First, Fourth, and Fifth DCAs would hold that the judge must, upon request, instruct that the jury can

convict a defendant of two lesser

- included offenses such as grand theft auto and

assault

. See Spencer v. State , 71 So. 3d 901 (Fla. 1 st st DCA 2011) ; Stuckey v. State

, 972 So. 2d 918 (Fla. 5th DCA 2007) ; Gian

- Grasso v

. State , 899 So. 2d 392 (Fla. 4th DCA 2005) ( holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense).
However, according to the Third DCA, the jury should be given the option of finding multiple lesser

- included offenses only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking

. Gordon

v. State , 219 So. 3d 189 (Fla. 3rd DCA 2017).18 This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008 [982 So. 2d 1160], and 2013 [122 So. 3d 263], and 201 8

.

15.3 HOME

- INVASION ROBBERY § 812.135, Fla. Stat.

To prove the crime of Home

- Invasion Robbery, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) entered the dwelling of (victim)

.

2. At the time (defendant) entered the dwelling, [he] [she] intended to commit robbery.

3. While inside the dwelling, (defendant) did commit robbery.

A robbery consists of the following:

1. (Defendant) took money or property [the] [a] [an] (money or

property described in charge) from the person or custody of

another (person alleged)

.

2. Force, violence, assault, or putting in fear was used in the course of the taking.

3. The property taken was of some value.

4. The taking was with the intent to permanently or tempora rily [deprive another ( victim) of [his] [her] right to the property or any benefit from it] [appropriate the property of another ( victim ) to [his] [her] own use or to the use of any person not entitled to it].

Definitions. Assault. § 784.011

, Fla. Stat. Give if applicable.

An “assault” is defined as an intentional and unlawful threat, either by word or act, to do violence to a victim, when it appears the person making the threat has the ability to carry out the threat, and the act creates in t he mind of

the that victim a well

- founded fear that violence is about to take place.19 Fear. Give only if applicable. Smithson v. State, 689 So. 2d 1226 (Fla. 5 th th DCA 1997). If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the a victim may be found to have been in fear, and actual fear on the part of the a victim need not be shown.

In the course of the taking. § 812.13(3)(b), Fla. Stat. “In the course of the taking” means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or

eve nts.

Afterthought. Give only if applicable. DeJesus v. State, 98 So. 3d 105 (Fla. 2d DCA 2012). If you find that the taking of property occurred as an afterthought to

the use of force or violence [or the threat of force or violence] against (victim)

, th e taking does not constitute r R obbery but may still constitute t T heft.

Title to property. Give if applicable. In order for a taking of property to be r R obbery, it is not necessary that the person robbed be the actual owner of the property. It is sufficient if the

victim person has the custody of the property at the time of the offense.

Force. Give bracketed language only if applicable. Thomas v. State, 36 So. 3d 853 (Fla. 3d DCA 2010). The taking must be by the use of force or violence or by assault so as to
overcome the resistance of the victim a person , or by putting the victim a

person in fear so that the victim he or she does not resist. [The law does not require the force, violence, as sault, or putting in fear to be exerted against the victim from whom the property was taken if the force, violence, assault, or putting in fear was exerted against another in the course of the taking.] The law does not require that the a victim of r R obbery resist to any particular

extent or that the a victim offer any actual physical resistance if the

circumstances are such that the a victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must

be so me resistance to make the taking one done by force or violence.

Victim unconscious. Give only if applicable.20 It is also r R obbery if a person, with intent to take the property from a victim, administers any substance to another so that the victim so tha t [he] [she] becomes unconscious and then takes the property from the person or custody of the that victim.

Taking. Give if applicable. In order for a taking by force, violence, or putting in fear to be robbery, it is not necessary that the taking be from the person of the a victim. It is sufficient if the property taken is under the actual control of the a victim so

that it cannot be taken without the use of force, violence, or intimidation directed against the a victim.

Definition. Jacobs v. State, 41 So. 3d 1004 (Fla. 1 st st DCA 2010) ; DuBose v. State, 210 So. 3d 641 (Fla. 2017). “Dwelling” means a building [or conveyance] of any kind, in cluding any attached porch, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outb uildings immediately surrounding it. [ The enclosure need not be continuous and may have an ungated opening for entering and exiting. ]

Enhanced penalty. Give if applicable. If you find the defendant guilty of the crime of h H ome

- i I nvasion

r R obbery, you must further determine beyond a reasonable doubt if “ in the course of committing the h H ome

- i I nvasion r R obbery

, ” the defendant carried some kind of weapon.

