# Supreme Court of Florida

____________

No. SC13

- 1914

____________

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

— REPORT NO. 2013

- 06.

[August 28, 2014]

CORRECTED OPINION

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in C riminal

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.

Following publi cation of its proposals in The Florida Bar News , the

Committee filed its report with the Court. The Committee proposes amending the

following jury instructions: 6.1 (Introduction to Attempted Homicide); 11.14,

11.14(a)

- (g) (Failure by a Sexual Offender t o Comply with Registration

Requirements); 11.15, 11.15(a) (Failure to Register as a Sexual Predator);

11.15(b)

- (k) (Failure by a Sexual Predator to Comply with Registration

Requirements); and 22.15 ([Manufacturing] [Owning] [Storing] [Keeping]- 2

-

[Possession of] [Permitting the Operation of] [Selling] [Leasing] [Transporting] a

Slot Machine). In addition, the Committee proposes the following new jury

instructions: 10.20 ([Care] [Custody] [Possession] [Control] of [A Firearm]

[Ammunition] While a Final Injunct ion for [Domestic Violence] [Stalking]

[Cyberstalking] is in Effect); 10.21 (Improper Exhibition of a [Weapon] [Firearm]

[At a School

- Sponsored Event] [On School Property] [On a School Bus] [At a

School Bus Stop] [Within 1,000 Feet of a School]); 11.19 (Se xual Misconduct

Between Detention Facility Employees and Inmates); and 20.20 (Mortgage Fraud).

One comment was received by the Committee with respect to the Failure to

Register instructions, and three comments were received with respect to the Slot

Machin e proposal. Upon review of the comments, the Committee made minor

changes to the Slot Machine proposal that did not warrant republication. The

Court did not publish the proposals after they were filed.

Having considered the Committee’s report and the co mment s submitted to

the Committee , we amend the standard jury instructions as proposed by the

Committee except as noted otherwise, and authorize the amended jury instructions

for publication and use.

New standard jury instruction 11.19 (Sexual Misconduct Between Detention

Facility Employees and Inmates) is authorized as proposed except that the citations

for the definitions of “County detention facility,” “County residential probation- 3

-

center,” and “Municipal detention facility,” are revised to reference th e correct

statutes. In addition, the definition of “M unicipal detention facility” is revis ed to

include in pertinent part, “ a violation of municipal law s or ordinance s .”

The new and amended instructions, as set forth in the appendix to this

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

by underlining

, and deleted language is ind icated by struck

- through type. In

authorizing the publication and use of these instructions, we express no opinion on

their correctness and r emind all interested parties that this authorization forecloses

neither requesting additional or alternative instructions nor contesting the legal

correctness of the instructions. We further caution all interested parties that any

comments associated with the instructions reflect only the opinion of the

Committee and are not necessarily indicative of the views of this Court as to their

correctness or applicability. The instructions as set forth in the appendix shall be

effective when this opinion becomes final.

It is so ordered.

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

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 in structions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.- 4

-

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE

EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceedings

– Supreme Court Committee o n Standard Jury Instructions in

Criminal Cases

Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, Florida, and Judge Joseph Anthony Bulone, Past Chair, Supreme Court Committee on Standard Jur y Instructions in

Crim inal Cases, Clearwater, Florida, and Bart Schneider, Senior Attorney, Office

of the State s Court Administrator, Tallahassee, Florida,

for Petitioner- 5

- APPENDIX

6.1 INTRODUCTION TO ATTEMPTED HOMICIDE

Read in all attempted murder and attempted manslaughter by act cases. In this case (defendant) is accused of (crime charged)

.

Give degrees as applicable. Attempted murder in the first degree includes the lesser crimes of attempted murder in the second degree

, a ttempted murder in the t hird degree, and attempted voluntary manslaughter by act, all of which are forms of attempted homicide and all of which are unlawful.

An attempted killing homicide that is excusable or was committed by the use of justifiable deadly force is lawful.

If you find that there was an attempted killing homicide of (victim) by (defendant)

, you will then consider the circumstances surrounding the attempted killing homicide in deciding if whether it was attempted first degree murder, or attempted second degree m urder, or attempted third degree murder, or attempted voluntary manslaughter by act, or whether the attempted killing homicide was excusable or resulted from justifiable use of deadly force.

JUSTIFIABLE ATTEMPTED HOMICIDE

The An attempted killing homici de of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the attempted killing homici de

.

EXCUSABLE ATTEMPTED HOMICIDE

The An attempted killing homicide of a human being is excusable and therefore lawful under any one of the three following circumstances:

1. When the attempted killing homicide is committed by accident

and misfortune in doi ng any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or- 6

-

2. When the attempted killing homicide occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3. When the attemp ted killing homicide is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel

and unusual manner.

Definition “Dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

I now instruct you on the circumstances that must be proved before defendant may be found guilty of [ attempted first degree murder ] [or] [attempted second degre e murder] [or] attempted manslaughter by act or any lesser included crime

.

Comment

This instruction was adopted in 1994 and amended in 2014

.

10.2 0 [CARE] [CUSTODY] [ POSSESSION ] [CONTROL] OF [ A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTI C VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

§ 790.233(1), Fla. Stat.

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

1. A judge issued a final injunction for protection against [do mestic violence] [stalking] [cyberstalking] against ( defendant)

.

2. The final injunction had been served upon (defendant) or (defendant) had acknowledged receipt.

3. While the final injunction was in force and effect, (defendant) had [ammunition] [a firearm] i n [his] [her] care, custody, possession,

or control.- 7

-

Definitions

. Give as applicable.

Fla. Stat. § 790.001(6). “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the acti on 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 o f a crime .] See Fla. Stat. § 790 .001(1) for the definition of antique firearm.

Fla. Stat. § 790.001(4) “Destructive device” means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device containing an explosive, incendiary, or poison gas

an d includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts ei ther designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one

- half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun she lls or any other ammunition designed for use in a

firearm other than a destructive device.

“Destructive device” does not include:

a. A device which is not designed, redesigned, used, or intended for

use as a weapon;

b. Any device, although originally designe d as a weapon, which is redesigned so that it may be used solely as a signaling, line

throwing, safety, or similar device;

c. Any shotgun other than a short

- barreled shotgun; or

d. Any nonautomatic rifle (other than a short

- barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.- 8

-

Fla. Stat. § 790.001( 19 ) “Ammunition” means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer;

b. One or more projectiles, one or m ore bullets, or shot ;

c. Gunpowder.

“Care” and “custody” mean immediate charge and control exercised by a person over the named item . The terms care, custody, and control may be used interchangeably.

