AMENDED Report No

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1 In the Supreme Court of Florida In the matter of use by the trial courts of the Supreme Court Standard Jury Instructions Committee in Criminal Cases / Case No. SC AMENDED Report No Supreme Court Committee on Standard Jury Instructions in Criminal Cases To the Chief Justice and Justices of the Supreme Court of Florida: This amended report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases on the Supreme Court s website at is filed pursuant to Article V, section 2(a), Florida Constitution. Proposed amended drug abuse instructions can be found at AMENDED Appendix A. Proposed lewd & lascivious instructions are new and are hereby resubmitted as Appendix B. Supporting documents for the drug abuse instructions are found at Appendix C, Part 1 Legislative Information/Approved Possession Section, Part 2 Committee Minutes, Part 3 Minority Opinions, and Part 4 Comments. Words to be removed are shown by strike-through marks, and words to be added are shown by underlining. The instructions were published by the Court in The Florida Bar News on October 15, Comments were received from Mr. Bart Schneider and the Florida Association of Criminal Defense Lawyers (FACDL). Explanation of Proposals AMENDED Appendix A - Revised instructions for drug abuse offenses. In Chicone v. State, 684 So.2d 736 (Fla. 1996), the Florida Supreme Court held that: While the existing jury instructions are adequate in requiring 1

2 knowledge of the presence of the substance, we agree that, if specifically requested by a defendant, the trial court should expressly indicate to jurors that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed. We hold that the defendant was entitled to a more specific instruction as requested here. The Court stated that this was an appropriate subject to be addressed by the Committee on Standard Jury Instructions in Criminal Cases. The committee began its work on the drug abuse instructions with this direction from the Court. In January 2002, this Honorable Court reiterated its holding in Chicone in the case of Scott v. State, 808 So.2d 166 (Fla. 2002). Three questions of great public importance were certified to the Court from the Fifth District Court of Appeal. 1. Does the illegal possession of a controlled substance raise a rebuttable presumption (or inference) that the defendant had knowledge of its illegal nature? 2. If so, and the defendant fails to raise the issue that he was unaware of the illicit nature of the substance, is he nevertheless entitled to a Chicone instruction? 3. Can the failure to give the requested instruction be harmless error? The Court answered questions one and three in the negative and question two in the affirmative. The Court held that:... the defendant s knowledge of the illicit nature of the controlled substance is an element of the offense of possession, and an instruction that the State must prove this element must be given as part of the standard jury instructions. Subsequently, the Florida Legislature passed chapter , Laws of Florida, (Appendix C Part 1) repudiating the holdings in Chicone and Scott. Section , Florida Statutes, states that the cases of Chicone and Scott were contrary to legislative intent. The law provides that: 2

3 Knowledge is not an element of the illicit nature of a controlled substance. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offense. Asserting an affirmative defense gives rise to a permissive presumption and the jury shall be instructed on permissive presumption. In August 2003, proposed drug abuse instructions were submitted in Report They were published in The Florida Bar News on June 1, One comment was received from the Florida House of Representatives Committee on Judiciary (Appendix C Part 1). In March 2004, the Supreme Court released SC03-629, referring the proposed drug abuse instructions back to the committee for further study based on the comments from the Judiciary Committee. The Court asked the committee to revise the instructions:... to reflect the fact that the absence of knowledge of the illicit nature of a controlled substance is an affirmative defense and to reflect the permissive presumption of the existence of such knowledge that arises from proof of possession of a controlled substance. The committee began its discussion on this issue July 2004, focusing specifically on amendments to the Possession instruction (included in each of the instructions). Over the course of the next year, the committee debated changes to the Possession section. A majority vote was finally reached on a completed instruction in July The committee agreed to amend the word thing to controlled substance throughout the proposal. Thing was considered to be broad and unspecific. Controlled substance tracked the statute. The debate amending the word person(s) throughout the instructions to the word defendant( s) went back and forth over the year, with various changing votes. Ultimately the committee approved changing person(s) to defendant( s) in certain specified paragraphs. Based on chapter , Laws of Florida, the committee deleted the reference to Chicone v. State and reworded the constructive possession portion of the instruction. It emphasized that if the controlled substance is in a place over which the defendant does not have control, the State can still prove constructive 3