With a firearm. § 812.135(2)(a), Fla. Stat. If you find that the defendant carried a f irearm in the course of committing the h H ome

- i I nvasion r R obbery, you should find [him] [her] guilty

of h H ome

- i I nvasion r R obbery with a firearm.

A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is ( insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert def inition in § 790.001(4), Fla. Stat.) ]21 With a deadly weapon. § 812.135(2)(a), Fla. Stat. If you find that the defendant carried a (deadly weapon described in charge) in the course of committing the h H ome

- i I nvasion r R obbery and that

the (deadly weapon described in charge) was a deadly weapon, you should find [him] [her] guilty of h H ome

- i I nvasion r R obbery with a deadly weapon.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016). “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

With other weapon. § 812.135(2)(b), Fla. Stat. If you find that the defendant carried a weapon that was not a firearm or a deadly weapon in the course of committing the h H ome

- i I nvasion

r R obbery, you should find [him] [her] guilty of h H ome

- i I nvasion r R obbery with a weapon.

A “weapon” is defined to mean any object that could be used to cause death or inflict serious bodily harm.

With no firearm or weapon. § 812.135(2)(c), Fla. Stat. If you find that the defendant carried no firearm or weapon in the course of committing the h H ome

- i I nvasion r R obbery, but did commit t he

h H ome

- i I nvasion r R obbery, you should find [him] [her] guilty only of h H ome

i I nvasion r R obbery.

If applicable, see Instruction 5.1 for “attempt”.22 Lesser Included Offenses

* HOME INVASION ROBBERY

— 812.135

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Burglary of a dwelling 810.02(3) 13.1 Robbery 812.13(2)(c) 15.1 Burglary of a Structure 810.02 13.1

Petit theft

– second degree 812.014(3)(a) 14.1

Assault 784.011 8.1

Grand theft

– first degree 812.014(2)(a) 14.1

Attempt 777.04(1) 5.1 Aggravated battery 784.045 8.4

Grand theft

– second degree 812.014(2)(b) 14.1

Aggravated assault 784.021 8.2 Felony battery 784.041 8.5

Grand theft

– third degree 812.014(2)(c) 14.1

Grand theft

– third degree 812.014(2)(d) 14.1

Felony petit theft 812.014(3)(c) 14.1

Petit theft

– first degree 812.014(2)(e) 14.1

Petit theft

– first degree 812.014(3)(b) 14.1

Battery 784.03 8.3 Trespass 810.08 13.3

Comments

If applicable, see Instruction 5.1 for “attempt.”

*The felony degree of a Home

- Invasion Robbery gets bumped up if a defendant carried a firearm or a deadly weapon or a weapon. In Sanders v. State

, 944 So. 2d 203, 207 n. 3 (Fla. 2006) (Pariente, J., concurring), some Florida Supreme Court justices expressed a preference to have findings for carrying a23 firearm or a deadly weapon or a weapon made in a separate interrogatory rather than as part of lesser

- included offenses.

The Home

- Invasion Robbery statute does not contain an explanation of “in

the course of committing the home

- invasion robbery.” It is unclear whether the courts would look to the robbery and carjacking statutes so that “in the course of committing” would include an attempt to commit Home

- Invasion Robbery or in flight after the attempt or comm ission.

For the crime of h H ome

- i I nvasion r R obbery, it is likely that a the First, Fourth, and Fifth DCAs would hold that the judge must, upon request, instruct that

the jury can convict a defendant of two lesser

- included offenses such as theft and

assault

. See Spencer v. State , 71 So. 3d 901 (Fla. 1 st st DCA 2011) ; Stuckey v. State

, 972 So. 2d 918 (Fla. 5th DCA 2007) ; Gian

- Grasso v

. State , 899 So. 2d 392 (Fla. 4th DCA 2005) ( holding that a defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense).
However, according to the Third DCA, the jury should be given the option of finding multiple lesser

- included offenses only if there is evidence that the force, violence, assault or putting in fear was not used in the course of the taking

. Gordon

v. State , 219 So. 3d 189 (Fla. 3rd DCA 2017).

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2008 [982 So. 2d 1160], and 2013 [122 So. 3d 263], and 201 8

.