Possession. There are two ways to exercise control: a ctual possession and constructive possession.

Actual possession. Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the perso n,

or

c. the object 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 object

, the object is in a place over which the person has control , and the person has the ability to control the object.

Give if applicable. Mere proximity to a n object is not sufficient to establish control over

that object w hen the object is in a place that the person does not control.

Give if applicable.

I n order to establish constructive possession of an object that was in a place (defendant) d id not control, the State must prove (defendant) (1) knew that the object was within [his] [her] presence and (2) exercised control or ownership over the object it self.- 9

-

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

.

Inferences. Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1 st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4 th DCA 2011). If you find that (defendant) :

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

b. was wit hin ready reach of the [ammunition] [ firearm] and the [ammunition] [firearm] was under [his] [her] control, or

c. had exclusive control of the place where the [ammunition] [firearm] was located, you may infer that [he] [she] was aware of the presence

of th e [ammunition] [ firearm] and had the ability to control [it] [them].

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

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

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4 th DCA 2008). However, you may infer that (defendant) knew of the presence of the [ammunition] [firearm] and had the ability to control [it] [them] if [he] [she] had joint control over the place where the [ammunition ] [firearm] was located,

and the [ammunition] [firearm] was located in a common area in plain view and in the presence of the defendant.- 10

- Lesser Included Offenses

[CARE] [CUSTODY] [ POSSESSION ] [CONTROL] OF [ A FIREARM] [AMMUNITION] WHILE A FINAL INJUNCTION FOR [DOMESTIC VIOLENCE] [STALKING] [CYBERSTALKING] IS IN EFFECT

790.2 33(1)

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

None
Attempt 777.04(1) 5.1

Comment

This crime does not apply to a state or local officer as defined in Fla. Stat. 943.10(14 ), holding an active certification, who receive d or possesse d a firearm or ammunition for use in performing official duties on behalf of the officer’ s employing agency, unless otherwise prohibited by the employing agency.

This instruction was adopted in 2014.

10.21 IMPROPER EXHIBITION OF A [WEAPON] [FIREARM] [AT A SCHOOL

- SPONSORED EVENT] [ON SCHOOL PROPERTY] [ON A SCHOOL BUS] [AT A SCHOOL BUS STOP] [WITHIN 1,000 FEET OF A SCHOOL] § 790.115(1)

, Fla. Stat.

To prove the crime of Improper Exhibition of a [Weapon] [Firearm] [Sword] [Sword Cane] [Electric Weapon or Device] [Destructive Device] [at] [on] [within] [ (insert prohibited place in Fla. Stat. 790.115(1)) ], the State must prove the following four elements beyond a reasonable doubt.

1. (Defendant) had or carried a[n] [weapon] [firearm] [sword] [sword cane] [electric weapon or device] [destructive device].

2. (Defendant) exhibited the [weapon] [firearm] [sword] [sword cane] [electric weapon or device] [destructive device] in a rude, careles s, angry, or threatening manner.

3. (Defendant) did so in the presence of one or more persons.

4. At the time, (defendant) was [at a school

- sponsored event] [on the grounds [or facilities] of a [school] [school bus]] [school bus stop]]- 11

-

[within 1,000 f

eet of the real property that compromises a [public or private elementary school] [middle school] [secondary school] during school hours [or during the time of a sanctioned school activity].

Self

- defense. If you find that the defendant exhibited the [weapo n] [firearm] [sword] [sword cane] [electric weapon or device] [destructive device] in necessary self

defense, you must find the defendant not guilty. Read instructions 3.6(f) and/or 3.6(g) as applicable.

Definitions. Give as applicable. § 790.0 01(13) and § 790.115 (1)

, Fla. Stats. “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, razor blade, box cutter, common pocketknife, box cutter, or a deadly weapon, except a plastic knife or blun t

bladed table knife.

R.R. v. State, 826 So. 2d 465 (Fla. 5 th DCA 2002); Cook v. Crosby, 914 So. 2d 490 (Fla. 1 st DCA 2005). A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or

threatened use b y the defendant was in a manner likely to inflict death or great bodily harm.

§ 790.001(6)

, Fla. Stat. “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

a n 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 .] The definition of “an tique firearm is in Fla. Stat. § 790.001(1).

§ 790.001(14)

, Fla. Stat. “Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or

intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.- 12

-

See § 790.001(4)

, Fla. Stat. for the definition of “destructive device.”

Lesser Included Offenses

IMPROPER EXHIBITION OF A [WEAPON] [FIREARM] AT

SCHOOL

– 7 90.115(1 )

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Improper Exhibition of a Weapon or Firearm (except if the weapon

is a closed common pocketknife) 7 90.10 10.5

Attempt 777.04(1) 5.1

Assault 784.011 8.1

Comment s

The statute has an exception if the exhibition of the weapon or firearm was authorized and in support of school

- sanctioned activities. See § 790.115(1)

, Fla.

Stat.

This crime does not apply if the exhibition of the weapon or firearm was on private real property, within 1,000 feet of a school, by the owner of the property or by a person who had been authorized, licensed, or invited by the owner to be on the property. See § 790.115(1)

, Fla. Stat.

This crime does not apply if the defendant was a law enforcement officer as

defined in § 94 3.10(1), (2), (3), (4), (6), (7), (8), (9), or (14)

, Fla. Stat. See § 790.115(3)

, Fla. Stat.

This instruction was adopted in 2014.

11.14 FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS (Initially Regist er , Report, or Provide Registration Items )

§ 943.0435(2)(a)

- (b), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Offender to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:- 13

- Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status an element as proven by agreement of the par ties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If

there is a stipulation, the court should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, or 3d as applicable.

3. (Defendant)

a. knowingly failed to register in person at an office of the

sheriff of (name of county) County within 48 hours after establishing permanent, temporary, or transient residence

within this state.

b. knowingly failed to report in person at an off ice of the

sheriff of (name of county) County within 48 hours after being released from the [custody, control, or supervision of the Florida Department of Corrections] [custody of a private correctional facility].

c. knowingly failed to register in person a t an office of the

sheriff of (name of county) County within 48 hours after having been convicted by a court in that county of an offense requiring registration.- 14

- d. knowingly failed to provide an office of the sheriff of (name of county) County with [his] [h er] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute) .]

Read only if the defendant is charged with failing to provide a physical

residential address. The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.

