# Supreme Court of Florida

____________

No. SC18

- 1478

____________

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES

— REPORT 2018

- 07.

December 13, 2018

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal

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

instructions, including amendments to two instructions, the deletion of one

instruction, and the creation of two new instructions. The Committee asks the

Court to authorize the new and amended standard jury instructions for publication

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

The Committee proposes amending standard criminal jury instructions

3 .6(o) (Transferred Intent) and 3.9(c) (Eyewitness Identification). In addition, the

Committee proposes deleting standard criminal jury instruction 8.8 (Aggravated

Stalking (Victim under 16 years of age)) and creating new instructions 8.27

(Violation of an Injunction for Protection Against Exploitation of a Vulnerable- 2

- Adult) and 8.28 (Violation of a Risk Protection Order). Following publication in

The Florida Bar News , no comments were received by the Committee. The more

significant amendments to the inst ructions are discussed below.

First, revisions are made to instruction 3.9(c) to provide clarification and

improve readability. Instruction 3.9(c) is amended to add “[live] [photo]” before

the word “lineup” in appropriate places and “photo” before the wo rd “lineup”

where the instruction solely refers to a photo lineup.

Next, the Committee proposes deleting instruction 8.8 because there are two

standard instructions that pertain to section 784.048(5), Florida Statutes (2018)

,

aggravated stalking of a vic tim under 16 years of age

— criminal jury instructions

8.7(c) and 8.8. The Committee proposes keeping instruction 8.7(c) and deleting

instruction 8.8 since 8.7(c) is the more up

- to

- date instruction.

Additionally, we authorize new instruction 8.27

, which the Committee

created in response to the enactment of section 825.1036(4), Florida Statutes

(2018), effective July 1, 2018. See ch. 2018

- 100, § 3, Laws of Fla. In section

825.1036(4), the Legislature created a first

- degree misdemeanor crime for a p erson

who wil lfully violates an injunction for protection against a vulnerable adult in an

enumerated way. New instruction 8.27 instructs jurors as to the elements of that

crime.- 3

- Last, we authorize new instruction 8.28

, which the Committee create d in

response to the enactment of section 790.401, Florida Statutes (2018). See ch.

2018

- 3, § 15, Laws of Fla. In section 790.401(11)(b), the Legislature created a

new crime for a person who has in his or her custody or control a firearm or any

ammunitio n or who purchases, possesses, or receives a firearm or any ammunition

with knowledge that he or she is prohibited from doing so by a risk protection

order. New instruction 8.28 instructs jurors as to the elements of that crime.

Having considered the Co mmittee’s report, we authorize for publication and

use new and amended instructions 3.6(o), 3.9(c), 8.27, and 8.28, as proposed, and

as set forth in the appendix to this opinion. 1 We delete instruction 8.8 as proposed

by the Committee and reserve that ins truction number for future use. New

language is indicated by underlining, and deleted language is indicated by struck

through type. In authorizing the publication and use of these instructions, we

express no opinion on their correctness and remind all in terested parties that this

authorization forecloses neither requesting additional or alternative instructions nor

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

Instructions as they appear on the Court’s website at

www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize

that there may be minor discrepancies between the instructions as they appear on

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

instructions authorized for publication and use after October 25, 2007, should be

resolved by reference to the published opinion of this Cou rt authorizing the

instruction.- 4

- contesting the legal correctness of the instructions. We caution all interested

parties that any comments associated with the instructions re flect 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 set forth in the appendix shall

become effective when this opinion becomes final.

It is so or dered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,

and LAWSON, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED

WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR

REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS

AF TER THE FILING OF THE MOTION FOR

REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD

EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF

FILED, DETERMINED.

Original Proceedings

– Supreme Court Committee on Standard Jury Instructions in

Crimina l Cases

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

Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff

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

for Petitioner- 5

- APP ENDIX

3.6(o) TRANSFERRED INTENT

If a person intends to [hit] [strike] [shoot] a person, and in the process

[hits] [strikes] [shoots] a different person, the law transfers the intent to [hit]

[strike] [shoot] from the person who was aimed at the intended person to any

person who was actually [hit] [struck] [shot].

Comments

See State v. Brady

, 745 So. 2d 954 (Fla. 1999) and Nelson v. State

, 853 So.

2d 563 (Fla. 4th DCA 2003). Also, in Mordica v. State

, 618 So. 2d 301, 303 (Fla.

1st DCA 1993), the First District rejected the contention that the doctrine of

transferred intent is applicable only where the defendant entirely misses the

intended victim and hits the unintended victim.

