Supreme Court of Florida

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No. SC14-2507

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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—

REPORT NO. 2014-08.

[October 8, 2015]

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal 

Cases (Committee) has submitted proposed changes to the standard jury 

instructions and asks that the Court authorize the amended standard instructions for 

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

The Committee proposes amending the following existing standard criminal 

jury instructions: 7.9 (Vehicular or Vessel Homicide); 11.10(f) (Lewd or 

Lascivious Exhibition Over Computer Service); 11.10(g) (Lewd or Lascivious 

Exhibition by a Detainee in the Presence of an Employee of a Facility); 13.1 

(Burglary); 14.9 (Exploitation of [an Elderly Person] [a Disabled Adult]); 20.15 

(Fraudulent Use of Personal Identification Information of a Minor); 20.16 

(Fraudulent Use of Personal Identification Information of a Minor by a Parent or 
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Guardian); 22.5 (Setting Up, Promoting, Conducting a Lottery); 22.6 (Disposing of 

Money, Property by Lottery); 22.7 (Conducting a Lottery Drawing); 22.8 

(Assisting in Lottery); 22.9 (Selling Lottery Tickets); 22.10 (Possessing a Lottery 

Ticket); 22.11 (Possessing Rundown Sheets, Etc.); 23.8 (Selling a Minor into 

Prostitution by a [Parent] [Legal Guardian] [Person with Control of the Minor]); 

29.24 (Human Trafficking); and 29.25 (Human Trafficking by a [Parent] [Legal 

Guardian] [Person with Control] of a Minor). The Committee also proposes the 

following new jury instruction: 20.21 (Fraudulent Use of Personal Identification 

Information of a [Disabled Adult] [Public Servant] [Veteran] [First Responder] 

[State Employee] [Federal Employee]). The Committee published its proposals in 

The Florida Bar News. Four comments were received by the Committee. The 

Court did not publish the proposals after they were filed.

Having considered the Committee’s report, the comments submitted to the 

Committee, and the Committee’s response to the Court’s request for additional 

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

Committee, with one modification discussed below, and authorize them for 

publication and use.

Section 782.071, Florida Statutes (2014), defines the offense of Vehicular 

Homicide, while section 782.072, Florida Statutes (2014), defines the offense of 

Vessel Homicide. Element 1 of instruction 7.9 differentiates between the two 
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offenses consistent with the applicable statute. Because Vessel Homicide does not 

specifically provide for a separate offense for death of an unborn child, section 

775.021(5),1 newly enacted during the 2014 legislative session, see ch. 2014-194, 

§ 2, Laws of Fla., operates to include death of an unborn child as part of the 

offense of Vessel Homicide. Vehicular Homicide, on the other hand, includes 

death of an unborn child by any injury to the mother as part of the offense. Death 

of an unborn child is therefore applicable to both Vessel Homicide and Vehicular 

Homicide, and the italicized note in instruction 7.9 to the contrary is deleted. 

We also note the following more significant changes to the jury instructions

as amended. First, regarding the lottery instructions, i.e., 22.5, 22.6, 22.7, 22.8, 

22.9, 22.10, and 22.11, a citation to the case that sets out the three elements 

defining “lottery,” Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939), is 

added. In addition, the definition of “lottery” is simplified to only include the three 

elements already set out in the instructions. Also defined are the term and phrases

 

1. Section 775.021(5) provides as follows:

Whoever commits an act that violates a provision of this code or 

commits a criminal offense defined by another statute and thereby 

causes the death of, or bodily injury to, an unborn child commits a 

separate offense if the provision or statute does not otherwise 

specifically provide a separate offense for such death or injury to 

an unborn child.

§ 775.021(5), Fla. Stat. (2014). 
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“bet,” “thing ventured,” and “prize by lot or chance.” The portion of the definition 

defining “lottery” as follows is deleted: “is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event.”

Next, instruction 23.8 (Selling a Minor into Prostitution by a [Parent] [Legal 

Guardian] [Person with Control of the Minor]) is removed. Finally, regarding the 

human trafficking instruction, 29.24, “use of coercion” is moved from the 

definition section to element two of the offense, where “use of coercion” is

applicable to establishing the offense of “human trafficking.” 

The new and amended criminal jury instructions, as set forth in the appendix 

to this opinion, are hereby authorized for publication and use.2 New language is 

indicated by underscoring, and deleted language is indicated by struck-through 

type. In authorizing the publication and use of these instructions, we express no 

opinion on their correctness and remind all interested parties that this authorization 

forecloses neither requesting additional or alternative instructions nor contesting 

the legal correctness of the instructions. We further caution all interested parties 

 

2. The amendments as reflected in the appendix are to the Criminal Jury 

Instructions as they appear on the Court’s website at www.floridasupremecourt.org 

/jury_instructions/instructions.shtml. We recognize that there may be minor 

discrepancies between the instructions as they appear on the website and the 

published versions of the instructions. Any discrepancies as to 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.
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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.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

Original Proceeding – Supreme Court Committee on Standard Jury Instructions in 

Criminal Cases 

Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury 

Instructions in Criminal Cases, Sanford, Florida; and Bart Neil Schneider, Staff 

Liaison, Office of the State Courts Administrator, Tallahassee, Florida,

for Petitioner
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APPENDIX

7.9 VEHICULAR OR VESSEL HOMICIDE

§ 782.071 or § 782.072, Fla. Stat.

To prove the crime of [Vehicular] [Vessel] Homicide, the State must 

prove more than a failure to use ordinary care, and must prove the following 

three elements beyond a reasonable doubt:

Give 1a, 1b, or 1c as applicable. Element 1a applies to either Vehicular 

Homicide or Vessel Homicide. Element 1b applies to Vehicular Homicide only. 

Element 1c applies to Vessel Homicide only. See § 775.021(5), Fla. Stat.

1. a. (Victim) is dead.

b. An unborn child is dead by injury to the mother.

c. An unborn child is dead.

2. The death was caused by the operation of a [motor vehicle] 

[vessel] by (defendant).

3. (Defendant) operated the [motor vehicle] [vessel] in a reckless 

manner likely to cause the death of or great bodily harm to 

another person.

An intent by the defendant to harm or injure the victim or any other 

person is not an element to be proved by the State. The State does not have to 

prove the defendant intended to harm or injure anyone. However, the reckless 

operation of a [motor vehicle] [vessel] requires the State to prove more than a 

failure to use ordinary care. A “reckless manner” means in willful or wanton 

disregard for the safety of persons or property. 

Enhanced penalty. § 782.071(1)(b) or § 782.072(2), Fla. Stat. Give if 

applicable.

If you find the defendant guilty of [vVehicular] [vVessel] hHomicide, 

you must then determine whether the State has further proved beyond a 

reasonable doubt that:
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1. At the time of the accident, (defendant) knew, or should have 

known, that the accident occurred; and

2. (Defendant) failed to give information and render aid as required 

by law. (Read applicable portion of § 316.062, Fla. Stat., as charged 

in information or indictment.) 

However, the State is not required to prove (defendant) knew that the 

accident resulted in injury or death.

Definitions.

Give if applicable. § 782.071(2), Fla. Stat. Applicable only to Vehicular 

Homicide.

“Victim” includes a human being or a viable fetus which is killed as a 

result of any injury to the mother. A fetus is viable when it becomes capable 

of meaningful life outside the womb through standard medical measures. An 

“unborn child” means a member of the species homo sapiens, at any stage of 

development, who is carried in the womb.

§ 327.02(39) Fla. Stat. Applicable only to Vessel Homicide.

“Vessel” is synonymous with boat and includes every description of 

watercraft, barge, and airboat, other than a seaplane on the water, used or 

capable of being used as a means of transportation on water.

Lesser Included Offenses

VEHICULAR OR VESSEL HOMICIDE – 782.071 or 782.072

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

Reckless driving 316.192 28.5

Reckless or careless

operation of vessel

327.33

Culpable negligence 784.05(2) 8.9

Culpable negligence 784.05(1) 8.9

Comments

Culpable negligence is a Category Two lesser included offense of both 

vehicular and vessel homicide.
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This instruction was adopted in 1981 and amended in 1989, 2006 [946 So. 

2d 1061], and 2008 [994 So. 2d 1038], and 2015.

11.10(f) LEWD OR LASCIVIOUS EXHIBITION

OVER COMPUTER SERVICE

§ 847.0135(5), Fla. Stat.

To prove the crime of Lewd or Lascivious Exhibition over a Computer 

Online Service, the State must prove the following four elements beyond a 

reasonable doubt:

Give 1a, 1b, and/or 1c as applicable.

1. a. [(Defendant) intentionally masturbated].

b. [(Defendant) intentionally exposed [his] [her] genitals in a 

lewd or lascivious manner].

c. [(Defendant) committed [a sexual act] [sadomasochistic 

abuse] [sexual bestiality] [simulation of any act involving 

sexual activity] that did not involve actual physical or sexual 

contact with (victim)].

2. The act was committed live over a [computer on-line service] 

[internet service] [local bulletin board service].

3. At the time of the offense, (Vvictim) was under the age of 16 years 

or

(Defendant) [knew] [should have known] [had reason to believe] 

that the transmission was viewed on a computer or television 

monitor by a victim in this state who was under the age of 16 

years at the time of the offense.

Give 4a or 4b as applicable.

4. a. (Defendant) was 18 years of age or older at the time of the 

offense.

b. (Defendant) was less than 18 years of age at the time of the 

offense.
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Definitions.

The words “lewd” and “lascivious” mean the same thing: and mean a 

wicked, lustful, unchaste, licentious, or sensual intent on the part of the person 

doing an act.

§800.04(1)(a), Fla. Stat.

“Sexual activity” 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; however, sexual activity does not include an act 

done for a bona fide medical purpose.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

The definition of “an object” includes a finger. 

§847.001(13), Fla. Stat.

“Sadomasochistic abuse” means flagellation or torture by or upon a 

person or animal, or the condition of being fettered, bound, or otherwise 

physically restrained, for the purpose of deriving sexual satisfaction, or 

satisfaction brought about as a result of sadistic violence, from inflicting harm 

on another or receiving such harm oneself.