Give if the defendant meets his or her burden of produc tion. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply but was misinformed or otherwise prevented from comply ing by the office of the

sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the sta ndard 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 onc e 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

absen ce 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert

a ppropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should- 15

-

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 standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherw ise prevent [him] [her] from complying with the registration requirements

, you should

find (defendant) guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you have a reasonable doubt on the

issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Les ser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754], and 2014

.

11.14(a) FAILURE T O REGISTER AS A SEXUAL OFFENDER BY A

SEXUAL OFFENDER TO COMPLY WITH REGISTRATION

REQUIREMENTS (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel, or Houseboat)

§ 943.0435(2)(b)1, Fla. Stat.

To prove the crime of Failure to Register as a Sexual Offender by a Sexual Offender to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or1b as applicable.

1. (Defendant)

a. is a sexua l offender.- 16

- b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties. If the defendant offers to stipulate, the court must ac cept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “se xual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. uses as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];

and

knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute) ] [any one or

more of the follow ing items: (name the unprovided registration items charged, as worded in the statute) ] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resides.

b. uses as [his] [her] place of residence a [vessel] [live

- aboard vessel] [hou seboat];

and

knowingly failed to provide an office of the sheriff of (name of county) County with [the (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided regi stration items charged, as worded in the statute ] of the- 17

- [vessel] [live

- aboard vessel] [houseboat] where [he] [she]

resides.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013).

It is a defe nse to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statu te for the defense of being misinformed or otherwise prevented from registering, and 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 af firmative 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 v ia 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of t he sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 d efense is on the State under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the regis tration requirements

, you should

find (defendant) guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt- 18

-

on the issue of whether the office of the sheriff misinformed (defendant ) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [ 85 So. 3d 1090] and 2014

.

11.14(b) FAILURE TO REGISTER AS A SEXUAL OFFENDER BY A

SEXUAL OFFENDER TO COMPLY WITH REGISTRATIO N

REQUIREMENTS (Failure to Comply with Registration of Employment or Enrollment at an Institution of Higher Learning)

§ 943.0435(2)(b)2, Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements as a Sexual O ffender , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 ( Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If- 19

-

there is a stipulation, the court should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residen ce in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. [is] [was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state, and

knowingly failed to provide an office of the sheriff o f (name of county) County with [ (the name the single unprovided registration item charged, as worded in the statute) ] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute). ]

b. [is] [was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state.

undertook a change in [his] [her] enrollment or employment status, and

knowingly failed to report this change in person at an office

of the sheriff of (name of co unty) County within 48 hours after the change.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration R equirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from complying with registration requirements, and 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,- 20

-

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 Dix on 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise p revented [him] [her] from complying, 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 reasona ble standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [he r] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt. However, if you have a reasonable doubt

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from compl ying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090] and 2014

.- 21

-

11.14(c) FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS. (Failure to Report to Department of Highway Safet y and Motor Vehicles) § 943.0435(3), Fla. Stat.

To prove the crime of Failure by a Sexual Offender to Comply with Registration Requirements as a Sexual Offender , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the cour t should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. having register ed as a sexual offender with an office of the

sheriff of (name of county) County,

knowingly failed to report in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering to present proof of this registration, and- 22

- knowingly failed to [secure a Florida driver’s license] [renew [his] [her] Florida driver’s license] [secure a Florida identification card].

b. reported in person to a driver’s license office of the Department of Highway Safety an d Motor Vehicles and [secured a Florida driver’s license] [renewed [his] [her] Florida driver’s license] [secured a Florida identification card], but in doing so,

Give one or both of the following as applicable to the charge.

i. failed to report to that off ice that [he] [she] was a

sexual offender.

ii. failed to provide that office with [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as

w orded in the statute) ].

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defen dant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the Department of Highway Safety and Motor Vehicles.

There is no statute for the defense of being misinformed or otherwise prevented from complyi ng, and 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 persuasio n 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 a ffirmative 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.- 23

-

If burden of persuasion is on the defendant: If you find that (defendant) proved (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [ him] [her] or otherwise prevented [him] [her] from complying, 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 u nder the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the Department of Highway Safety and Motor Vehicles did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the

reg istration requirements

, 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 on the issue of whether the Department of Highway Safety and Motor Veh icles misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [ 85 So. 3d 1090] and 2014

.- 24

-

11.14(d) FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO

COMPLY WITH REGISTRATION RE QUIREMENTS (Failure to Report Change of Name or Address within the State or Jurisdiction) § 943.0435(4), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Offender to Comply with Registration Requirements , the State must prove the fo llowing three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the

sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florid a.

Give 3a or 3b, or 3c or 3d as applicable.

3. (Defendant)

a. knowingly failed to report in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles,

Give i, ii, or iii as applicable.

i. when [his] [her] [driver’s license ] [identification card] was subject to renewal.- 25

- ii. within 48 hours after any change in [his] [her] permanent, temporary, or transient residence.

iii. within 48 hours after any change in [his] [her] name by reason of [marriage] [ (specify other legal pro cess) ].

b. knowingly failed to report in person to an office of the

sheriff of (name of county) County, within 48 hours of vacating [his] [her] permanent residence and failing to [establish] [maintain] another [permanent] [temporary] [transient] residence.

c. knowingly failed to report in person to an office of the

sheriff of (name of county) County that [he] [she] remained at [his] [her] permanent residence, within 48 hours after [he] [she] reported to the sheriff [his] [her] intent to vacate [his] [her] pe rmanent residence.

d. reported to

Give i or ii as applicable.

i. an office of the sheriff of (name of county) County

ii. a driver’s license office of the Department of Highway Safety and Motor Vehicles

and

Give iii or iv as applicable.

iii. knowi ngly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute)

.

iv. knowingly failed to provide that office with any one or more of the following items : (name the unprovided registration items cha rged, as worded in the statute)

.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013).- 26

-

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements th at (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [ Department of Highway Safety and Motor Vehicles]

.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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

p roduction 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

persuas ion 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 opini on 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 the [office of the sheriff] [Department of Highway S afety and Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that th e[office of the sheriff] [Department of Highway Safety and Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 standard: If you find that the State proved beyond a reasonable doubt that the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] did

not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a

reasonable do ubt. However, if you have a reasonable doubt on the issue of whether the [office of the sheriff] [Department of Highway Safety and Motor Vehicles] misinformed (defendant) or otherwise prevented [him] [her] from- 27

-

complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified.

Comment

This instruction was adopted in 2008 [983 So.2d 531 ] and revised amended

in 2012 [85 So. 3d 1090] and 2014

.

11.14(e) FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report Change of Residence to Another State or Jurisdiction) § 943.0435(7), Fla. Stat.