The doctrine of transferred intent may not apply to the crime of Attempted

First

- Degree Murder. See Bell v. State

, 768 So. 2d 22 (Fla. 1st DCA 2000)(stating

that if the issue is whether the defendant attempted to murder multiple victims,

then such specific intent is not subject to transfer but rather such intent should be

independently evaluated as to each victim); but see Frederick v. State

, 93 So. 3d

445 (Fla. 4th DCA 2012)(holding that the giving of a transferred intent instruction

was not fundamental error because defendant was not charged with attempting to

murder multiple victims).

This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2017

[228 So. 3d 87] and 201 8

.

3.9(c) EYEWITNESS IDENTIFICATION

Give if eyewitness identification is a disputed issue and if requested.

You have heard testimony of eyewitness identification. In deciding how

much weight to give to this testimony, you may consider the various factors

mentioned in these instructions concerning credibility of witnesses.

In addition to those factors, in evaluating eyewitness identification

testimony, you may also consider:

1. The capacity and opportunity of the eyewitness to observe the- 6

- offender based upon the length of time for observation and th e

conditions at the time of observation, including lighting and

distance.

2. Whether the identification was the product of the eyewitness’s

own recollection or was the result of influence or suggestiveness.

3. The circumstances under which the defendant was presented to

the eyewitness for identification.

4. Any inconsistent identifications made by the eyewitness.

5. Any instance in which the eyewitness did not make an

identification when given the opportunity to do so.

6. The witness’s familiarity with the subject identified.

7. Lapses of time between the event and the identification[s].

8. Whether the eyewitness and the offender are of different races

or ethnic groups, and whether this may have affected the

accuracy of the identification.

9. The totality of circumstances surrounding the

eyewitness’s identification.

Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.

You have heard testimony concerning a [live] [photo] lineup conducted

by a law enforcement agency. Florida law requires that the person

conducting the [live] [photo] lineup must not have participated in the

investigation of the crime alleged and must not have been aware of which

person in the [live] [photo] lineup was the suspect.

When an independent administrator was not used. Give as applicable.

As an alternative, it is permissible under Florida law if

[an automated computer program automatically administered the photo

lineup directly to an eyewitness and prevented the person conducting the

photo lineup from seeing which photograph the eyewitness viewed until after

the procedure was completed.]

[photographs were placed in folders, randomly numbered, and shuffled

and then presented to an eyewitness such that the person conducting the- 7

- photo lineup did not see or did not track which photograph was presented to

the eyewitness until after the procedure was completed.]

[the photo lineup procedure achieved neutral administration and

prevented the person conducting the photo lineup from knowing which

photograph was presented to the eyewitness during the identification

procedure.]

Give in all cases involving a lineup.

Also, before conducting a [live] [photo] lineup, the eyewitness must be

instructed that:

1. The perpetrator might or might not be in the [live] [photo] lineup;

Give #2 only when an independent administrator was used.

2. The person conducting the [live] [photo] lineup does not know

the suspect’s identity;

3. The eyewitness should not feel compelled to make an identification;

4. It is as important to exclude innocent persons as it is to identify

the perpetrator; and

5. The investigation will continue with or without an identification.

The eyewitness must acknowledge, in writing, that he or she received

a copy of the [live] [photo] lineup instructions. If the eyewitness refused to

sign a document acknowledging receipt of the instructions, the person

conducting the [live] [photo] lineup must document the refusal of the

eyewitness to sign a document acknowledging receipt of the instructions,

and the person conducting the [live] [photo] lineup must sign the

acknowledgment document himself or herself.

You may consider compliance or noncompliance with these

requirements to determine the reliability of an eyewitness identification

made during a [live] [photo] lineup procedure.

Comment

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

2013 [122 So. 3d 302], and 2018 [238 So. 3d 192], and 201 8

.- 8

- 8.8 AGGRAVATED STALKING

(Victim under 16 years of age)

§ 784.048(5), Fla. Stat.

To prove the crime of aggravated stalking, the State must prove the

following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly

[followed]

2. [harassed] [or] [cyberstalked] (victim) ; and,

3. At the time of (defendant’s) actions, (victim) was under 16 years

of age.

Definitions.

“Harass” means to engage in a course of conduct directed at a

specific person that causes substantial emotional distress in such person

and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to

communicate, or to cause to be communicated, words, images, or language

by or through the use of electronic mail or electronic communication,

directed at a specific person, causing substantial emotional distress to that

person and serving no legitimate purpose.

Lesser Included Offenses

AGGRAVATED STALKING (Victim under 16 years of age)

— 784.048(5)

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

Stalking 784.048(2) 8.6

Attempt 777.04(1) 5.1

Violation of injunction

for protection against

domestic violence 741.31(4) 8.18

Comment- 9

- This instruction is based on the text of section 784.048(5), Florida

Statutes (1997), and generally patterned after the standard instructions on

stalking and aggravated stalking.

This instruction was adopted in 2000 [765 So.2d 692] and amended in

2007 [953 So. 2d 495] to incorporate cyberstalking.