§847.001(15), Fla. Stat.

“Sexual bestiality” means any sexual act, actual or simulated, between 

a person and an animal involving the sex organ of the one and the mouth, 

anus, or vagina of the other.

§ 800.04(2), Fla. Stat.

Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to 

the crime charged.

§ 800.04(3), Fla. Stat.

The defendant’s ignorance of the (victim’s) age, (victim’s) 

misrepresentation of [his] [her] age, or the defendant’s bona fide belief of 

(victim’s) age is not a defense to the crime charged.

The fact that an undercover operative or law enforcement officer was 

involved in the detection and investigation of an offense is not a defense to the 

crime charged.
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Lesser Included Offenses

LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE, 

DEFENDANT 18 YEARS OF AGE OR OLDER — 847.0135(5)(b)

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

None Lewd or 

Lascivious Exhibition 

over Computer Service, 

Defendant less than 18 

years of age

847.0135(5)(c) 11.10(f)

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2008 [998 So. 2d 1138] and amended in 

2015. For offenses occurring prior to October 1, 2008, refer to section 

800.04(7)(b), Florida Statutes (2007).

11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE

IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY 

§ 800.09, Fla. Stat.

To prove the crime of Lewd or Lascivious Exhibition by a Detainee in 

the Presence of an Employee of a Facility, the State must prove the following 

three elements beyond a reasonable doubt:

1. (Defendant) was detained in a [state correctional institution] 

[private correctional facility]. 

2. While detained, (defendant) intentionally 

Give as applicable.

a. masturbated.

b. exposed [his] [her] genitals in a lewd or lascivious manner.
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c. committed [a sexual act] [sadomasochistic abuse] [sexual 

bestiality] [the simulation of any act involving sexual 

activity] that did not involve actual physical or sexual 

contact with a victim.

3. (Defendant’s) act was intentionally committed in the presence of a 

person [he] [she] knew or reasonably should have known was an 

employee of the [institution] [facility].

Definitions. Give as applicable.

§ 944.02(8), Fla. Stat.

A “state correctional institution” is any prison, road camp, prison 

industry, prison forestry camp, or any prison camp or prison farm or other 

correctional facility, temporary or permanent, in which prisoners are housed, 

worked, or maintained, under the custody and jurisdiction of the Department 

of Corrections. 

§ 944.710(3), Fla. Stat.

A “private correctional facility” is any facility, which is not operated by 

the Department of Corrections, for the incarceration of adults or juveniles 

who have been sentenced by a court and committed to the custody of the 

Department of Corrections. 

§ 800.09(1)(a), Fla. Stat.

“Employee” means any person employed by or performing contractual 

services for a public or private entity operating a state correctional institution 

or a private correctional facility or any person employed by or performing 

contractual services for the corporation operating the prison industry 

enhancement programs [or the correctional work programs under part II of 

chapter 946]. [The term also includes any person who is a parole examiner 

with the Parole Commission.] 

The words “lewd” and “lascivious” mean the same thing: a wicked, 

lustful, unchaste, licentious, or sensual intent on the part of the person doing 

an act.

§ 800.04(1)(a), Fla. Stat.

“Sexual activity” means the oral, anal, or vaginal penetration by, or 

union with, the sexual organ of another or the anal or vaginal penetration of 
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another by any other object; however, sexual activity does not include an act 

done for a bona fide medical purpose.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

The definition of “an object” includes a finger. 

§ 847.001(13), Fla. Stat.

“Sadomasochistic abuse” means flagellation or torture by or upon a 

person or animal, or the condition of being fettered, bound, or otherwise 

physically restrained, for the purpose of deriving sexual satisfaction, or 

satisfaction brought about as a result of sadistic violence, from inflicting harm 

on another or receiving such harm oneself.

§ 847.001(15), Fla. Stat.

“Sexual bestiality” means any sexual act, actual or simulated, between a 

person and an animal involving the sex organ of the one and the mouth, anus, 

or vagina of the other.

§ 800.04(1)(d), Fla. Stat.

“Victim” means a person upon whom the acts described above was 

committed or attempted or a person who has reported these acts to a law 

enforcement officer. 

See State v. Werner, 609 So.2d 585 (Fla. 1992).

“In the presence of” means that a victim saw, heard, or otherwise 

sensed that the act was taking place.

§ 800.04(2), Fla. Stat.

Neither a victim’s lack of chastity nor a victim’s consent is a defense to 

the crime charged.

Lesser Included Offenses

LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE 

PRESENCE OF AN EMPLOYEE OF A FACILITY—800.09

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

None
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Attempt 777.04(1) 5.1

Unnatural and lascivious 

act

800.02 11.8

Comment

This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2015.

13.1 BURGLARY

§ 810.02, Fla. Stat.

Give if the information or indictment charges entering with the intent to 

commit an offense:

To prove the crime of Burglary, the State must prove the following 

[two] [three] elements beyond a reasonable doubt:

1. (Defendant) entered a [structure] [conveyance] owned by or in the 

possession of (person alleged).

2. At the time of entering the [structure] [conveyance], (defendant) 

had the intent to commit [(the crime alleged)] [an offense other 

than burglary or trespass] in that [structure] [conveyance].

The offense intended cannot be trespass or burglary.

Give element 3 only if defendant meets his or her burden of production that 

he or she had an invitation or license to enter, or that the premises were open to 

the public. See State v. Hicks, 421 So. 2d 510 (Fla. 1982), and State v. Waters, 436 

So. 2d 66 (Fla. 1983).

3. [(Defendant) was not [licensed] [invited] to enter the [structure] 

[conveyance].] [The premises were not open to the public at the 

time of the entering.] 

Give if applicable.

If the [license] [invitation] to enter was obtained by (defendant’s) trick or 

fraud or deceit, then the [license] [invitation] to enter was not valid.
- 14 -

Give if applicable.

If (defendant) entered premises that were open to the public, but then 

entered an area of the premises that [he] [she] knew or should have known 

was not open to the public, (defendant) committed a burglary if [he] [she] 

entered that non-public area with the intent to commit [(the crime alleged)]

[an offense other than burglary or trespass] in that non-public area.

Give if applicable. § 810.07 Fla. Stat.

You may infer that (defendant) had the intent to commit a crime inside a 

[structure] [conveyance] if the [entering] [attempted entering] of the 

[structure] [conveyance] was done stealthily and without the consent of the 

owner or occupant.

Give if applicable.

The entry necessary need not be the whole body of the defendant. It is 

sufficient if the defendant, with the intent to commit a crime, extends any part 

of [his] [her] body into the [structure] [conveyance]. 

Give if the information or indictment charges remaining with the intent to 

commit an offense: 

To prove the crime of Burglary, the State must prove the following two 

elements beyond a reasonable doubt:

1. (Defendant) had permission or consent to enter a [structure] 

[conveyance] owned by or in the possession of (person alleged).

2. (Defendant), after entering the [structure] [conveyance], remained 

therein

Give 2a, 2b, or 2c as applicable.

a. surreptitiously and with the intent to commit [(the crime 

alleged)] [an offense other than burglary or trespass] inside 

the [structure] [conveyance].

b. after permission to remain had been withdrawn and with 

the intent to commit [(the crime alleged)] [an offense other 

than burglary or trespass] inside the [structure] 

[conveyance].
- 15 -

c. with the intent to commit or attempt to commit a [forcible 

felony] [(the forcible felony alleged)] inside the [structure] 

[conveyance]. 

The offense intended cannot be trespass or burglary. Forcible felonies are 

listed in § 776.08 Fla. Stat.

Proof of intent.

The intent with which an act is done is an operation of the mind and, 

therefore, is not always capable of direct and positive proof. It may be 

established by circumstantial evidence like any other fact in a case.

Even though an unlawful [entering] [remaining in] a [structure] 

[conveyance] is proved, if the evidence does not establish that it was done with 

the intent to commit [(the crime alleged)] [an offense other than burglary or 

trespass], the defendant must be found not guilty of burglary.

Proof of possession of stolen property.

Proof of possession by an accused of property recently stolen by means 

of a burglary, unless satisfactorily explained, may justify a conviction of 

burglary if the circumstances of the burglary and of the possession of the 

stolen property convince you beyond a reasonable doubt that the defendant 

committed the burglary.

Definitions; give as applicable.

§ 810.011(1), Fla. Stat.

“Structure” means any building of any kind, either temporary or 

permanent, that has a roof over it, and the enclosed space of ground and 

outbuildings immediately surrounding that structure.

§ 810.011(3), Fla. Stat.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, 

trailer, aircraft or sleeping car; and to enter a conveyance includes taking 

apart any portion of the conveyance.

Burglary enhancements:

With an assault.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether, in the course of 

committing the burglary, (defendant) assaulted any person. An assault is an 
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intentional and unlawful threat, either by word or act, to do violence to 

another, at a time when the defendant appeared to have the ability to carry 

out the threat and [his] [her] act created a well-founded fear in the other 

person that the violence was about to take place.

With a battery.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether, in the course of 

committing the burglary, (defendant) battered any person. A battery is an 

actual and intentional touching or striking of another person against that 

person’s will or the intentional causing of bodily harm to another person.

While armed.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether, in the course of 

committing the burglary, (defendant) was armed or armed [himself] [herself] 

within the [structure] [conveyance] with [explosives] [a dangerous weapon].

Definitions. Give as applicable. § 790.001(5), Fla. Stat. See exceptions in 

§ 790.001(5)(a)–(d), Fla. Stat.

“Explosive” means any chemical compound or mixture that has the 

property of yielding readily to combustion or oxidation upon application of 

heat, flame, or shock, including but not limited to dynamite, nitroglycerin, 

trinitrotoluene, or ammonium nitrate when combined with other ingredients 

to form an explosive mixture, blasting caps, and detonators.

A “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. It 

is not necessary for the State to prove that the defendant intended to use or 

was willing to use the weapon in furtherance of the burglary in order for a 

weapon to constitute a “dangerous weapon.” 