To p rove the crime of Failure to Report Change of Address as by a Sexual Offender to Comply with Registration Requirements , the State must prove the following [four] [five] elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a se xual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court mu st accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition o f “sexual offender”

or “convicted.”- 28

-

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

3. (Defendant) intended to leave this State to establish residence in another state or jurisdictio n on (date)

.

Give element 4 or 5, or both, as applicable.

4. (Defendant) knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within 48 hours before the date on which [he] [she] intended to leave th is state to establish residence in another state or jurisdiction.

5. ( Defendant) knowingly failed to provide the address, municipality, county, and state of [his] [her] intended address, when [he] [she] reported to the sheriff’s office of the county of [his] [her] current residence [his] [her] intention to establish residence in another state or jurisdiction. Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013).

It is a defense to the crime of Fa ilure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 b oth 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, th e 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 instruct ion. 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 the office of the sheriff misinfo rmed [him] [her] or otherwise- 29

-

prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinform ed [him] [her] or otherwise prevented [him] [her] from complying, 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 Sta te under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, 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

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise preve nted [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identifi ed for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090] and 2014

.

11.14(f) FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report In tent to Remain within the State or Jurisdiction)

§ 943.0435(8), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Offender to Comply with Registration Requirements , the State must prove the following five elements beyond a reasonable do ubt:

Give 1a or 1b as applicable.

1. (Defendant)- 30

- a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties

.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If

there is a s tipulation, the court should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

3. (Defendant) indicated to an office of the sheriff of (name of county) County [his] [her] intent to leave this state on (date of intended departure) and establish a permanent, temporary, or transient residence in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his] [her] originally intended departure from this state, (defendant) knowingly failed to report to

an office of the sheriff of (name of county) County that [he] [she]

instead decided to remain in this state.

Give if th e defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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- 31

-

production and the burden of persuasion on an affirmative defense by a preponderance of the evide nce. 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

- de fense 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you

should f ind [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the ele ments 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 standard: If you find that the State proved beyond a reasonable doubt that the

o ffice of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyond a reasonabl e doubt. However, if you have a reasonable doubt

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Def initions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090] and 2014

.- 32

-

11.14(g) FAILURE TO REGISTER AS BY A SEXUAL OFFENDER TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report Twice a Year/Failure to Report Quarterly)

§ 943.0435(14)(a) or (b), Fla. Stat.

Give this statement if the charge is failure to report twice a year during the sexual offender’s birthday month and six months later pursuant to § 943.0435(14)(a ), or, for certain specified violators, failure to report during the sexual offender’s birthday month and every third month there after pursuant to § 943.0435(14)(b).

To prove the crime of Failure to Report [Twice a Year][Quarterly] as by a Sexual Offender to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual offender.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual offender; therefore, you should consider the sexual offender status element as proven by agreement of the parties.

If the def endant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, th e court should not give the definition of “sexual offender”

or “convicted.”

2. (Defendant) [established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

Give 3a, 3b, 3c, 3d, or 3e as applicable.

3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (year) to an office of the sheriff- 33

- in the county in which [he] [she] resides or is otherwise

located.

b. knowingly failed to reregister by reporting in person during the sixth month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she]

resides or is otherwise located.

c. knowingly failed to reregister by reporting in person during every third month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.

d. knowingly failed to respond to the address verification correspondence from the Florida Department of Law

Enforcement within three weeks from the date of the correspondence.

e. reported to an office of the sheriff of (name of county) to reregister,

and

Give i or ii as applicable.

i. knowingly failed to provide that office with (name the single unprovided registration item charged, as worded in the statute)

.

ii. knowingly failed to provide that office with any one or more of the following items : (name the unprovided registration items charged, as worded in the statute)

.

Read only if the defendant is charged with failing to provide a physical residential address. The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical

residential address.

Give if the defendant meets his or her burden of production. See Barnes v.
State, 108 So. 3d 700 (Fla. 1st DCA 2013).- 34

-

It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standar d 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 o f 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 ap propriate burden of persuasion) that the [office of the sheriff] [Florida Department of Law Enforcement] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. I f the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff] [Florida Department of Law Enforcement] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty i f 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 standard: If you find that the State proved beyond a reasonable dou bt that the [office of the sheriff] [Florida Department of Law Enforcement] did not

misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, 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 on the issue of whether the [office of the sheriff] [Florida Department of Law Enforcement]

misinformed (defendant) or otherwise prevented [him] [her] f rom complying, with the registration requirements, you should find [him] [her] not guilty.- 35

-

Definitions. See instruction 11.14(h) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offe nse.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754], and 2014

.

11.15 FAILURE TO REGISTER AS A SEXUAL PREDATOR (Initially Register

– In Custody, Control or under the S upervision of the

Department of Corrections) § 775.21(6)(b), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendan t)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipu late, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not giv e the definition of “sexual predator”

or “convicted.”

2. (Defendant) is [in the custody or control of the Department of Corrections] [under the supervision of the Department of Corrections] [in the custody of a private correctional- 36

- facility][under the su pervision of the Department of Corrections, but not incarcerated].

3. (Defendant) [knowingly failed to register with the Department of Corrections as a sexual predator][knowingly failed to register with the Department of Corrections within 3 days of havin g been classified as a sexual predator].

Give if the defendant meets his or her burden of production . See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure to Register as a Sexual Predator

that (defendant) attem pted to register as required by law but was misinformed or otherwise prevented from timely registering by the Department of

Corrections.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 def ense 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 beyo nd 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 the Department of Corrections misinformed [him] [her] or otherwise prevented [him] [her] from registering, you s hould find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Department of Corrections misinformed [him] [her] or otherwise prevented [him] [her] from registering, you should find [him] [her] guilty i f 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 standard:- 37

-

If you find that the State proved beyond a reasonable dou bt that the Department of Corrections did not misinform (defendant) or did not otherwise prevent [him] [her] from registering

, 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 on the issue of whether the Department of Corrections misinformed (defendant) or otherwise prevented [him] [her] from registering, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the a pplicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and amended in 2014

.

11.15(a) FAILURE TO REGISTER AS A SEXUAL PREDATOR (Initially Register

– Not in Custody, Control or under Supervision of the Department of Corrections or a Private Correctional Facility)

§ 775.21(6)(e), Fla. Stat.

To prove the crime of Failure to Register as a Sexual Predator, the State must prove the fol lowing four elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If- 38

-

there is a stipulation, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florid a.

3. (Defendant) was not in the custody or control of or under the supervision of the Department of Corrections and was not in the custody of a private correctional facility.

