IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-12. (2019)

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.

On November 8, 2018, the Committee filed a report proposing amendments to the following existing instructions: 3.6(m) (Affirmative Defense: Temporary Possession of Controlled Substance for Legal Disposal); 3.6(n) (Affirmative Defense: Controlled Substance Was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription); 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Purchase, Manufacture, or Deliver a Controlled Substance); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams of a Controlled Substance); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.8 (Obtaining a Controlled Substance by Fraud, etc.); 25.14 (Use or Possession with Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program]); 25.19 (Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances); 25.20 (Possession of Contraband [in] [upon the Grounds of] a State Correctional Institution); and 25.21 ([Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution). The Committee also proposes deleting instructions 25.9 (Trafficking in Cannabis), 25.10 (Trafficking in Cocaine), 25.11 (Trafficking in [Morphine] [Opium] [Hydromorphone] [Heroin] [(Specific Substance Alleged)]), 25.11(a) (Trafficking in Hydrocodone), 25.11(b) (Trafficking in Oxycodone), 25.12 (Trafficking in Phencyclidine), 25.13 (Trafficking in Methaqualone), 25.13(a) (Trafficking in [Amphetamine] [Methamphetamine]), 25.13(b) (Trafficking in Flunitrazepam), 25.13(c) (Trafficking in [GHB] [GBL] [1,4-Butanediol]), 25.13(d) (Trafficking in Phenethylamines (Includes MDMA)), and 25.13(e) (Trafficking in LSD). In addition, a new instruction, 25.7(a) (Trafficking in (Name of Controlled Substance)), is proposed. The proposals were published in The Florida Bar News; the Committee did not receive any comments.

We authorize the proposed amendments to the instructions for publication and use as proposed with certain modifications, and discuss the more significant amendments to the instructions.

First, to the extent that the instructions address the concept of “possession,” they include the new format as previously authorized by the Court. See, e.g., In re Std. Jury Instrs. in Criminal Cases—Report 2018-10, 259 So.3d 765, 766 (Fla. 2018); In re Std. Jury Instrs. in Criminal Cases—Report 2018-08, 259 So.3d 754, 756 (Fla. 2018); In re Std. Jury Instrs. in Criminal Cases—Report 2017-03, 238 So.3d 182 (Fla. 2018).

Next, the instructions that include the affirmative defense inference pertaining to lack of knowledge of the illicit nature of a controlled substance, see sections 893.101(2) and 893.101(3), Florida Statutes (2018), are revised consistent with the language previously authorized in instruction 25.7 (Possession of a Controlled Substance). See In re Std. Jury Instrs. in Criminal Cases—Report 2017-03, 238 So.3d at 191.

On the Court's own motion, we amend the table of lesser-included offenses for instructions 25.17, 25.18, and 25.21 to reflect that possession of a controlled substance is not necessarily a category one lesser-included offense of contraband in either a county detention facility, a juvenile detention facility or commitment program, or a state correctional institution, respectively.

Lastly, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e), which individually pertain to trafficking of a specifically named controlled substance, are hereby deleted. In their place, new instruction 25.7(a) is authorized, which provides for the insertion of the name of the particular drug charged.

Having considered the Committee's report, we authorize the new and amended instructions as set forth in the appendix to this opinion for publication and use.¹ In addition, instructions 25.9, 25.10, 25.11, 25.11(a), 25.11(b), 25.12, 25.13, 25.13(a), 25.13(b), 25.13(c), 25.13(d), and 25.13(e) are deleted. 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.

APPENDIX

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 POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.