To “arm” oneself during the course of a burglary includes possessing a 

firearm, whether loaded with ammunition or not, at any time during the 

course of committing the burglary.

Structure or conveyance is a dwelling.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether the [structure] 

[conveyance] [entered] [remained in] was a dwelling.
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Definition. Give as applicable. 

“Dwelling” means a building [or conveyance] of any kind, whether such 

building [or conveyance] is temporary or permanent, mobile or immobile, 

which has a roof over it and is designed to be occupied by people lodging 

therein at night, together with the enclosed space of ground and outbuildings 

immediately surrounding it. For purposes of burglary, a “dwelling” includes 

an attached porch or attached garage.

Human being in structure or conveyance.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether, in the course of 

committing the burglary, there was another human being in the [structure] 

[conveyance], at the time [he] [she] [entered] [remained in] the [structure] 

[conveyance]. 

Offense intended is theft of a controlled substance.

If you find (defendant) guilty of burglary, you must also determine 

whether the State has proved beyond a reasonable doubt that the offense 

intended to be committed therein was theft of a controlled substance. 

Pursuant to Florida law, (name of controlled substance) is a controlled 

substance. A theft occurs when a person knowingly and unlawfully obtains or 

uses or endeavors to obtain or use the property of the victim and does so with 

the intent to, either temporarily or permanently, deprive the victim of his or 

her right to the property or any benefit from it or to appropriate the property 

of the victim to his or her own use or to the use of any person not entitled to it.

Traveling from county of residence into another county with intent to commit 

a burglary and with purpose to thwart law enforcement efforts to track stolen 

property. § 843.22, Fla. Stat.

If you find (defendant) guilty of [Burglary] [Attempted Burglary] 

[Solicitation to Commit Burglary] [Conspiracy to Commit Burglary], you 

must also determine whether the State proved beyond a reasonable doubt 

that:

1. (Defendant) had a county of residence within Florida; and

2. (Defendant) travelled any distance with the intent to commit a 

burglary in a county in Florida other than [his] [her] county of 

residence; and 
- 18 -

3. The purpose of (defendant’s) travel was to thwart law enforcement 

attempts to track items stolen in the burglary. 

“County of residence” means the county within this state in which a 

person resides. 

Evidence of a person’s county of residence includes, but is not limited 

to:

1. The address on a person’s driver license or state identification 

card;

2. Records of real property or mobile home ownership;

3. Records of a lease agreement for residential property;

4. The county in which a person’s motor vehicle is registered;

5. The county in which a person is enrolled in an educational 

institution; 

6. The county in which a person is employed.

Dwelling or structure with use of motor vehicle or damage.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether, in the course of 

committing the burglary, (defendant) entered a [dwelling] [structure] and

1. used a motor vehicle as an instrumentality, other than merely as a 

getaway vehicle, to assist in committing the offense, and thereby 

damaged the [dwelling] [structure].

or

2. caused damage to the [dwelling] [structure] [property within the 

[dwelling] [structure]], in excess of $1,000.

Authorized emergency vehicle.
- 19 -

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether the conveyance 

[entered] [remained in] was an authorized emergency vehicle.

Definition. See § 316.003, Fla. Stat.

An “authorized emergency vehicle” is a vehicle of the fire department 

(fire patrol), police vehicles, and such ambulances and emergency vehicles of 

municipal departments, public service corporations operated by private

corporations, the Department of Environmental Protection, the Department 

of Health, the Department of Transportation, and the Department of 

Corrections as are designated or authorized by their respective department or 

the chief of police of an incorporated city or any sheriff of a county.

State of emergency.

The definitions of structure, dwelling, and conveyance are different for 

counties where a state of emergency has been declared under chapter 252. See § 

810.011(1), (2), and (3), Fla. Stat.

If you find (defendant) guilty of burglary, you must also determine if the 

State has proved beyond a reasonable doubt whether 

1. the burglary was committed within a county that was subject to a 

state of emergency that had been declared by the governor under 

chapter 252, the “State Emergency Management Act,”

and

2. the perpetration of the burglary was facilitated by conditions 

arising from the emergency.

Definition.

The term “conditions arising from the emergency” means civil

unrest, power outages, curfews, voluntary or mandatory evacuations, or a 

reduction in the presence of or response time for first responders or homeland 

security personnel. 

§ 810.011(4), Fla. Stat.

An act is committed “in the course of committing” if it occurs in the 

attempt to commit the offense or in flight after the attempt or commission.
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Lesser Included Offenses

BURGLARY WITH ASSAULT OR BATTERY OR WHILE ARMED OR 

WITH USE OF MOTOR VEHICLE OR PROPERTY DAMAGE —

810.02(2)

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

Burglary 810.02(4) 13.1

Aggravated battery 784.045 8.4

Persons Engaged in 

Criminal Offense Having 

Firearm

790.07(2) 10.3

Battery 784.03 8.3

Aggravated assault 784.021 8.2

Persons Engaged in 

Criminal Offense Having 

Weapon

790.07(1) 10.3

Assault 784.011 8.1

Attempt 777.04(1) 5.1

Burglary 810.02(3) 13.1

Trespass 810.08(2)(a) 13.3

Trespass 810.08(2)(b) 13.3

Trespass 810.08(2)(c) 13.3

Criminal Mischief 806.13 12.4
- 21 -

BURGLARY OF DWELLING; BURGLARY OF STRUCTURE OR 

CONVEYANCE WITH HUMAN BEING INSIDE; BURGLARY OF AN 

AUTHORIZED EMERGENCY VEHICLE — 810.02(3)

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

Burglary 810.02(4) 13.1

Attempt 777.04(1) 5.1

Trespass 810.08(2)(a) 13.3

Trespass 810.08(2)(b) 13.3

Trespass 810.08(2)(c) 13.3

BURGLARY — 810.02(4)

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

None

Attempt 777.04(1) 5.1

Trespass 810.08(2)(a) 13.3

Trespass 810.08(2)(b) 13.3

Trespass 810.08(2)(c) 13.3

Criminal Mischief 806.13 12.4

Comments

When the compounded offense of burglary with an assault or burglary with a 

battery is charged and the jury convicts on the lesser included offense of trespass, 

the jury can also consider a second conviction on the lesser included offenses of 

assault or battery depending on the crime charged. See Gian-Grasso v. State, 899 

So. 2d 392 (Fla. 4th DCA 2005).

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 

1997 [697 So.2d 84], 2003 [850 So.2d 1272], 2007 [962 So. 2d 310], 2008 [986 

So. 2d 563], and 2013 [109 So. 3d 721], and 2015.
- 22 -

14.9 EXPLOITATION OF [AN ELDERLY PERSON] 

[A DISABLED ADULT]

§ 825.103, Fla. Stat. 

To prove the crime of Exploitation of [an Elderly Person] [Disabled 

Adult], the State must prove the following [three] [four] elements beyond a 

reasonable doubt:

Give as applicable. 

Fla. Stat. § 825.103(1)(a), Fla. Stat.

1. (Victim) was [an elderly person] [a disabled adult]. 

2. (Defendant) knowingly used deception or intimidation to [obtained

or used] [endeavored to obtain or use] (victim’s) [funds] [assets] 

[property].

3. (Defendant) did so with the intent to

Give as applicable.

a. temporarily or permanently deprive (victim) of the use, 

benefit, or possession of [his] [her] [funds] [assets] 

[property];

b. benefit someone other than (victim).

4. At the time, (defendant) [stood in a position of trust and 

confidence] [had a business relationship] with (victim).

Fla. Stat. § 825.103(1)(b), Fla. Stat.

1. (Victim) was [an elderly person] [a disabled adult]. 

2. (Defendant) [obtained or used] [endeavored to obtain or use] 

[conspired with another to obtain or use] (victim’s) [funds] 

[assets] [property].

3. (Defendant) did so with the intent to 

Give as applicable.
- 23 -

a. temporarily or permanently deprive (victim) of the use, 

benefit, or possession of [his] [her] [funds] [assets] 

[property];

b. benefit someone other than (victim).

4. At the time, (defendant) knew or reasonably should have known 

that (victim) lacked the capacity to consent.

Fla. Stat. § 825.103(1)(c), Fla. Stat.

1. (Victim) was [an elderly person] [a disabled adult]. 

2. (Defendant) was (victim’s) [guardian] [trustee] [agent under a 

power of attorney].

3. (Defendant) breached a fiduciary duty to (victim).

4. As a result, there was an unauthorized [appropriation] [sale] 

[transfer] of (victim’s) property. 

If § 825.103(1)(c), Fla. Stat. is charged, give as applicable.

A “trustee” must be an individual.

An “unauthorized appropriation” occurs when 

a. the [elderly person] [disabled adult] does not receive the 

reasonably equivalent financial value in goods or services; or 

b. the fiduciary, appointed as an agent under power of attorney to 

act on behalf of (victim),

i. commits fraud in obtaining [his] [her] appointment; or

ii. abuses [his] [her] powers; or

iii. [wastes] [embezzles] [intentionally mismanages] the assets 

of the [principal] [beneficiary]; or

iv. acts contrary to the principal’s sole [benefit] [best interest].

c. the fiduciary, appointed as a [guardian] [trustee] for (victim),
- 24 -

i. commits fraud in obtaining [his] [her] appointment; or

ii. abuses [his] [her] powers; or 

iii. [wastes] [embezzles] [intentionally mismanages] the assets 

of the [ward] [beneficiary of the trust].

§ 825.103(1)(d), Fla. Stat.

1. (Victim) was [an elderly person] [a disabled adult].

2. (Defendant) [misappropriated] [misused] [transferred without 

authorization] money belonging to (victim) from a [personal 

account] [joint account created with the intent that only (victim) 

enjoyed all rights, interests, and claims to moneys deposited in 

such account] [convenience account].

3. (Victim) placed the funds, owned the funds, and was the sole 

[contributor] [payee] of the funds before the [misappropriation] 

[misuse] [unauthorized transfer].

