IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-03.

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Supreme Court of Florida.

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-03.

No. SC17-1652

Decided: March 08, 2018

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

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to standard jury instructions 16.10 (Possession of Material Including Sexual Conduct by a Child with Intent to Promote) and 25.7 (Possession of a Controlled Substance). The Committee requests that the Court authorize for publication and use the amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee's proposals derive from a referral made by the Court, requesting that the Committee “consider appointing a subcommittee of prosecutors, defense lawyers, and judges to more thoroughly consider [the issue of simplifying the possession instructions] and determine whether the criminal jury instructions should be simplified.” Accordingly, the Committee created a subcommittee of eleven persons, including district court of appeal judges, circuit court judges, prosecutors, and defense attorneys, with the Committee's Chair acting as chair of the subcommittee. The subcommittee unanimously agreed, and the Committee also agreed, that the existing explanation of “possession” in the standard criminal jury instructions should be simplified. Following receipt of the subcommittee's recommendations on amending the possession-related instructions, the Committee ultimately submitted to the Court its proposals to amend instructions 16.10 and 25.7.1 We amend the instructions as proposed by the Committee, and significant amendments are discussed below.2

Instruction 16.10 is amended to include an explanation of “possession,” which was not previously defined in the instruction, as follows:

Possession.

To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation] that included sexual conduct by a child, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [presentation] and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [presentation].

Give if applicable.

Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.

Possession may be sole or joint, that is, two or more persons may possess a [n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation].

With regard to instruction 25.7, the explanation for “possession” used in instruction 16.10 as amended is also added to instruction 25.7, with modifications applicable to an offense pertaining to a controlled substance. In addition, the definitions for “mixture,” “possession,” “actual possession,” and “constructive possession” are removed, as is the inference for “exclusive control.”

Having considered the Committee's report, the comment from attorney Richard Sanders, and the Committee's response, we authorize for publication and use amended instructions 16.10 and 25.7, as proposed, and as set forth in the appendix to this opinion.3 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.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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FOOTNOTES

1.   After the Court's referral to the Committee, the proposal to amend instruction 25.7 was published by the Committee, while the Court published the Committee's proposed amendments to instruction 16.10. One comment was received, pertaining to the proposal to amend instruction 25.7. The Committee chose the two instructions, one involving possession of material that contains sexual conduct by a child and one for offenses involving illegal drugs, for consideration by the Court, rather than proposing amendments to all possession-related instructions at one time. We appreciate the Committee's methodology in bringing this matter before the Court.

2.   Minor, technical changes to the instructions are not elaborated upon.

3.   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.

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

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