Give 4a or 4b or 4a and 4b, as appropriate.

4(a). (Defendant) knowingly faile d to register in person with an office of the sheriff in the county where [he] [she] [established] [maintained] residence within 48 hours after [he] [she] established permanent, temporary, or transient residence in this state.

4(b). (Def

endant) knowingly failed to register in person with an office of the sheriff in the county where [he] [she] was designated a sexual predator within 48 hours after having been so designated by the

court.

Give if the defendant meets his or her burden of pro duction. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure to Register as a Sexual Predator

that (defendant) attempted to register as required by law but was misinformed or otherwise prevented from timely regi stering by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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

a bsence 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.- 39

-

If burden of persuasion is on the defendant: If you find that (defendant) proved (i nsert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from registering, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuas ion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from registering, 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 d isproving the affirmative defense is on the State under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] fr om registering

, 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 on the issue of whether the office of

the sheriff misinformed (defendant) or o therwise prevented [him] [her] from registering, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offen se.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090] and 2014

.- 40

-

11.15(b) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS ( Failure to Comply with Registration Requirements Provide Required Information )

§ 775.21(6)(a)1, Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipula tion, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his] [her] (name the unprovided registration items charged, as worded i n the statute) ].

Read only if the defendant is charged with failing to provide a physical

residential address. The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a physical residential address.- 41

-

Give if the defendant meets his or her burden of production . See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to compl y with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which p arty 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 o

f 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, y ou should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 standard: If you find that the State proved beyond a reasonable dou bt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [her] guilty, if all of the elements of the charge have also been proven beyon d a reasonable doubt. However, if you have a reasonable doubt

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not gu ilty.- 42

-

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised a mended

in 2012 [85 So. 2d 1090], and 2013 [113 So. 3d 754], and 2014

.

11.15(c) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer,

Mobile Home, o r Manufactured Home) §775.21(6)(a)1.a., Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as a

pplicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant off

ers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court sh ould not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florida.- 43

-

Give 3a or 3b as applicable.

3. (Defendant)

a. used as [his] [her] pl ace of residence a [motor vehicle] [trailer] [mobile home] [manufactured home];

and

knowingly failed to provide [ an office of the sheriff of (name of county) County ] [the Florida Department of Law Enforcement] with [the (name the single unprovided

reg istration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ]of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resid es.

b. used as [his] [her] place of residence a [vessel] [live

- aboard vessel] [houseboat];

and

knowingly failed to provide [ an office of the sheriff of (name of the county) County ] [the Florida Department of Law Enforcement] with [the (name the single u nprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ] of the
[vessel] [live

- aboard vessel] [houseboat] where [he] [she]

resides.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to compl y with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.- 44

-

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which p arty 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 o

f 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, y ou should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, 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

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guil ty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.- 45

- Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.

11.15(d) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Comply with Registration of Enrollment or Employment in Institutions of Higher Education)

§ 775.21(6)(a)1.b., Fl a. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predat or.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept th e offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the Court should not give the definition of “sexual pr edator”

or “convicted.”

2. (Defendant) [ established] [maintained] a permanent, temporary,

or transient residence in (name of county) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. [is] [was] enrolled, employed, or carrying on a

vocation a t an institution of higher education in this state, and- 46

- knowingly failed to provide the office of the sheriff of (name of county) County with the [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or

more of the following items: (name the unprovided registration items charged, as worded in the statute) ].

b. [ is] [was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state;

undertook a change in [his] [her] enrollment or employment status, and

knowingly failed to report this change in person at an office

of the sheriff of (name of county) County within 48 hours after the change.

c. [is] [was] in the custody of or under the supervision of the Department of Corrections;

[ is] [was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state; undertook a change in [his] [her] enrollment or employment status, and

knowingly failed to report this change to the Department of

Corrections within 48 hours after the change.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements t hat (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [Department of Corrections].

There is no statute for the defense of being misinformed or otherwise

prevente d from registering, and 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- 47

-

production and the bur

den 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 t o 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 the [office of the sheriff][Department of Corrections] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff] [Department of Cor rections] misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 de fense is on the State under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the [office of the sheriff] [Department of Corrections]did not misinform (defendant) or did not otherwise prevent [him] [her] f rom complying with the registration requirements

, 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 on the issue of whether the office of

the sh eriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.- 48

- Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.

11.15(e) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO

COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report to Department of Highway Safety and Motor Vehicles) § 775.21(6)(f), Fla. Stat.

To prove the crime of Failure Failure to Register as by a Sexual

Predator to Comply with Registration Requirements , the State mus t prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual p redator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) [ established] [maintained] a [permanent] [temporary] [transient] residence in (name of county ) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. was not incarcerated;- 49

- [he] [she] resided in the community and was [under the supervision] [not under the supervision] of the Department of Corrections;

[he] [she] registered as a sexual pred ator with an office of

the sheriff of (name of county) County; and

knowingly failed to report in person at a driver’s license office of the Department of Highway Safety and Motor Vehicles within 48 hours after registering to present proof of this registr ation.

b. reported in person to a driver’s license office of the Department of Highway Safety and Motor Vehicles,

and either knowingly failed to [secure a Florida driver’s license] [renew a Florida driver’s license] [secure an identification card] or

secure d a Florida driver’s license] [renewed [his] [her] Florida driver’s license] [secured a Florida identification card], but in doing so,

Give one or both of the following as applicable to the charge.

i. failed to report to that office that [he] [she] was a sexual predator.

ii. failed to provide that office with [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: (name the unprovided registration items charged, as worded in the statute) ].

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to co mply withn the requirements but was misinformed or otherwise prevented from complying by the Department of Highway Safety and Motor Vehicles

.- 50

-

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 affirmati ve 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 defens e 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 f urther guidance.

If burden of persuasion is on the defendant: If you find that (defendant) proved (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [him] [her] or otherwise prevented [him] [ her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Department of Highway Safety and Motor Vehicles misinformed [him] [her]

or oth erwise prevented [him] [her] from complying, 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 standard: If you find that the State proved beyond a reasonable doubt that the Department of Highway Safety and Motor Vehicles did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration require ments

, 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 on the issue of whether the Department of Highway Safety and Motor Vehicles misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.- 51

- Lesser Included Offenses

No lesser inclu ded offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.

11.15(f) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO

COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Provide Other Necessary Information Requested by Department of Law Enforcement) § 775.21(6)(a)2, Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State mus t prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the

sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v . State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to provide an office of the sheriff of (name of county) County with [his] [her] [ (name the single- 52

- unprovided registration item charged, as worded in the statute) ] [any one or more of the following items deter mined necessary by the Florida Department of Law Enforcement : [his] [her] (name the unprovided registration items charged, as worded in the statute) ].

