IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-05. (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. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following standard criminal jury instructions: 12.1 (Arson – First Degree); 13.1 (Burglary); 13.3 (Trespass – In Structure or Conveyance); 13.4 (Trespass – On Property Other Than a Structure or Conveyance); and 13.21 (Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary). The proposals were published by the Committee in The Florida Bar News. No comments were received by the Committee. After the Committee filed its report, the Court did not publish the proposals for comment.

Having considered the Committee's report, we amend the standard jury instructions as proposed by the Committee and authorize them for publication and use. We discuss the more significant amendments below.

First, the definitions of “dwelling” and “structure” in instructions 12.1, 13.1, 13.3, 13.4, and 13.21 that are based on sections 810.011(1) and (2), Florida Statutes (2018), are amended to include a bracketed sentence clarifying whether an enclosed space surrounding a building can be considered part of the dwelling or structure. The new sentence reads: “The enclosure need not be continuous as it may have an ungated opening for entering and exiting.” Those definitions in those instructions are also amended to add a citation to DuBose v. State, 210 So.3d 641 (Fla. 2017), in which this Court held that an enclosure “need not be continuous[,] and an ungated opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of the house.” Id. at 653-54 (alteration in original) (quoting DuBose v. State, 75 So.3d 383, 384-85 (Fla. 1st DCA 2011) ). The definition of “conveyance” found in instructions 13.1, 13.3, and 13.21 is also amended to better track the language of section 810.011(3), Florida Statutes.

Next, instructions 13.1, 13.3, and 13.4 are amended to include a definition of “great bodily harm,” providing that “ ‘Great bodily harm’ means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.” The definition is based upon that provided by Wheeler v. State, 203 So.3d 1007 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal held that “ ‘great bodily harm’ is ‘distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in simple assault and battery.’ ” Id. at 1009 (quoting T.W. v. State, 98 So.3d 238, 243 (Fla. 4th DCA 2012) ).

Additionally, instruction 13.1 is amended to reflect that claims of consent to enter the structure or conveyance, or that the premises were open to the public, are affirmative defenses rather than elements of the crime of burglary. This Court made clear in State v. Hicks, 421 So.2d 510, 511-12 (Fla. 1982), and reiterated in State v. Waters, 436 So.2d 66, 69 n.3 (Fla. 1983), that claims of consent are defenses to burglary that must be raised affirmatively.

Last, in instruction 13.1 the paragraph that currently reads “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” is amended to read “If you find a firearm to be a ‘dangerous weapon,’ then 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 a burglary.” This language is amended to better reflect that a firearm must be found to be a “dangerous weapon” under the burglary statute, because there is no authority making such a finding as a matter of law.

The amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.¹ New language is indicated by underlining, and deleted language is indicated by struck-through type. We caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

FOOTNOTES

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 Court authorizing the instruction.

PER CURIAM.

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