§ 825.103(1)(e), Fla. Stat.

1. (Victim) was [an elderly person] [a disabled adult].

2. (Defendant) [intentionally] [negligently] failed to effectively use 

(victim’s) income and assets for the necessities required for 

(victim’s) support and maintenance. 

3. At the time, (defendant) was a [caregiver] [person who stood in a 

position of trust and confidence] with (victim).

Give if applicable. Note: The statutory inference does not apply to persons 

in the business of making loans or to bona fide charitable donations to nonprofit 

organizations that qualify for tax exempt status under the Internal Revenue Code. 

§ 825.103(2)(b), Fla. Stat. 

You may, but are not required to, draw an inference of exploitation of 

(victim), if you find the State has proved beyond a reasonable doubt that: 

a. (Victim) was 65 years or older;
- 25 -

b. (Defendant) was a nonrelative of (victim);

c. (Victim), while still alive, transferred [money] [property] valued in 

excess of $10,000 in [a single transaction] [multiple transactions] 

to (defendant);

d. (Victim) knew (defendant) for fewer than 2 years before the first 

transfer; and 

e. (Victim) did not receive the reasonably equivalent financial value 

in [goods] [services].

You may not draw an inference of exploitation of (victim) if the transfer 

involved a valid loan, in writing, with definite repayment dates. However, you

may draw an inference of exploitation of (victim), even if the transfer involved 

a valid loan, in writing, with definite repayment dates, if the repayment of the 

loan was in default, in whole or in part, for more than 65 days. 

If the transfer had no definite repayment dates in writing, you may 

draw an inference of exploitation of (victim) regardless of whether the transfer 

was denoted by the parties as a gift or a loan. 

Give as applicable.

If you find (defendant) guilty of Exploitation of [an Elderly Person] [a 

Disabled Adult], you must then determine whether the State has proven 

beyond a reasonable doubt that:

a. the [funds] [assets] [property] involved in the exploitation of the 

[elderly person] [disabled adult] [is] [are] valued at 

$100,000$50,000 or more;

b. the [funds] [assets] [property] involved in the exploitation of the 

[elderly person] [disabled adult] [is] [are] valued at 

$20,000$10,000 or more, but less than $100,000 $50,000; 

c. the [funds] [assets] [property] involved in the exploitation of the 

[elderly person] [disabled adult] [is] [are] valued at less than 

$20,000$10,000. 
- 26 -

Definitions. Give as applicable. 

Fla. Stat. § 825.101(1), Fla. Stat.

“Business relationship” means a relationship between two or more 

individuals or entities where there exists an oral or written contract or 

agreement for goods or services.

Fla. Stat. § 825.101(3).

“Deception” means:

a. Misrepresenting or concealing a material fact relating to:

1. Services rendered, disposition of property, or use of 

property, when such services or property are intended to 

benefit [an elderly person] [disabled adult];

2. Terms of a contract or agreement entered into with [an 

elderly person] [disabled adult]; or

3. An existing or preexisting condition of any property 

involved in a contract or agreement entered into with [an 

elderly person] [disabled adult]; or

b. Using any misrepresentation, false pretense, or false promise in 

order to induce, encourage, or solicit [an elderly person[ [disabled 

adult] to enter into a contract or agreement.

Fla. Stat. § 825.101(43), Fla. Stat.

“Disabled adult” means a person 18 years of age or older who suffers 

from a condition of physical or mental incapacitation due to a developmental 

disability, organic brain damage, or mental illness, or who has one or more 

physical or mental limitations that restrict the person's ability to perform the 

normal activities of daily living.

Fla. Stat. § 825.101(54), Fla. Stat. 

“Elderly person” means a person 60 years of age or older who is 

suffering from the infirmities of aging as manifested by advanced age or 

organic brain damage, or other physical, mental, or emotional dysfunctioning, 

to the extent that the ability of the person to provide adequately for the 

person's own care or protection is impaired.

Fla. Stat. § 825.101(65), Fla. Stat.

“Endeavor” means to attempt or try.
- 27 -

Fla. Stat. § 825.101(8).

“Intimidation” means the communication by word or act to [an elderly 

person] [disabled adult] that the [elderly person] [disabled adult] will be 

deprived of food, nutrition, clothing, shelter, supervision, medicine, medical 

services, money, or financial support or will suffer physical violence.

Fla. Stat. § 825.101(97), Fla. Stat.

“Lacks capacity to consent” means an impairment by reason of mental 

illness, developmental disability, organic brain disorder, physical illness or 

disability, chronic use of drugs, chronic intoxication, short-term memory loss, 

or other cause, that causes [an elderly person] [disabled adult] to lack 

sufficient understanding or capacity to make or communicate reasonable 

decisions concerning the [elderly person's] [disabled adult's] person or 

property.

Fla. Stat. § 825.101(108), Fla. Stat.

“Obtains or uses” means any manner of:

a. Taking or exercising control over property; or

b. Making any use, disposition, or transfer of property.

Fla. Stat. § 825.101(119), Fla. Stat.

“Position of trust and confidence” with respect to [an elderly person] [a 

disabled adult] means the position of a person who:

a. Is a parent, spouse, adult child, or other relative by blood or 

marriage of the [elderly person] [disabled adult];

b. Is a joint tenant or tenant in common with the [elderly person] 

[disabled adult];

c. Has a legal or fiduciary relationship with the [elderly person] 

[disabled adult], including, but not limited to, a court-appointed 

or voluntary guardian, trustee, attorney, or conservator;

d. Is a caregiver of the [elderly person] [disabled adult]. 

e. Is any other person who has been entrusted with or has assumed 

responsibility for the use or management of the [elderly person's] 

[disabled adult's] [funds] [assets] [property].
- 28 -

Fla. Stat. § 825.101(2), Fla. Stat.

“Caregiver” means a person who has been entrusted with or has 

assumed responsibility for the care or the property of [an elderly person] 

[disabled adult]. “Caregiver” includes, but is not limited to, relatives, courtappointed or voluntary guardians, adult household members, neighbors, 

health care providers, and employees and volunteers of facilities. 

Fla. Stat. § 825.101(76), Fla. Stat.

“Facility” means any location providing day or residential care or 

treatment for elderly persons or disabled adults. The term “facility” may 

include, but is not limited to, any hospital, training center, state institution, 

nursing home, assisted living facility, adult family-care home, adult day care 

center, group home, mental health treatment center, or continuing care 

community.

Fla. Stat. § 825.101(1210), Fla. Stat.

“Property” means anything of value and includes:

a. Real property, including things growing on, affixed to, and found 

in land.

b. Tangible or intangible personal property, including rights, 

privileges, interests, and claims.

c. Services.

Fla. Stat. § 825.101(1311), Fla. Stat. 

“Services” means anything of value resulting from a person's physical 

or mental labor or skill, or from the use, possession, or presence of property, 

and includes:

a. Repairs or improvements to property.

b. Professional services.

c. Private, public, or governmental communication, transportation, 

power, water, or sanitation services.

d. Lodging accommodations.
- 29 -

e. Admissions to places of exhibition or entertainment.

Fla. Stat. § 825.101(1412), Fla. Stat.

“Value” means value determined according to any of the following:

1. The market value of the property at the time and place of the 

offense or, if the market value cannot be satisfactorily 

ascertained, the cost of replacing the property within a reasonable 

time after the offense.

2. In the case of a written instrument such as a check, draft, or 

promissory note, which does not have a readily ascertainable 

market value, the value is the amount due or collectible. The value 

of any other instrument that creates, releases, discharges, or 

otherwise affects any valuable legal right, privilege, or obligation 

is the greatest amount of economic loss that the owner of the 

instrument might reasonably suffer by the loss of the instrument.

3. The value of a trade secret that does not have a readily 

ascertainable market value is any reasonable value representing 

the damage to the owner suffered by reason of losing advantage 

over those who do not know of or use the trade secret.

Fla. Stat. § 825.101(1412)(b), Fla. Stat.

If the value of the property cannot be ascertained, the trier of fact jury 

may find the value to be not less than a certain amount; if no such minimum 

value can be ascertained, the value is an amount less than $100.

Fla. Stat. § 825.101(1412)(c), Fla. Stat.

Amounts of value of separate properties involved in exploitation 

committed pursuant to one scheme or course of conduct, whether the 

exploitation involves the same person or several persons, may be aggregated 

in determining the degree of the offensetotal value of the [funds] [assets] 

[property] involved in the exploitation.

§ 655.80, Fla. Stat.

“Convenience Account” is a deposit account, other than a certificate of 

deposit, in the name of one individual (principal), in which one or more other 

individuals have been designated as agents with the right to make deposits to 

and to withdraw funds from or draw checks on such account. The designation 
- 30 -

of agents, the substitution or removal of agents, or any other change in the 

contractual terms or provisions governing a convenience account may be 

made only by the principal. All rights, interests, and claims in, to, and in 

respect of, such deposits and convenience account and the additions thereto 

shall be those of the principal only.

Lesser Included Offense

EXPLOITATION OF [AN ELDERLY PERSON] 

[A DISABLED ADULT] — 825.103

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

Petit theft – second 

degree, if 

§ 825.103(1)(a) or (b) is 

charged

812.014(3)(a) 14.1

Grand Theft, if 

§ 825.103(1)(a) or (b) is 

charged

812.014(2)(a)1. 14.1

Grand Theft, if 

§ 825.103(1)(a) or (b) is 

charged

812.014(2)(b)1. 14.1

Grand Theft, if 

§ 825.103(1)(a) or (b) is 

charged

812.014(2)(c) 14.1

Petit Theft, if 

§ 825.103(1)(a) or (b) is 

charged 

812.014(2)(e) 14.1

Comment

This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2015.

20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATION

INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR 

OLDER]

§ 817.568(6), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification 

Information of a [Minor] [Person 60 Years of Age or Older], the State must 

prove the following three elements beyond a reasonable doubt:
- 31 -

1. (Defendant) willfully and without authorization fraudulently used 

personal identification information concerning (victim).

2. (Victim) was less [younger than 18 years of age] [60 years of age 

or older].