26.9 MONEY LAUNDERING § 896.101(3)(a), (3)(b), or (3)(c), Fla. Stat.

Give if Fla. Stat

. § 896.101(3)(a) , Fla. Stat. is charged: To prove the crime of Money Laundering, the State must prove the following four five elements beyond a reasonable doubt:

1. (Defendant) [ conducted] [attempted to conduct] a financial transaction.

2. The money or property involved in the financial transaction represented the proceeds of ( describe name of the specified unlawful activity listed in Fla. Stat. § 895.02 (8)(a)1.

– 50. that is alleged in the charging

document )

.24 3. (Defendant) knew the money or property involved in the financial transaction represented the proceeds of some form of unlawful activity.

Give 4a and/or 4b as applicable.

4. a. (Defendant) did so with the intent to promote the carrying on of ( describe name of the specified unlawful activity listed in Fla. Stat. §

895.02 (8)(a)1.

– 50. that is alleged in the charging document )

.

b. (Defendant) knew that the transaction was designed in whole or in part

1. to [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of ( describe name of the specified unlawful activity listed in Fla. Stat. § 895.02 (8)(a)1.

– 50. that is alleged in the charging document ) ;

[or]

2. to avoid a [transaction reporting requirement] [money transmitters’ registration requirement] under state law.

5. The money or property involved in the financial transaction exceeded $300 in any 12

- month period.

Give if Fla. Stat. § 896.101(3)(b) , Fla. Stat. is charged: To prove the crime of Money Laundering, the State must prove the following two three elements beyond a reasonable doubt:

1. (Defendant) [transported] [attempted to transport] [a monetary instrument] [funds].

Give 2a and/or 2b as applicable.

2. a. (Defendant) did so with the intent to promote the carrying on of ( describe name of the specified unlawful activity listed in Fla. Stat. §

895.02 (8)(a)1.

– 50. that is alleged in the charging document ) ;

[or]

b. (Defendant) knew that the [monetary instrument] [funds] involved in the transportation represented the proceeds of some form of25 unlawful activity and also knew that such transportation was designed in whole or in part

1. [to conceal] [to disguise] the [nature] [location] [source] [ownership] [control] of the proceeds of ( describe name of the specified unlawful activity listed in Fla. Stat. § 895.02 (8)(a)1.

– 50. that

is alleged in the charging document ) ;

[or]

2. to avoid a [transaction reporting requirement] [money transmitters’ registration requirement] under state law.

3. The money or pro perty involved in the financial transaction exceeded $300 in any 12

- month period.

Give if Fla. Stat. § 896.101(3)(c) , Fla. Stat. is charged: To prove the crime of Money Laundering, the State must prove the following three four elements beyond a reasonab le doubt:

1. (Defendant) [conducted] [attempted to conduct] a financial

transaction.

2. The financial transaction involved [property] [proceeds] which [an investigative or law enforcement officer] [someone acting under an investigative or law enforcement officer’s direction] represented as being [derived from] [used to conduct or facilitate] ( describe name of the specified unlawful activity listed in Fla. Stat. § 895.02 (8)(a)1.

– 50. that

is alleged in the charging document )

.

3. (Defendant) did so with the intent to

Give 3a and/or 3b and/or 3c as applicable.

a. promote the carrying on of ( describ e name of the specified unlawful activity listed in Fla. Stat. § 895.02 (8)(a)1.

– 50. that is alleged in the charging document ) ;

[or]26 b. [conceal] [disguise] the [nature] [location] [source] [ownership] [control] of the [proceeds] [property believed to be the proceeds]

of ( describe name of the specified unlawful activity listed in Fla. Stat. §

895.02 (8)(a)1.

– 50. that is alleged in the charging document ) ;

[or]

c. avoid a transaction reporting requirement under state law.

4 . The money or property involved in the financial transaction exceeded $300 in any 12

- month period.

Give in all cases. A[n] (name of the specified unlawful activity in § 895.02(8)(a)1.

– 50. alleged) consists of (give elements of the specified unlawful activity alleged)

. (If applicable, also explain attempt, conspiracy, solicitation, coercion, and/or intimidation to commit the specified unlawful activity.

Give if applicable. Fla. Stat. § 896.101(4) , Fla. Stat

. It is not a defense to Money La undering that:

(a) Any stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed.

