IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-10. (2018)

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 and authorize the amendments to the instructions for publication and use. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard jury instructions 10.1 (Carrying a Concealed [Weapon] [Firearm] ), 10.5 (Improper Exhibition of a [Weapon] [Firearm] ), and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ), and new instruction 10.6(b) (Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle).¹

The Committee published its proposals pertaining to instructions 10.1, 10.5, and 10.6(b) in the January 1, 2017, issue of The Florida Bar News. The Committee received a comment from the Florida Association of Criminal Defense Lawyers (FACDL) and the Florida Public Defender Association (FPDA) pertaining to the proposals. The proposal to amend instruction 13.5 was published in the October 1, 2017, edition of The Florida Bar News. The Committee's proposals subsequently were published by the Court, appearing in the February 1, 2018, edition of The Florida Bar News. FPDA filed a comment with the Court pertaining to the Committee's proposal to amend instruction 13.5. The more significant amendments to the instructions are discussed below.

Criminal jury instruction 10.1 (Carrying a Concealed [Weapon] [Firearm] ) is amended to include a third element that requires the State to prove that the defendant did not have a license to carry a concealed weapon or firearm at the time he or she did the carrying. The Committee explains that the reason for the amendment is because chapter 2015-44, section 1, Laws of Florida, deleted licensure from section 790.01(3), Florida Statutes (2016), and added the language “a person who is not licensed under section 790.06” into the text containing the elements of carrying a concealed weapon and carrying a concealed firearm under sections 790.01(1) and (2), Florida Statutes (2016), respectively. Additionally, chapter 2015-44, section 1, Laws of Florida, changed the name of section 790.01, Florida Statutes (2016), to “Unlicensed Carrying of Concealed Weapons or Concealed Firearms.” (Emphasis added.)

Amended instruction 10.1 also includes alternative burdens of proof, depending upon whether the State or the defendant carries the burden of persuasion. The term “slungshot” is deleted from the definition of “concealed weapon” in section 790.001(3)(a), Florida Statutes (2017), because that type of weapon was removed from the statute by chapter 2016-106, section 2, Laws of Florida. Finally, the statutory citation in the definition section of the instruction, pertaining to “firearm,” is corrected to cite to section 790.001(6), Florida Statutes (2017), rather than subsection (2).

Instructions 10.5 (Improper Exhibition of a [Weapon] [Firearm] ) and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ) are amended to exclude the word “closed” in the phrase “closed common pocketknife” due to conflict in the district courts of appeal regarding whether an open common pocketknife is a weapon pursuant to the definition provided under section 790.001(13), Florida Statutes (2017).

New standard criminal jury instruction 10.6(b) (Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle) is added because there is no existing instruction for the offense defined in section 790.15(3), Florida Statutes (2017). The instruction includes two elements: (1) the defendant is the driver or owner of the vehicle; and (2) the defendant knowingly directs another to discharge a firearm from that vehicle. Additionally, after consideration of a comment submitted by FPDA, the definition section of the instruction reads “the term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of another crime.” This language is included in response to the statutory exemption in section 790.001(6), Florida Statutes (2017), to exclude antique firearms from the statutory definition of firearms unless the antique firearm is used in the commission of “a crime.” The Committee reasons that providing the words “another crime” rather than “a crime” can prevent the potential for courts to treat a discharge of a firearm in the same manner as a firearm offense that consisted solely of carrying or possessing a firearm.

Having considered the Committee's report and the comments submitted to the Committee and filed with the Court, and the Committee's response to the comments, the amended and new 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 underlining; 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 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.

APPENDIX

FOOTNOTES

1.   The Committee's report originally asked the Court to authorize for publication and use proposed new instruction 10.6(c) (Recreational Discharge of a Firearm Outdoors in a Residential Area). However, following publication by the Court and upon review of a comment filed with the Court by the Florida Public Defender Association, the Committee requested to withdraw instruction 10.6(c). After reviewing the comment by the Florida Public Defender Association, and the Committee's reasoning for its withdrawal, the Court hereby grants the Committee's request to withdraw proposed instruction 10.6(c). Proposed new instruction 10.6(c) is no longer a part of case number SC17-2263 and is not addressed in this opinion.

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.

PER CURIAM.

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