3. (Defendant) did so without first obtaining the consent of (victim)

[or [his] [her] legal guardian].

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth 

or perpetrating a deception.

§ 817.568(1)(b), Fla. Stat.

Authorization” means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

“Personal identification information” means any name or number that 

may be used, alone or in conjunction with any other information, to identify a 

specific individual, including any name, postal or electronic mail address, 

telephone number, social security number, date of birth, mother’s maiden 

name, official state or United States issued driver’s license or identification 

number, alien registration number, government passport number, employer 

or taxpayer’s identification number, Medicaid or food stamp account number, 

bank account number, credit or debit card number or personal identification 

number or code assigned to the holder of a debit card by the issuer to permit 

authorized use of such card, unique biometric data such as fingerprint, voice 

print, retina or iris image, or other unique physical representation, unique 

electronic identification number, address, or routing code, medical record, 

telecommunication identifying information or access device, or other number 

or information that can be used to access a person’s financial resources. 

Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat., 

which if alleged will require an interrogatory.
- 32 -

Lesser Included Offenses

FRAUDULENT USE OF PERSONAL IDENTIFICATION 

INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR 

OLDER] – 817.568(6)

CATEGORY ONE CATEGORY 

TWO

FLA. STAT. INS. NO.

None *Fraudulent 

Use of Personal 

Identification 

Information 

 817.568(2)(a) 20.13

Attempt 777.04(1) 5.1

Comments

*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully 

and without authorization fraudulently using the victim’s personal identification 

information is a necessary lesser included offense of this crime. However, the part 

of § 817.568(2)(a), Fla. Stat. that covers the defendant possessing personal 

identification information with intent to fraudulently use is not.

There are two possible enhanced penalties for this crime. See § 817.568(5) 

and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a 

special instruction would be necessary in order for the jury to make the appropriate 

finding.

This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015.

20.16 FRAUDULENT USE OF PERSONAL IDENTIFICATION

INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR 

OLDER] BY A PARENT, OR GUARDIAN, OR PERSON WHO 

EXERCISED CUSTODIAL AUTHORITY

§ 817.568(7), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification 

Information of a [Minor] [Person 60 Years of Age or Older] by a [Parent] 

[Guardian] [or] [Person who Exercised Custodial Authority], the State must 

prove the following three elements beyond a reasonable doubt:
- 33 -

1. (Defendant) willfully and fraudulently used personal identification 

information concerning (victim).

2. (Victim) was less [younger than 18 years of age] [60 years of age 

or older].

3. (Defendant) was [the parent of] [the legal guardian of] [exercised 

custodial authority over] (victim) at the time.

Definitions. 

“Willfully” means intentionally, knowingly, and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth 

or perpetrating a deception.

§ 817.568(1)(f), Fla. Stat.

“Personal identification information” means any name or number that 

may be used, alone or in conjunction with any other information, to identify a 

specific individual, including any name, postal or electronic mail address, 

telephone number, social security number, date of birth, mother’s maiden 

name, official state or United States issued driver’s license or identification 

number, alien registration number, government passport number, employer 

or taxpayer’s identification number, Medicaid or food stamp account number, 

bank account number, credit or debit card number or personal identification 

number or code assigned to the holder of a debit card by the issuer to permit 

authorized use of such card, unique biometric data such as fingerprint, voice 

print, retina or iris image, or other unique physical representation, unique 

electronic identification number, address, or routing code, medical record, 

telecommunication identifying information or access device, or other number 

or information that can be used to access a person’s financial resources.

Enhanced penalty. Give if applicable. See § 817.568 (5) and (10), Fla. Stat., 

which if alleged will require an interrogatory.
- 34 -

Lesser Included Offenses

FRAUDULENT USE OF PERSONAL IDENTIFICATION 

INFORMATION OF A [MINOR] [PERSON 60 YEARS OF AGE OR 

OLDER] BY A [PARENT] [GUARDIAN] [PERSON WHO EXERCISED 

CUSTODIAL AUTHORITY] — 817.568(7)

CATEGORY ONE CATEGORY 

TWO

FLA. STAT. INS. NO.

None

Fraudulent Use of 

Personal 

Identification 

Information

817.568(2)(a) 20.13

Attempt 777.04(1) 5.1

Comments

There are two possible enhanced penalties for this crime. See § 817.568(5) 

and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a 

special instruction would be necessary in order for the jury to make the appropriate 

finding.

This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2015.

20.21 FRAUDULENT USE OF PERSONAL IDENTIFICATION

INFORMATION OF A [DISABLED ADULT]

[PUBLIC SERVANT] [VETERAN] [FIRST RESPONDER]

[STATE EMPLOYEE] [FEDERAL EMPLOYEE]

§ 817.568(11), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification 

Information of a [Disabled Adult] [Public Servant] [Veteran] [First 

Responder] [State Employee] [Federal Employee], the State must prove the 

following three elements beyond a reasonable doubt:

1. (Defendant) willfully and without authorization fraudulently used 

personal identification information concerning (victim).

2. (Victim) was [a disabled adult] [a public servant] [a veteran] [a 

first responder] [a state employee] [a federal employee].
- 35 -

3. (Defendant) did so without first obtaining consent of (victim).

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth 

or perpetrating a deception.

§ 817.568(1)(b), Fla. Stat.

“Authorization” means empowerment, permission, or competence to act.

§ 817.568(1)(f), Fla. Stat.

“Personal identification information” means any name or number that 

may be used, alone or in conjunction with any other information, to identify a 

specific individual, including any name, postal or electronic mail address, 

telephone number, social security number, date of birth, mother’s maiden 

name, official state or United States issued driver’s license or identification 

number, alien registration number, government passport number, employer 

or taxpayer’s identification number, Medicaid or food stamp account number, 

bank account number, credit or debit card number or personal identification 

number or code assigned to the holder of a debit card by the issuer to permit 

authorized use of such card, unique biometric data such as fingerprint, voice 

print, retina or iris image, or other unique physical representation, unique 

electronic identification number, address, or routing code, medical record, 

telecommunication identifying information or access device, or other number 

or information that can be used to access a person’s financial resources. 

Give as applicable.

§ 825.101(3), Fla. Stat.

“Disabled adult” means a person 18 years of age or older who suffers 

from a condition of physical or mental incapacitation due to a developmental 

disability, organic brain damage, or mental illness, or who has one or more 

physical or mental limitations that restrict the person’s ability to perform the 

normal activities of daily living.

§ 838.014(6), Fla. Stat.

“Public servant” means (a) Any officer or employee of a state, county, 

municipal, or special district agency or entity; (b) Any legislative or judicial 

officer or employee; (c) Any person, except a witness, who acts as a general or 

special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, 
- 36 -

or hearing officer while performing a governmental function; or (d) A 

candidate for election or appointment to any of the positions listed in this 

subsection, or an individual who has been elected to, but has yet to officially 

assume the responsibilities of, public office.

§ 1.01(14), Fla. Stat.

“Veteran” means a person who served in the active military, naval, or 

air service and who was discharged or released under honorable conditions 

only or who later received an upgraded discharge under honorable conditions, 

notwithstanding any action by the United States Department of Veterans 

Affairs on individuals discharged or released with other than honorable 

discharges. 

§ 125.01045(2), Fla. Stat.

“First responder” means a law enforcement officer, a firefighter, or an 

emergency medical technician or paramedic who is employed by the state or a 

local government. [A volunteer law enforcement officer, firefighter, or 

emergency medical technician or paramedic engaged by the state or a local 

government is also considered a first responder of the state or local 

government for purposes of this section.]

§ 943.10(10), Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, 

or employed full time by any municipality or the state or any political 

subdivision thereof; who is vested with authority to bear arms and make 

arrests; and whose primary responsibility is the prevention and detection of 

crime or the enforcement of the penal, criminal, traffic, or highway laws of 

the state. This definition includes all certified supervisory and command 

personnel whose duties include, in whole or in part, the supervision, training, 

guidance, and management responsibilities of full-time law enforcement 

officers, part-time law enforcement officers, or auxiliary law enforcement 

officers but does not include support personnel employed by the employing 

agency.

§ 633.102(9), Fla. Stat.

“Firefighter” means an individual who holds a current and valid 

Firefighter Certificate of Compliance or Special Certificate of Compliance 

issued by the Division of State Fire Marshal within the Department of 

Financial Services.
- 37 -

§ 401.23(17), Fla. Stat.

“Paramedic” means a person who is certified by the Department of 

Health to perform basic and advanced life support.

Lesser Included Offenses

FRAUDULENT USE OF PERSONAL IDENTIFICATION 

INFORMATION OF A [DISABLED ADULT] [PUBLIC SERVANT] 

[VETERAN] [FIRST RESPONDER] [STATE EMPLOYEE] [FEDERAL 

EMPLPOYEE] – 817.568(11)

CATEGORY ONE CATEGORY 

TWO

FLA. STAT. INS. NO.

*Fraudulent Use of 

Personal 

Identification 

Information

817.568(2)(a) 20.13

Attempt 777.04(1) 5.1

Comments

*The part of § 817.568(2)(a), Fla. Stat., that covers the defendant willfully 

and without authorization fraudulently using the victim’s personal identification 

information is a necessary lesser included offense of this crime. However, the part 

of § 817.568(2)(a), Fla. Stat., that covers the defendant possessing personal 

identification information with intent to fraudulently use is not.

Both § 817.568(6), Fla. Stat., and § 817.568(11), Fla. Stat., criminalize 

Fraudulent Use of Personal Identification Information of a Person 60 Years of Age 

or Older. While both are second degree felonies, § 817.568(6), Fla. Stat., is listed 

in level 8 and § 817.568(11), Fla. Stat., is unlisted, which would make it a level 4, 

according to § 921.0023, Fla. Stat. If the State alleges that the defendant violated 

§ 817.568(11), Fla. Stat., and that the victim was 60 years of age or older, the trial 

judge should instruct using the appropriate parts of Instruction 20.15.