(b) A facility or an opportunity to engage in conduct in violation of this act was provided.

(c) A law enforcement officer, or person acting under direction of a law enforcement officer, solicited a person predisposed to engage in conduct in violation of any provision of this chapter to commit a violation of this chapter in order to gain evidence against that person, provided such solicitation would not induce an ordinary law

- abiding person to violate this law.

Note to Judge: This subsection does not preclude the defense of entrapment. See jury instruction 3.6(j).

Definiti ons. Fla. Stats. § 896.101(2)(a), § 896.101(2)( g e ) , Fla. Stat

.27 “ Knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity ” means that the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law, regardless of whether such activity is ( describe n ame the specified unlawful activity listed in Fla. Stat. §

895.02 (8)(a)1.

– 50. that is alleged in the charging document ) . A “felony” is a crime punishable by death or imprisonment in excess of one year. (Name of crime) is a felony.

Fla. Stat. § 896.101(2)( b a ) , Fla. Stat

.

“ Conduct s ed ” includes initiating, concluding, or participating in initiating or concluding a transaction.

Fla. Stat. § 896.101(2)( c i ) , Fla. Stat. “Transaction” means a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purc hase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of a safety deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected.

Fla. Stat. § 896.101( 2)( d c ) , Fla. Stat

. “Financial transaction” means a transaction involving the movement of funds by wire or other means or involving one or more monetary instruments, which in any way or degree affects commerce, or a transaction involving the

transfer of ti tle to any real property, vehicle, vessel, or aircraft, or a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, commerce in any way or degree.

Fla. Stat. § 896.101(2)( f

b ) , Fla. Stat

. “Financi al institution” means [an insured bank] [a commercial bank or trust company] [a private banker] [an agency or branch of a foreign bank] [a credit union] [a thrift institution] [a broker or dealer in securities or commodities] [an investment banker or inves tment company] [a currency exchange] [an operator of a credit card system] [an insurance company] [a dealer in precious metals, stones, or jewels] [a pawnbroker] [a loan or finance company] [a travel agency] [a telegraph company] [the United States Postal28 Service] [ (list one of the other institutions enumerated in 31 U.S.C. § 5312) ], that

is located in Florida.

Fla. Stat. § 896.101(2)( e f

) , Fla. Stat

. “Monetary instruments” means coin or currency of the United States or of any other country, virtual currency, travelers’ checks, personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that title thereto passes upon delivery, and negotiable

instruments in bearer form or otherwise in such form that title thereto passes upon delivery.

§ 896.101(2)(j), Fla. Stat. “Virtual currency” means a medium of exchange in electronic or digital format that is not a coin or currency of the United States or any other
country.

Fla. Stat. § 896.101(2)( h d ) , Fla. Stat

.

“ Knowing ” means that a person knew; or, with respect to any transaction or transportation involving more than $10,000 in U.S. currency or foreign equivalent, should have known after reasonable inquiry, unless the person has a duty to file a federal curren cy transaction report, IRS Form 8300, or a like report under state law and has complied with that reporting requirement in accordance with law.

Fla. Stat. § 896.101(3)(d) , Fla. Stat

. “Investigative or law enforcement officer” means any officer of the

St ate of Florida or political subdivision thereof, of the United States, or of any other state or political subdivision thereof, who is empowered by law to conduct, on behalf of the government, investigations of, or to make arrests for,

offenses enumerated i n this subsection or similar federal offenses.

§ 896.101(5) , Fla. Stat. Give as applicable If you find the defendant guilty of Money Laundering, you must also determine if the State has proven beyond a reasonable doubt whether:

a. the financial transaction involved more than $300 but less than $20,000 during any 12

- month period.

b. the financial transaction involved $20,000 or more but less than $100,000 during any 12

- month period.29 c. the financial transaction involved $100,000 or more during any

12

- month period.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

MONEY LAUNDERING ($100,000 OR GREATER IN ANY 12

- MONTH PERIOD)

— 896.101(3) and 896.101(5)(c)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Money Laundering ($20,000 but less than $100,000 in any 12

- month period) 896.101(3)

and 896.101(5)(b) 26.9

Money Laundering (more than $300 but less than $20,000 in any 12

- month period) 896.101(3)

and 896.101(5)(a) 26.9

Comment

This instruction was adopted in 201 3 [123 So. 3d 54] and amended in 2018

.