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1 st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sh eriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 per suasion. 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 bur

den 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 judge s 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

per suasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements

, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persu asion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 d isproving the affirmative defense is on the State under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] fr om complying with the registration requirements

, you should- 53

-

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

on the issue of whether the office of the she riff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.

11.15(g) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO

COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report Change of Name or Address within the State or Jurisdiction) § 775.21(6)(g), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State mus t prove the following three elements beyond a reasonable doubt: Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the sexual pr edator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If- 54

-

there is a stipulation, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) [ established] [maintained] a [permanent] [temporary] [transient] residence in (name of county) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. knowingly failed to report in person to a driver’s license office [when [his] [her] driver’s license or identification card was subject to renewal] [within 48 hours after any change in [his] [her] permanent, temporary, or transient residence] [within 48 hours after any change in [his] [her] name by reason of [marriage] [ (specify other legal process) ]].

b. knowingly failed to report in person to an office of the

sheriff of (name of county) Count y within 48 hours of vacating [his] [her] permanent, temporary, or transient residence and failing to establish or maintain another permanent, temporary, or transient residence.

c. knowingly failed to report in person to an office of the

sheriff of (name of county) County that [he] [she] did not vacate [his] [her] permanent, temporary, or transient

residence within 48 hours after (defendant) reported to that agency [his] [her] intent to vacate [his] [her] permanent, temporary, or transient residence.

d. repor ted to

Give i or ii as applicable.

i. an office of the sheriff of (name of county)

ii. a driver’s license office of the Department of Highway Safety and Motor Vehicles

and

Give iii or iv as applicable.- 55

- iii. knowingly failed to provide that offic e with (name the single unprovided registration item charged, as worded in the statute)

.

iv. knowingly failed to provide that office with any one or more of the following items : (name the unprovided registration items charged, as worded in the statute)

.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Offender to Comply with Registration Requirements that (defendant) attempted to compl y with the requirements but was misinformed or otherwise prevented from complying by the [office of the sheriff] [Department of Highway Safety and Motor Vehicles].

There is no statute for the defense of being misinformed or otherwise prevented from regis tering, and 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 persu asion 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 t he 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 the [office of the sheriff][Department of Highway Safety and Motor Vehicles] misinfor med [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the [office of the sheriff][Departme nt of Highway Safety and Motor Vehicles] misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.- 56

-

Or, if the burden o

f disproving the affirmative defense is on the State under the beyond a reasonable standard: If you find that the State proved beyond a reasonable doubt that the [office of the sheriff][Department of Highway Safety and Motor Vehicles] did

not misinform ( defendant) or otherwise prevent [him] [her] from complying with the registration requirements

, 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 on the issue of whether the [office of the sheriff][Department of Highway Safety and Motor Vehicles] misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Def initions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.

11.15(h) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Respond To Address Verification Correspondence )

§ 775.21(10)(a), Fla. Stat.

To prove the crime of Failure to Register a s by a Sexual Predator to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has bee n convicted as a sexual predator; therefore, you should consider the- 57

- sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy wi th the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not give the definition of “sexual predator”

or “convicted.”

2. (Defendant) established or m aintained a permanent, temporary, or

transient residence in (name of county) County, Florida.

3. (Defendant) knowingly failed to respond to address verification correspondence from the Florida Department of Law

Enforcement within three weeks from the date of the correspondence.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (defendan t) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the Florida Department of Law Enforcement.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 aff irmative 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 the Florida Department of Law Enforcement misinformed- 58

-

[him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the Florida Department of Law Enforcement misinformed [him] [her] or otherwise prevent ed [him] [her] from complying, 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 st andard: If you find that the State proved beyond a reasonable doubt that the Florida Department of Law Enforcement did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements , as worded in the statute)], 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 on the issue of whether the Florida Department of Law Enforcement misinformed (defe ndant) or otherwise prevented [him] [her] from complying, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d1090]

, and 2014

.

11.15(i) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report Intent to Move to Another State or Jurisdiction)

§ 775.21(6)(i), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State must prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.- 59

-

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that he has been convicted as a sexual predator; therefore, you should consider the sexual predator status element as proven by agreement of the parties.

If the defendan t offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the cou rt should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florida.

Give 3a or 3b as applicable.

3. (Defendant)

a. intended to le ave this State to establish a permanent, temporary, or transient residence in another state or jurisdiction on (date) ;

and

knowingly failed to report in person to an office of the sheriff in the county of [his] [her] current residence within

48 hours bef

ore the date on which [he] [she] intended to

leave this state to establish residence in another state or jurisdiction.

b. (Defendant) reported to an office of the sheriff of the county of [his] [her] current residence [his] [her] intention to establish

resi dence in another state or jurisdiction;

and- 60

- knowingly failed to provide [[his] [her] (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his] [her] (name the unprovided registratio n items charged, as worded in the statute) .]

Read only if the defendant is charged with failing to provide a physical

residential address. The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a ph ysical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure by a Sexual Predator to Comply with Registration Requirements that (d efendant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by

the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and 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 b eyond 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 furt her guidance.

If burden of persuasion is on the defendant: If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.- 61

-

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable standard: If you find that the State prov ed beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [her] guilty, if all of the elements of the charge h ave also been proven beyond a reasonable doubt. However, if you have a reasonable doubt

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you shou ld find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754]

, and 2014

.

11.15(j) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS (Failure to Report Intent to Remain within the State or Jurisdictio n)

§ 775.21(6)(j), Fla. Stat. To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State must prove the following five elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the- 62

- sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) established or maintained a permanent, temporary, or

transient residence in (name of county) County, Florida.

3. (Defendant) indicated to an office of the sheriff of (name of county) County [his] [her] intent to leave this state on (date of intended departure) and establish a permanent, temporary, or transient residence in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his] [ her] originally intended departure from this state, (defendant) knowingly failed to report to

an office of the sheriff of (name of county) County that [he] [she]

instead decided to remain in this state.