8.27 VIOLATION OF AN INJUNCTION FOR PROTECTION

AGAINST EXPLOITATION OF A VULNERABLE ADULT

§ 825.1036(4), Fla.

Stat.

To prove the crime of Violation of an Injunction for Protection

Against Exploitation of a Vulnerable Adult, the State must prove the

following two elements beyond a reasonable doubt:

1. A [temporary] [final] injunction for protection against

exploitation of a vulnerable adult was issued by a court

against (defendant) for the benefit of (victim)

.

2. (Defendant) willfully violated the injunction by (alleged violation of

§§ 825.1036(4)(a)1.

– 7., Fla. Stat.)

.

Definition.

“Willfully” means knowingly, intentionally, and purposely.

If the allegation involves the defendant exploiting a vulnerable adult,

define “exploitation” and “vulnerable adult” from §§ 825.101(6),(14), Fla.

Stat.

Lesser Included Offense

VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST

EXPLOITATION OF A VULNERABLE ADULT

– 825.1036

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

None

Attempt 777.04(1) 5.1

Comments- 10

- The crime of Violation of an Injunction for Protection Against Exploitation

of a Vulnerable Adult is bumped up from a first

- degree misdemeanor to a third

degree felony if the defendant had two or more prior convictions for violating

either an injunction or a foreign protection order involving the same victim. It is

unclear whether the courts will require the historical fact of the prior convictions

against the same victim to be proven to the jury or whether only the sentencing

judge may find that the prior convictions against the same victim exist. If the issue

is to be submitted to a jury, it is error to inform the jury of the allegation of prior

convictions until the verdict on the underlying Violation of an Injunction is

rendered. Therefore, if the charging document contains an allegation of prior

Violation of Injunction convictions, do not read that allegation and do not send

the information or indictment into the jury room prior to a verdict. If the

defendant is found guilty of Violation of an Injunction for Protection Against

Exploitation of a Vulnerable Adult, the historical fact of prior convictions against

the same victim shall be determined separately in a bifurcated proceeding. State v.

Harbaugh, 754 So. 2d 691 (Fla. 2000). The term “conviction” means a

determination of guilt which is the result of a plea or a trial, regardless of whether

adjudication is withheld or a plea of nolo contendere is entered. § 825.1036(4)(b),

Fla. Stat

.

This instruction was adopted in 201 8

.

8.28 VIOLATION OF A RISK PROTECTION

ORDER

§ 790.401(11)(b), Fla. Stat.

To prove the crime of Violation of a Risk Protection Order, the State

must prove the following three elements beyond a reasonable doubt:

1. A [temporary] [final] risk protection order was issued by a court

against (defendant)

.

2. (Defendant) knew that [he] [she] was prohibited from [possessing]

[or] [having in [his] [her] custody or control] [or] [receiving] [or]

[purchasing] [a firearm] [or] [ammunition] because of that court

order.

3. (Defendant) violated the court order by knowingly [possessing]

[or] [having in [his] [her] custody or control] [or] [receiving]

[or] [purchasing] [a firearm] [or] [ammunition].- 11

- Give as applicable.

§ 790.001(6), Fla. Stat.

A “firearm” means any weapon [including a starter gun] which will, is

designed to, or may readily be converted to expel a projectile by the action of

an explosive; [the frame or receiver of any such weapon;] [any firearm

muffler or firearm silencer;] [any destructive device;] [any machine gun].

[The term “firearm” does not include an antique firearm unless the antique

firearm is used in the commission of another crime. An antique firearm is

(insert definition in § 790.001(1), Fla. Stat.) ] [A destructive device is (insert

definition in § 790.001(4), Fla. Stat.) ]

.

§ 790.001(19), Fla. Stat.

“Ammunition” means an object consisting of all of the following:

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

b. One or more projectiles, one or more bullets, or shot.

c. Gunpowder.

Possession.

To prove (defendant) “possessed” [a firearm] [or] [ammunition], the

State must prove beyond a reasonable doubt that [he] [she] a) knew of the

existence of the [firearm] [or] [ammunition] and b) intentionally exercised

control over it.

Give if applicable.

Control can be exercised over [a firearm] [or] [ammunition] whether

it is carried on a person, near a person, or in a completely separate

location. Mere proximity to [a firearm] [or] [ammunition] does not establish

that the person intentionally exercised control over it in the absence of

additional evidence

. Control can be established by proof that (defendant) had

direct personal power to control the [firearm] [or] [ammunition] or the

present ability to direct its control by another.

Joint possession.

Possession of [a firearm] [or] [ammunition] may be sole or joint, that is,

two or more persons may possess it.- 12

- Lesser Included Offense

VIOLATION OF A RISK PROTECTION ORDER

— 790.401(11)(b)

CATEGORY

ONE CATEGORY

TWO FLA. STAT INS. NO.

None

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 2018

.