There are two possible enhanced penalties for this crime. See § 817.568(5) 

and § 817.568(10), Fla. Stat. If one of these enhanced penalties is charged, a 

special instruction would be necessary in order for the jury to make the appropriate 

finding.

This instruction was adopted in 2015.
- 38 -

22.5 SETTING UP, PROMOTING, CONDUCTING A LOTTERY

§ 849.09(1)(a), Fla. Stat.

To prove the crime of [Setting Up] [Promoting] [Conducting] a Lottery],

the State must prove beyond a reasonable doubt that:

(Defendant) [set up] [promoted] [conducted] a lottery for [money] 

[anything of value].

Definitions. 

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

If there is evidence of an exception referred to at the end of § 849.09(1), Fla. 

Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat., or in 

§ 849.161, Fla. Stat., an appropriate instruction should be given. 
- 39 -

Lesser Included Offenses

LOTTERY — 849.09(1)(a)

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

None

Lottery 849.09(1)(f)

Lottery 849.09(1)(g) 22.9

Lottery 849.09(1)(h) 22.10

Lottery 849.09(1)(i)

Lottery 849.09(1)(j)

Lottery 849.09(1)(k) 22.11

Playing at game of 

chance by lot

849.11

Gambling devices, etc. 849.231

Attempt 777.04 5.1

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939)(holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2014 [143 So. 3d 893] 

and 2015.

22.6 DISPOSING OF [MONEY], [PROPERTY] BY LOTTERY

§ 849.09(1)(b), Fla._Stat.

To prove the crime of Disposing of [Money] [Property] by Lottery, the 

State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) disposed of [money] [property].
- 40 -

2. The [money] [property] was disposed of by means of a lottery.

Definitions.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

It is not enough to show that the defendant merely sold lottery tickets or 

participated in the collection of ticket proceeds or the keeping of records, or 

participated in determining the winners.

For conviction it must be proved that the defendant had an interest in 

or control of the [money] [property] and [he] [she] caused it to be disposed of 

by a lottery conducted under [his] [her] authority, direction, or supervision. It 

is not necessary, however, that the State prove that the defendant performed 

all the acts incident to the lottery.
- 41 -

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

LOTTERY — 849.09(1)(b)

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

None

Lottery 849.09(1)(f)

Lottery 849.09(1)(g) 22.9

Lottery 849.09(1)(h) 22.10

Lottery 849.09(1)(i)

Lottery 849.09(1)(j)

Lottery 849.09(1)(k) 22.11

Gambling devices, etc. 849.231

Attempt 777.04 5.1

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.

22.7 [CONDUCTING] [ADVERTISING] A LOTTERY DRAWING

§ 849.09(1)(c), Fla._Stat.

To prove the crime of [Conducting] [Advertising] a Lottery Drawing, 

the State must prove the following two elements beyond a reasonable doubt:
- 42 -

Give a and/or b as applicable. 

1a. There was a lottery. (Defendant) conducted a lottery drawing.

2b. (Defendant) conducted a drawing for the lottery advertised a 

lottery drawing [in a newspaper] [or] [by [a circular] [a poster] [a 

pamphlet] [radio] [telegraph] [telephone] [or otherwise]]. 

Definitions.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

A "lottery drawing" is the selection of the winner by chance.

It is not essential for conviction that the defendant had any other 

interest or participation in the lottery.
- 43 -

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

LOTTERY — 849.09(1)(c)

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

None

Lottery 849.09(1)(f)

Lottery 849.09(1)(g) 22.9

Lottery 849.09(1)(h) 22.10

Lottery 849.09(1)(i)

Lottery 849.09(1)(j)

Lottery 849.09(1)(k) 22.11

Gambling devices, etc. 849.231

Attempt 777.04 5.1

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.
- 44 -

22.8 ASSISTING IN SETTING UP, PROMOTING, OR CONDUCTING A 

LOTTERY

§ 849.09(1)(d), Fla._Stat.

To prove the crime of Assisting in Setting up, Promoting, or Conducting 

a Lottery, the State must prove the following two elements beyond a reasonable 

doubt:

1. There was a lottery set up, promoted, or conducted.

Give 2a or 2b as applicable.

2. a. [(Defendant) aided or assisted in setting up, promoting, or 

 conducting the lottery by (read from charge)].

b. [(Defendant) was interested in or connected with the lottery 

by (read from charge)].

Definitions.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 
- 45 -

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

LOTTERY — 849.09(1)(d)

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

None

Lottery 849.09(1)(f)

Lottery 849.09(1)(g) 22.9

Lottery 849.09(1)(h) 22.10

Lottery 849.09(1)(i)

Lottery 849.09(1)(j)

Lottery 849.09(1)(k) 22.11

Playing at game of 

chance by lot

849.11

Gambling devices, etc. 849.231

Attempt 777.04 5.1

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939)(holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.
- 46 -

22.9 [SELLINGSALE OF LOTTERY TICKETS] [OFFERING LOTTERY 

TICKETS FOR SALE] [TRANSMITTING LOTTERY TICKETS]

§ 849.09(1)(g), Fla._Stat.

To prove the crime of [SellingSale of Lottery Tickets] [Offering Lottery 

Tickets for Sale] [Transmitting Lottery Tickets], the State must prove the 

following element beyond a reasonable doubt that the defendant:

(Defendant) [sold] [offered for sale] [sent from one place to another

transmitted, in person or by mail or by hand of another person or in 

some other way] a lottery ticket, coupon or share, or fractional part of a 

lottery ticket, coupon or share, representing an interest in a live lottery 

yet to be played or in a lottery that has already been played.

Definitions.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.
- 47 -

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

A “lottery ticket, coupon, or share” is any paper, token, or thing that 

represents the right of the possessor to receive all or any part of a prize 

awarded or to be awarded in the operation of a lottery. It is not necessary that 

the rights of the holder be written or printed in plain language. It is sufficient 

if the ticket, coupon, share, or token, by any manner known to those familiar 

with a particular lottery being played, indicates or represents the rights of its 

owner or possessor.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.

22.10 POSSESSING A LOTTERY TICKET

§ 849.09(1)(h), Fla._Stat.

To prove the crime of Possessing a Lottery Ticket, the State must prove 

beyond a reasonable doubt that:

(Defendant) had in [his] [her] possession a lottery ticket or a coupon, 

share, or token evidencing some interest in a live lottery yet to be played or in 

a lottery that has already been played.
- 48 -

Definitions.

Lottery.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

Lottery ticket, coupon, or share.

A “lottery ticket, coupon, or share” is any paper, token, or thing that 

represents the right of the possessor to receive all or any part of a prize

awarded or to be awarded in the operation of a lottery. It is not necessary that 

the rights of the holder be written or printed in plain language. It is sufficient 

if the ticket, coupon, share, or token by any manner known to those familiar 

with a particular lottery being played indicates or represents the rights of its 

owner or possessor.

Possession

To "possess" means to have personal charge of or exercise the right of 

ownership, management, or control over the thing possessed.
- 49 -

Possession may be actual or constructive. If a thing is in the hand of, or 

on the person, or in a bag or container in the hand of or on the person, or is so 

close as to be within ready reach and is under the control of the person, it is in 

the actual possession of that person.

If a thing is in a place over which the person has control or in which the 

person has hidden or concealed it, it is in the constructive possession of that 

person.

Possession may be joint, that is, two or more persons may jointly have 

possession of an article, exercising control over it. In that case, each of those 

persons is considered to be in possession of that article.

If a person has exclusive possession of a thing, knowledge of its presence 

may be inferred or assumed.

If a person does not have exclusive possession of a thing, knowledge of its 

presence may not be inferred or assumed.

Possession.

There are two types of possession: actual possession and constructive 

possession.

Actual possession. 

Actual possession means the person is aware of the presence of the 

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 person, 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 an object is not sufficient to establish control over 

that object when the object is in a place that the person does not control.
- 50 -

Give if applicable.

In order to establish constructive possession of an object that was in a 

place (defendant) did 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 itself.

Joint 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. 1st DCA 2012); 

Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011). 

If you find that (defendant):

a. had direct physical custody of the [lottery ticket] [coupon, share, 

or token evidencing some interest in a lottery] or

b. was within ready reach of the [lottery ticket] [coupon, share, or 

token evidencing some interest in a lottery] and the [lottery ticket] 

[coupon, share, or token evidencing some interest in a lottery] was 

under [his] [her] control, or

c. had exclusive control of the place where the [lottery ticket] 

[coupon, share, or token evidencing some interest in a lottery] was 

located,

you may infer that [he] [she] was aware of the presence of the [lottery 

ticket] [coupon, share, or token evidencing some interest in a lottery] and had 

the ability to control [it] [them]. 

If (defendant) did not have exclusive control over the place where the 

[lottery ticket] [coupon, share, or token evidencing some interest in a lottery] 

was located, you may not infer [he] [[she] had knowledge of the presence of 

the [lottery ticket] [coupon, share, or token evidencing some interest in a 

lottery] or the ability to control [it] [them], in the absence of other 

incriminating evidence. 
- 51 -

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

However, you may infer that (defendant) knew of the presence of the 

[lottery ticket] [coupon, share, or token evidencing some interest in a lottery]

and had the ability to control [it] [them] if [he] [she] had joint control over the 

place where the [lottery ticket] [coupon, share, or token evidencing some 

interest in a lottery] was located, and the [lottery ticket] [coupon, share, or 

token evidencing some interest in a lottery] was located in a common area in 

plain view and in the presence of the defendant. 

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.

22.11 POSSESSING RUNDOWN SHEETS, ETC.

§ 849.09(1)(k), Fla._Stat.

To prove the crime of Possessing (read from charge) [Run Down Sheets] 

[Tally Sheets] [or] [Other Papers, Records, Instruments, or Paraphernalia], the 

State must prove the following two elements beyond a reasonable doubt:
- 52 -

1. (Defendant) had in [his] [her] possession (read from charge) [Run 

Down Sheets] [Tally Sheets] [or] [Other Papers, Records, 

Instruments, or Paraphernalia].