Give if the defendant meets his or her burden of pro duction. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure to Comply with Registration Requirements as a Sexual Predator that (defendant) attempted to comply with the requirements but was misinformed or otherw ise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmativ e 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 d ecided, 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- 63

-

doubt (e.g., self

- defense and consent to enter in a burglary p rosecution). 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 the office of the sheriff misinformed [him] [her] or otherwise prevented [him [her] from complying with the registration requirements, you should find [him] [her] not guilty. If the defendan t did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, 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 standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (def endant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, 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

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the a pplicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and revised amended

in 2012 [85 So. 3d 1090]

, and 2014

.- 64

-

11.15(k) FAILURE TO REGISTER AS BY A SEXUAL PREDATOR TO COMPLY WITH REGISTRATION REQUIREMENTS

(Failure to Register Quarterly) § 775.21(8)(a), Fla. Stat.

To prove the crime of Failure to Register as by a Sexual Predator to Comply with Registration Requirements , the State m ust prove the following three elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. (Defendant)

a. is a sexual predator.

b. has agreed or stipulated that [he] [she] has been convicted as a sexual predator; therefore, you should consider the

sexual predator status element as proven by agreement of the parties.

If the defendant offers to stipulate, the court must accept the offer after conducting an on

- the

- record colloquy with the defendant. See Brown v. State, 719 So. 2d 882 (Fla. 1998); Johnson v . State, 842 So. 2d 228 (Fla. 1st DCA 2003). If there is a stipulation, the court should not also give the definition of “sexual predator” or “convicted.”

2. (Defendant) [ established] [maintained] a permanent, temporary,

or transient residence in (name of c ounty) County, Florida.

Give 3a, 3b, or 3c as applicable.

3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (year) to an office of the sheriff in the county in which [he] [she] resides or is otherwi se located.

b. knowingly failed to reregister by reporting in person during every third month following [his] [her] (year) birthday month to an office of the sheriff in the county in which [he] [she] resides or is otherwise located.- 65

- c. knowingly failed to prov ide an office of the sheriff of (name of county) County with a change to [his] [her] [ (name the single unprovided registration item charged, as worded in the statute) ] [any one or more of the following items: [his] [her] (name the unprovided registration i tems charged, as worded in the statute) ].

Read only if the defendant is charged with failing to provide a physical

residential address. The defendant shall provide a physical residential address. A post office box shall not be provided in lieu of a phys ical residential address.

Give if the defendant meets his or her burden of production. See Barnes v. State, 108 So. 3d 700 (Fla. 1st DCA 2013). It is a defense to the crime of Failure to Comply with Registration Requirements as a Sexual Predator that (def endant) attempted to comply with the requirements but was misinformed or otherwise prevented from complying by the office of the sheriff.

There is no statute for the defense of being misinformed or otherwise prevented from registering, and the case law i s 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 de fense 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 bey ond 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 furthe r guidance.

If burden of persuasion is on the defendant: If you find that (defendant) proved (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying with the re gistration requirements, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that the office of the sheriff misinformed [him] [her] or otherwise prevented [him] [her] from complying, you should- 66

-

f ind [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 standard: If you find that the State proved beyond a reasonable doubt that the

office of the sheriff did not misinform (defendant) or did not otherwise prevent [him] [her] from complying with the registration requirements

, you should find [him] [her] guilty, if all of the elements of the charge hav e also been proven beyond a reasonable doubt. However, if you have a reasonable doubt

on the issue of whether the office of the sheriff misinformed (defendant) or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.

Definitions. See instruction 11.15(l) for the applicable definitions.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2008 [983 So. 2d 531] and revised amended

in 2012 [85 So. 3d 1090], and 2013 [113 So. 3d 754]

, and 2014

.

11.1 9 SEXUAL MISCONDUCT BETWEEN DETENTION FACILITY

EMPLOYEES AND INMATES § 951.221 (1)

, Fla. Stat.

To prove the crime of Sexual Misconduct Between Detention Facility Employees and Inmates , the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was an employee of a [ county or municipal detention facility ] [ private detention facility under contract with a county

commission ].

2. While an employee, ( d efendant) engage d in sexual misconduct with ( inmate )

.- 67

-

3. At the time, ( inmate ) was an [ inmate ] [ offender supervised by the facility ].

§ 951.221(1)

, Fla. Stat. Consent is not a d efense

. The consent of an [ inmate ] [offender] to any act o f sexual m isconduct is

not a defense to the crime of Sexual Misconduct

.

Definitions

. § 951.221(1)

, Fla. Stat. and § 944.35(3)(b)1, Fla. Stat. “Sexual Misconduct” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object , but does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of the employee’s duty.

Give as applicable.

“Union” means contact.

§ 951.23(1)(a)

, Fla. Stat. “County Detention Facility” means a county jail, a county stockade, a county work camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or

misdemeanor.

§ 9 51 .23(1)(b), Fla. Stat. “County Residential Probation Center” means a county

- operated facility housing offenders serving misdemeanor sentences or first

- time felony

sentenc es.

§ 9 51 .23(1)(d), Fla. Stat. “Municipal Detention Facility” means a city jail, a city stockade, a city prison camp, and any other place except a county detention facility used by a municipality or municipal officer for the detention of persons charged w ith or

convicted of a violation of municipal laws or ordinances.- 68

- L esser Included Offenses

SEXUAL MISCONDUCT BETWEEN DETENTION FACILITY

EMPLOYEES AND INMATES

— 951.221(1)

None Battery 784.03 8.3

Attempt 777.04(1) 5.1

Assault 784.011 8.1

Commen t

This instruction was adopted in 201 4

.

20.20 MORTGAGE FRAUD § 817.545(2) & (5)

, Fla. Stat.

In order to prove the crime of Mortgage Fraud, the State must prove the following element beyond a reasonable doubt:

(Defendant)

, with intent to defraud , know ingly:

Give a, b, c, d, and/or e as applicable.

a. made any material [misstatement] [misrepresentation] [omission] during the mortgage lending process with the intent that the [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender] [a borrower] [or] [any other person or entity] involved in the mortgage lending process];

b. used or facilitated the use of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process with the inten t that the material [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender][a borrower] or [any other person or entity] involved in the mortgage lending process;

c. received any [proceeds] [or other funds] in connection with t he mortgage lending process that [he] [she] knew resulted from the making of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process that was made with the intent that the [misstatement] [misrepresentation]- 69

- [omission] would be relied on by [a mortgage lender] [a borrower] [or] [any other person or entity] involved in the mortgage lending process];

d. received any [proceeds] [or other funds] in connection with the mortgage lending process that [he] [she] knew resulted fro m the use of any material [misstatement] [misrepresentation] [omission] during the mortgage lending process that was made with the intent that the material [misstatement] [misrepresentation] [omission] would be relied on by [a mortgage lender] [a borrower] or [any other person or entity] involved in the mortgage lending process];

e. filed or caused to be filed with the clerk of the circuit court for any Florida county a document involved in the mortgage lending process which contained a material [m isst atement] [misrepresentation] [or] [omission].