2. These articles were designed for use, directly or indirectly, in 

gambling or in the conduct of a lottery.

Definitions.

Gambling.

“Gambling” is a game of chance in which the participant risks money or 

property on the outcome with the expectation of gaining or losing as a result of 

the game.

Lottery.

Little River Theatre Corp. v. State, 185 So. 855 (Fla. 1939).

A “lottery” has three elements: is a game of chance in which smaller 

sums of money or things of smaller value are risked for the chance of getting 

money or property of greater value upon the happening of an uncertain event. 

The three elements of a lottery are: (1) consideration — that is, a bet or thing 

ventured; (2) a prize; and (3) the award or winning of the prize by lot or 

chance.

A “bet” is when money or other property is risked, pledged, wagered, or 

staked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result. 

A “thing ventured” is when something other than money or property is 

risked by a participant on the outcome of a game, contest, or uncertain or 

contingent event, with the expectation of gaining or losing as a result, which 

includes but is not limited to the time, inconvenience, and effort required to 

attend or participate, at the expense of foregone alternatives and other 

opportunities.

A “prize by lot or chance” is when the award or winning prize is 

determined by a chance or uncertain or contingent event, the outcome of 

which is not influenced or controlled by a participant’s skill, such as by 

drawing numbers, entries, cards, or by rolling dice.

Possession
- 53 -

To "possess" means to have personal charge of or exercise the right of 

ownership, management, or control over the thing possessed.

Possession may be actual or constructive. If a thing is in the hand of or 

on the person, or in a bag or container in the hand of or on the person, or is so 

close as to be within ready reach and is under the control of the person, it is in 

the actual possession of that person.

If a thing is in a place over which the person has control or in which the 

person has hidden or concealed it, it is in the constructive possession of that 

person.

Possession may be joint, that is, two or more persons may jointly have 

possession of an article, exercising control over it. In that case, each of those 

persons is considered to be in possession of that article.

If a person has exclusive possession of a thing, knowledge of its presence 

may be inferred or assumed.

If a person does not have exclusive possession of a thing, knowledge of its 

presence may not be inferred or assumed.

Possession.

There are two types of possession: actual possession and constructive 

possession.

Actual possession. 

Actual possession means the person is aware of the presence of the 

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 person, 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. 
- 54 -

Give if applicable.

Mere proximity to an object is not sufficient to establish control over 

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

Give if applicable.

In order to establish constructive possession of an object that was in a 

place (defendant) did 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 itself.

Joint 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. 1st DCA 2012); 

Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011). 

If you find that (defendant):

a. had direct physical custody of the [run down sheets] [tally sheets] [or] 

[other papers, records, instruments, or paraphernalia], or

b. was within ready reach of the [run down sheets] [tally sheets] [or] [other

papers, records, instruments, or paraphernalia] and the [run down

sheets] [tally sheets] [or] [other papers, records, instruments, or

paraphernalia] were under [his] [her] control, or

c. had exclusive control of the place where the [run down sheets] [tally

sheets] [or] [other papers, records, instruments, or paraphernalia] were

located, 

you may infer that [he] [she] was aware of the presence of the [run down 

sheets] [tally sheets] [or] [other papers, records, instruments, or 

paraphernalia] and had the ability to control them. 

If (defendant) did not have exclusive control over the place where the 

[run down sheets] [tally sheets] [or] [other papers, records, instruments, or 

paraphernalia] were located, you may not infer [he] [[she] had knowledge of 
- 55 -

the presence of the [run down sheets] [tally sheets] [or] [other papers, records, 

instruments, or paraphernalia] or the ability to control them, in the absence of 

other incriminating evidence. 

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

However, you may infer that (defendant) knew of the presence of the[run 

down sheets] [tally sheets] [or] [other papers, records, instruments, or 

paraphernalia]] and had the ability to control them if [he] [she] had joint 

control over the place where the [run down sheets] [tally sheets] [or] [other 

papers, records, instruments, or paraphernalia] were located, and the [run 

down sheets] [tally sheets] [or] [other papers, records, instruments, or 

paraphernalia] were located in a common area in plain view and in the 

presence of the defendant. 

If there is evidence of an exception referred to at the end of § 849.09(1),

Fla._Stat., in § 849.092, Fla. Stat., § 849.0931, Fla. Stat., or § 849.0935, Fla. 

Stat., or in § 849.161, Fla. Stat., an appropriate instruction should be given.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

See Blackburn v. Ippolito, 156 So. 2d 550, 553 (Fla. 2d DCA 1963)

(“[T]hings other than money can constitute a sufficient consideration, moving from 

the participants in such scheme to the operators without any cash outlay being 

made.”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 184 So. 886 (Fla. 

1938) (“The consideration required to support a simple contract need not be money 

or anything having a monetary value, but any consist of either a benefit to the 

promisor or a detriment to the promisee.”) and Little River Theatre Corp. v. State, 

185 So. 855 (Fla. 1939) (holding that increased attendance and receipts at a theater 

offering a “bank night” drawing satisfied the element of consideration, even 

though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2015.
- 56 -

23.8 SELLING A MINOR INTO PROSTITUTION BY A [PARENT] 

[LEGAL GUARDIAN] [PERSON WITH CONTROL OF THE MINOR] 

§ 796.035, Fla. Stat.

To prove the crime of Selling a Minor Into Prostitution By a [Parent] 

[Legal Guardian] [Person With Control of the Minor], the State must prove 

the following four elements beyond a reasonable doubt:

1. (Defendant) [was a [parent] [legal guardian]] [had custody or 

control] of (victim).

2. (Defendant) [sold or otherwise transferred custody or control of 

(victim)] [offered to sell or offered to otherwise transfer custody of 

(victim)].

3. (Defendant) did so [knowing] [in reckless disregard of the fact] 

that as a consequence of the [sale] [transfer], (victim) will engage 

in prostitution.

4. At the time, (victim) was under the age of 18 years.

Definition.

“Prostitution” is the giving or receiving of the body for sexual activity 

for hire but excludes sexual activity between spouses.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2013.

29.24 HUMAN TRAFFICKING 

§ 787.06(3), Fla. Stat.

To prove the crime of Human Trafficking, the State must prove the 

following two elements beyond a reasonable doubt:
- 57 -

1. (Defendant) knowingly, or in reckless disregard of the facts,

[engaged in] [attempted to engage in] [benefited financially by 

receiving something of value from aparticipation in a venture 

that subjected a person to] human trafficking.

Give as applicable

2. (Defendant) did so [knowing] [in reckless disregard of the fact] 

that a person would be subject to human trafficking.

§ 787.06(3)(a)1, Fla. Stat.

The human trafficking was for the labor or services of a child.

§ 787.06(3)(a)2, Fla. Stat.

The human trafficking involved (defendant’s) use of coercion for 

the labor or services of an adult. 

§ 787.06(3)(b), Fla. Stat.

The human trafficking involved (defendant’s) use of coercion for 

commercial sexual activity of an adult. 

§ 787.06(3)(c)1, Fla. Stat.

The human trafficking was for the labor or services of a child who 

was an unauthorized alien.

§ 787.06(3)(c)2, Fla. Stat. 

The human trafficking involved (defendant’s) use of coercion for 

the labor or services of an adult who was an unauthorized alien. 

§ 787.06(3)(d), Fla. Stat. 

The human trafficking involved (defendant’s) use of coercion for 

commercial sexual activity of an adult who was an unauthorized 

alien. 

§ 787.06(3)(e)1, Fla. Stat.

The human trafficking was for the labor or services of a child by 

the transfer or transport of the child from outside Florida to 

within this state.

§ 787.06(3)(e)2, Fla. Stat. 
- 58 -

The human trafficking involved (defendant’s) use of coercion for 

the labor or services of an adult by the transfer or transport of the 

adult from outside Florida to within this state.

§ 787.06(3)(f)1, Fla. Stat.

The human trafficking was for commercial sexual activity of a 

child by the transfer or transport of the child from outside 

Florida to within this state.

§ 787.06(3)(f)2, Fla. Stat.

The human trafficking involved (defendant’s) use of coercion for 

commercial sexual activity of an adult by the transfer or transport 

of the adult from outside Florida to within this state. 

§ 787.06(3)(g), Fla. Stat.

The human trafficking was for commercial sexual activity in 

which a [child] [person who is mentally defective or mentally 

incapacitated] was involved.

Definitions.

Give in all cases.

§ 787.06(2)(d), Fla. Stat. 

“Human trafficking” means [transporting] [soliciting] [recruiting] 

[harboring] [providing] [enticing] [maintaining] [or] [obtaining] another 

person for the purpose of exploitation of that person. through: 

a. [coercion for labor or services].

b. [coercion for commercial sexual activity]. 

c. [coercion for labor or services of any individual who is an 

unauthorized alien]. 

d. [coercion for commercial sexual activity of any individual who is 

an unauthorized alien]. 

e. [coercion for labor or services who does so by the transfer or 

transport of any individual from outside Florida to within Florida]. 
- 59 -

f. [coercion for commercial sexual activity who does so by the 

transfer or transport of any individual from outside Florida to within 

Florida]. 

Give in all cases, as applicable.

“Child” means a person under the age of 18.

“Adult” means a person 18 years of age or older.

Give if applicable. 

§ 787.06(2)(a), Fla. Stat. 

“Coercion” means:

1. Using or threatening to use physical force against any person;

Restraining, isolating, or confining or threatening to restrain, 

isolate, or confine any person without lawful authority and 

against her or his will;

3. Using lending or other credit methods to establish a debt by any 

person when labor or services are pledged as a security for the 

debt, if the value of the labor or services as reasonably assessed is 

not applied toward the liquidation of the debt, the length and 

nature of the labor or services are not respectively limited and 

defined;

4. Destroying, concealing, removing, confiscating, withholding, or 

possessing any actual or purported passport, visa, or other 

immigration document, or any other actual or purported 

government identification document, of any person;

5. Causing or threatening to cause financial harm to any person; 

6. Enticing or luring any person by fraud or deceit; or

7. Providing a controlled substance as outlined in Schedule [I] [II] of 

Florida Statute 893.03 to any person for the purpose of 

exploitation of that person.:

a. [using coercion for labor or services]. 
- 60 -

b. [using coercion for commercial sexual activity]. 

c. [using coercion for labor or services of any individual who 

is an unauthorized alien]. 

d. [using coercion for commercial sexual activity of any 

individual who is an unauthorized alien]. 

e. [using coercion for labor or services who does so by the 

transfer or transport of any individual from outside 

Florida to within Florida]. 

f. [using coercion for commercial sexual activity who does so 

by the transfer or transport of any individual from outside 

Florida to within Florida].

(Name of controlled substance) is a Schedule [I] [II] drug within 

Florida Statute 893.03.

Give as applicable.

§ 787.06(2)(b), Fla. Stat. 

“Commercial sexual activity” means:

a. (name of chapter 796 crime). (Name of chapter 796 crime) is 

defined as (insert definition of Chapter 796 crime).

b. an attempt to commit (name of chapter 796 crime). An 

attempt to commit (name of chapter 796 crime) is defined as

(insert definition of attempt in Instruction 5.1 and then define 

the Chapter 796 crime).

c. sexually explicit performances. “Sexually explicit 

performance” means an act or show, whether public or 

private, that is live, photographed, recorded, or videotaped 

and intended to arouse or satisfy the sexual desires or 

appeal to the prurient interest.

d. the production of pornography. 
- 61 -

§ 787.06(2)(c), Fla. Stat. Insert definition of loan sharking from §687.071 

Fla. Stat. Insert explanation of the statute of frauds from §725.01 Fla. Stat.

“Financial harm” includes [extortionate extension of credit] [loan 

sharking] [employment contracts that violate the statute of frauds]. 

§ 787.06(2)(e), Fla. Stat.

“Labor” means work of economic or financial value.

§ 787.06(2)(f), Fla. Stat. 

“Maintain” means in relation to labor or services, to secure or make 

possible continued performance thereof, regardless of any initial agreement 

on the part of a victim to perform such type service.

§ 787.06(2)(g), Fla. Stat. 

“Obtain” means, in relation to labor or services, to secure performance 

thereof.

§ 787.06(2)(h), Fla. Stat.

“Services” means any act committed at the behest of, under the 

supervision of, or for the benefit of another. [The term includes, but is not 

limited to [forced marriage] [servitude] [the removal of organs].]

§ 787.06(2)(j), Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).

“Unauthorized alien” means an alien who is not authorized under 

federal law to be employed in the United States.

§ 787.06(2)(k), Fla. Stat.

“Venture” means any group of two or more individuals associated in 

fact, whether or not a legal entity.

§ 787.06(3)(g), 794.011(1), Fla. Stat.

“Mentally incapacitated” means that a person is rendered temporarily 

incapable of appraising or controlling his or her conduct due to the influence 

of a narcotic, anesthetic, or intoxicating substance administered to that person 

without his or her consent, or due to any other act committed upon that 

person without his or her consent.

“Mentally defective” means that a person suffers from a mental disease 

or defect that renders that person temporarily or permanently incapable of 

appraising the nature of his or her conduct.
- 62 -

Enhanced penalty. § 787.06(3)(g) and (h), Fla. Stat. Give if applicable but 

only in cases where the exploitation involves commercial sexual activity.

If you find the defendant guilty of Human Trafficking Involving 

Commercial Sexual Activity, you must then determine whether the State has 

proven beyond a reasonable doubt that: a person under the age of [15] [18] 

was involved.

Enhanced penalty. § 787.06(3)(g) and (h), Fla. Stat. Give if applicable. 

If the defendant had a reasonable opportunity to observe (victim), the 

State does not need to prove that the defendant knew that (victim) had not 

attained the age of [15][18] years. 

Give if requested. § 787.06(8), Fla. Stat.

The defendant’s ignorance of the victim’s age, the victim’s 

misrepresentation of his or her age, or the defendant’s bona fide belief of the 

victim’s age is not a defense to the crime charged.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

A conviction under § 787.06(3)(f)1, Fla. Stat., (human trafficking via 

commercial sexual activity of a child by transport or transfer into Florida) is a 

felony of the first degree, punishable by imprisonment for a term of years not 

exceeding life. However, a conviction under 787.06(3)(g) (human trafficking via 

commercial sexual activity where a child was involved but without a finding that 

the child was transported from outside the state) is a life felony.

This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2015.

29.25 HUMAN TRAFFICKING BY A [PARENT] [LEGAL GUARDIAN] 

[PERSON WITH CUSTODY OR CONTROL] OF A MINOR

§ 787.06(4), Fla. Stat.

To prove the crime of Human Trafficking By a [Parent] [Legal 

Guardian] [Person With Custody or Control] of a Minor, the State must 

prove the following four elements beyond a reasonable doubt:
- 63 -

1. (Defendant) [was a parent] [was a legal guardian] [had custody or 

control] of (victim).

2. (Defendant) [sold or otherwise transferred custody or control of 

(victim)] [offered to sell or offered to otherwise transfer custody of 

(victim)].

3. (Defendant) did so [knowing] [or] [in reckless disregard of the 

fact] that as a consequence of the sale or transfer, (victim) would

be subjected to human trafficking.

4. At the time, (victim) was under the age of 18 years.

Definitions.

Give in all cases.

§ 787.06(2)(d), Fla. Stat.

“Human trafficking” means [transporting] [soliciting] [recruiting] 

[harboring] [providing] [enticing] [maintaining] [or] [obtaining] another 

person for the purpose of exploitation of that person. through:

a. [coercion for labor or services]. 

b. [coercion for commercial sexual activity]. 

c. [coercion for labor or services of any individual who is an 

unauthorized alien]. 

d. [coercion for commercial sexual activity of any individual who is 

an unauthorized alien]. 

e. [coercion for labor or services who does so by the transfer or 

transport of any individual from outside Florida to within 

Florida]. 

f. [coercion for commercial sexual activity who does so by the 

transfer or transport of any individual from outside Florida to 

within Florida]. 

Give in all cases, as applicable.

§ 787.06(2)(a), Fla. Stat. 
- 64 -

“Coercion” means:

1. Using or threatening to use physical force against any person;

Restraining, isolating, or confining or threatening to restrain, 

isolate,or confine any person without lawful authority and against 

her or his will;

Using lending or other credit methods to establish a debt by any person 

when labor or services are pledged as a security for the debt, if the 

value of the labor or services as reasonably assessed is not applied 

toward the liquidation of the debt, the length and nature of the 

labor or services are not respectively limited and defined;

Destroying, concealing, removing, confiscating, withholding, or 

possessing any actual or purported passport, visa, or other 

immigration document, or any other actual or purported 

government identification document, of any person;

Causing or threatening to cause financial harm to any person; 

Enticing or luring any person by fraud or deceit; or

Providing a controlled substance as outlined in Schedule [I] [II] of 

Florida Statute 893.03 to any person for the purpose of: 

a. [using coercion for labor or services]. 

b. [using coercion for commercial sexual activity]. 

c. [using coercion for labor or services of any individual who 

is an unauthorized alien]. 

d. [using coercion for commercial sexual activity of any 

individual who is an unauthorized alien]. 

e. [using coercion for labor or services who does so by the 

transfer or transport of any individual from outside 

Florida to within Florida]. 
- 65 -

f. [using coercion for commercial sexual activity who does so 

by the transfer or transport of any individual from outside 

Florida to within Florida].

(Name of controlled substance) is a Schedule [I] [II] drug within 

Florida Statute 893.03.

Give as applicable.

§ 787.06(2)(b), Fla. Stat. 

“Commercial sexual activity” means:

a. (name of chapter 796 crime). (Name of chapter 796 crime) is defined 

as (insert definition of Chapter 796 crime).

b. an attempt to commit (name of chapter 796 crime). An attempt to 

commit (name of chapter 796 crime) is defined as (insert definition 

of attempt in Instruction 5.1 and then define the Chapter 796 crime).

c. sexually explicit performances. “Sexually explicit performance” 

means an act or show, whether public or private, that is live, 

photographed, recorded, or videotaped and intended to arouse or 

satisfy the sexual desires or appeal to the prurient interest.

d. the production of pornography. 

§ 787.06(2)(c), Fla. Stat. Insert definition of loan sharking from § 687.071, 

Fla. Stat. Insert explanation of the statute of frauds from § 725.01, Fla. Stat.

“Financial harm” includes [extortionate extension of credit] [loan 

sharking] [employment contracts that violate the statute of frauds]. 

§ 787.06(2)(e), Fla. Stat. 

“Labor” means work of economic or financial value.

§ 787.06(2)(f), Fla. Stat.

“Maintain” means in relation to labor or services, to secure or make 

possible continued performance thereof, regardless of any initial agreement 

on the part of a victim to perform such type service.

§ 787.06(2)(g), Fla. Stat.

“Obtain” means, in relation to labor or services, to secure performance 

thereof.
- 66 -

§ 787.06(2)(h), Fla. Stat.

“Services” means any act committed at the behest of, under the 

supervision of, or for the benefit of another. [The term includes, but is not 

limited to [forced marriage] [servitude] [the removal of organs].]

§ 787.06(2)(j), Fla. Stat. See 8 U.S.C. s. 1324a(h)(3).

“Unauthorized alien” means an alien who is not authorized under 

federal law to be employed in the United States.

Enhanced penalty. § 787.06(3)(h), Fla. Stat. Give if applicable but only in 

cases where the exploitation involves commercial sexual activity.

If you find the defendant guilty of Human Trafficking Involving 

Commercial Sexual Activity, you must then determine whether the State has 

proven beyond a reasonable doubt that the minor was under the age of 15.

§ 787.06(3)(g) and (h), Fla. Stat. Give if applicable but only in cases where 

the exploitation involves commercial sexual activity. 

If the defendant had a reasonable opportunity to observe (victim), the 

State does not need to prove that the defendant knew that (victim) had not 

attained the age of [15] [or] [18] years.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2015.