Give if applicable. § 817.545(5)(b)

, Fla. Stat

. If you find that the defendant guilty of Mortgage Fraud, you must also determine if the State proved beyond a reasonable doubt whether the loan

value stated on do cuments used in the mortgage lending process exceeded $100,000.

§ 817.545(2)(a) & (b)

, Fla. Stat. Omissions on a loan application regarding employment, income, or assets for a loan which does not require this information are not considered

material omissi ons for purposes of Mortgage Fraud

.

§ 817.545( 1 )

, Fla. Stat. Documents involved in the mortgage lending process include, but are not limited to, mortgages, deeds, surveys, inspection reports, uniform residential loan applications, or other loan applicatio ns; appraisal reports;

HUD

- 1 settlement statements; supporting personal documentation for loan applications such as W

- 2 forms, verifications of income and employment, credit reports, bank statements, tax returns, and payroll stubs; and any required disclos ures.

§ 817.545(1)

, Fla. Stat.

“ Mortgage lending process ” means the process through which a person seeks or obtains a residential mortgage loan, including, but not limited to, the- 70

-

solicitation, application or origination, negotiation of terms, third

- party provider services, underwriting, signing and closing, and funding of the loan.

“Knowingly” means that the defendant is aware of the act and is not acting through ignorance, mistake or accident.

“Material” means a fact a reasonable person would use to de cide whether to do or not to do something. A fact is material if it has the capacity or natural tendency to influence a person’s decision. Any misrepresentation or concealment must be reasonably calculated to deceive persons of ordinary prudence and comp rehension.

Lesser Included Offenses

MORTGAGE FRAUD

— 817.545

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

None Attempt 777.04(1) 5.1

Comment

The crime of Mortgage Fraud may not be predicated solely upon information lawfully disclosed under fe deral disclosure laws, regulations, or interpretations related to the mortgage lending process. See § 817.545( 3 )

, Fla. Stat.

This instruction was adopted in 2014.

22.15 [MANUFACTUING] [OWNING] [STORING] [KEEPING] [POSSESSION OF ] [PERMITTING THE OPERA TION OF ] [SELLING] [LEASING] [TRANSPORTING] OF A SLOT MACHINE

§ 849.15(1)(a) and (b), Fla. Stat.

To prove the crime of (crime charged) , the State must prove the following element beyond a reasonable doubt:

Give as applicable. (Defen dant)- 71

-

a. [manufactured] [owned] [stored] [kept] [possessed] [sold] [leased] [let on shares] [lent] [gave away] [transported] [exposed for sale or lease] any slot machine or device [or any part of a slot machine or device].

b. offered to [sell] [rent] [lease] [let on shares] [lend] [give away] any slot machine or device [or any part of a slot machine or device].

c. permitted the operation of any slot machine or device [or any part of a slot machine or device].

d. permitted any slot machine or device [or any part of a slot machine or device] to be [placed] [maintained] [used] [kept] in a [room] [space] [building] owned, leased, or occupied by [him] [her] or under [his] [her] management or control.

e. [or permitted to be made] an agree ment with another, pursuant to which the user of any slot machine or device, as a result of any element of chance [or other outcome unpredictable to him or her] may become entitled to receive [money] [credit] [allowance] [a thing of value] [an additional chance or right to use the slot machine or device] [any [check] [slug] [token] [memorandum] entitling the holder to receive [money] [credit] [allowance] [or] [thing of value]].

§ 849.16, Fla. Stat.

A “slot machine or device” is a machine or dev ice or system or network

of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, as a result of the insertion of any piece of money, coin, account number, code, or other object or information

, such device or system is directly or indirectly caused to operate or may be operated or other object, such machine or device is caused to operate or may be operated and if the user, whether by application of skill or by reason of any

element of chance or of any other outcome of such operation unpredictable by him or her, the user, may:

(a) receive or become entitled to receive any piece of money, credit, allowance, or thing of value; or- 72

-

(b) receive or become entitled to receive any check, slug, token, or memorandum, whether of value or otherwise, which may be

exchan ged for any money, credit, allowance, or thing of value or which may be given in trade; or

(c) secure additional chances or rights to use such machine, apparatus, or device, even though the device or system may be available for free play, or, it may, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.

Give if applicable. §§ 849.16(1)(b), 551.102(8)

, Fla. Stats. A “slot machine” includes, but is not limited to, devices regulated as slot machines under chapter 551 of Florida Statutes. Under chapter 551, a “slot machine” means any mechanical or electrical contrivance, terminal that may or may not be capable of downl oading slot games from a central server system, machine, or other device that, upon insertion of a coin, bill, ticket, token, or similar object or upon payment of any consideration whatsoever, including the use of any electronic payment system except a cre dit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both, may deliver or entitle the person or persons playing or operating the contrivance, terminal , machine, or other device to receive cash, billets, tickets, tokens, or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually. The term includes associated equipment necessary to conduct the operation of the contrivance, terminal, machine, or other device. Slot machines may use spinning reels, video displays, or both. [A slot machine is not a “coin

- operated amusement

machine” as defined in § 212.02 (24)

, Fla. Stat. or an amusement game or

machine as described in § 849.161

, Fla. Stat.] Instruct on § 212.02 (24)

, Fla. Stat.

or § 849.161

, Fla. Stat. as applicable.

Give if applicable. § 849.094(8)(a)

, Fla. Stat. Compliance with the rules of th e Department of Agriculture and Consumer Services is not a defense to a charge of Possession of a Slot Machine

or Device.

Give if applicable. § 849.16(3)

, Fla. Stat.- 73

-

You are permitted to infer that a device, system, or network is a prohibited slot machin e or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

Lesser Included Offenses

[POSSESSION] [PERMITTING THE OPERATION] OF A SLOT

MACHINE

— 849.15(1)(a) and (b)

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

None Attempt 777.04(1) 5.1

Comments

It is not necessary for the State to prove that the slot machine or device was used for gambling. See Eccles v. Stone, 183 So. 628 (Fla. 1938) ; Dept. of Business Regulation v. Rains, 477 So. 2d 1029 (Fla. 2d DCA 1985)

.

It is a defense to Possession of a Slot Machine if the device is an antique slot machine and is not being used for gambling. An antique slot machine is one which

was manufactured at least 20 years prior to the prosecution. See § 849.235

, Fla.

Stat.

This instruction was adopted in 2013 [ 122 So. 3d 302 ] and amended in 2014

.