4 possession of the controlled substance, if the State proves that the defendant had knowledge that the controlled substance was within [his] [her] presence and that the defendant had control over the substance. Finally, the committee addressed permissive presumption created in section (3), Florida Statutes. The majority of the committee agreed to using permissive presumption and voted to approve new language to permit the jury to presume that the defendant was aware of the illegal nature of the controlled substance, if they found that the defendant was in actual or constructive possession of the controlled substance. The minority disagreed and preferred the use of permissive inference. They argued that the proposal and the statute were subject to constitutional attack because they created a mandatory rebuttable presumption. They further argued that an inference on an element is constitutional, but a rebuttable presumption on an element is not. (Appendix C Part 3) A final vote on the Possession instruction was taken July The committee approved its insertion into all fifteen drug abuse instructions, (Appendix C Part 1) Report (SC ) was submitted August 18, The instructions were published in The Florida Bar News on October 15, Comments were received from Mr. Bart Schneider, Assistant State Attorney, Eighteenth Judicial Circuit, and the Florida Association of Defense Lawyers (FACDL). (Appendix C Part 4) The comments were reviewed in December Mr. Schneider s comments were not discussed. The committee, however, agreed with most of FACDL s suggestions concerning instructions , amending the word controlled substance to paraphernalia and adding some statutory references. The Motion to Amend was granted February 17, Upon further review of the instructions, it was noted that instructions , relating to the trafficking of certain controlled substances, required further amendments to conform to the statute. The committee amended the instructions in August 2006, to update the weights, amounts, or form of the controlled substance that qualifies it as a trafficking offense. The amended instructions were filed September 6,

5 The amended proposed instructions, , can be found at Appendix A. As directed by the Court, a side-by-side comparison of each amended instruction to the Standard Jury Instructions in Criminal Cases, Fifth Edition and the Supreme Court s website, was filed September 6, The proposals were read-against the instructions on the website and are, therefore, the same as the proposals in the third column of the side-by-side comparison, except for Appendix B. Lewd and Lascivious Battery The Supreme Court released opinion SC in March 2004, referring new instructions for lewd and lascivious back to the committee for further study. The Court requested the committee to... reexamine the proposed instructions in light of section , subsections (2) and (3), Florida Statutes (2003). The Court further asked the committee to... revise the proposed instructions, where appropriate, to reflect the enumerated prohibited defenses as well as the other specified circumstances which cannot be raised as defenses to crimes charged under section Revised instructions were reviewed in July The following paragraph was added to each of the six proposed new instructions: The defendant s ignorance of victim s age, victim s misrepresentation of his or her age, or the defendant s bona fide belief of victim s age is not a defense to the crime charged. The committee approved the addition of this paragraph to each instruction and passed the six new instructions. The instructions for lewd and lascivious behavior are hereby resubmitted to the Court. They can be found at Appendix B. 1 Committee staff was recently alerted that a criminal jury instruction approved in SC94788, March 30, 2000, was never updated in the Standard Jury Instructions in Criminal Cases, bound editions. Subsequently, it was not posted on the website. The opinion was reviewed by staff, and several approved instructions were found that were not updated, in whole or in part. These instructions were immediately updated on the website using the opinion document. Drug abuse instruction 25.6 was one of these instructions. The proposal for 25.6 in this report mirrors the instruction on the website; however, it will not mirror the proposal in the side-by-side, due to the recent change. 5

6 Respectfully submitted, this day of, The Honorable Terry David Terrell First Judicial Circuit Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases M. C. Blanchard Judicial Center 190 W. Government Street Pensacola, Florida Florida Bar Number

7 CERTIFICATE OF FONT SIZE I hereby certify that this brief has been prepared using Times New Roman 14 point font in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). furnished to: CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing instrument has been Ms. Paula S. Sanders FACDL Amicus Curiae Committee Office of the Public Defender 301 South Monroe Street Tallahassee, Florida Mr. Michael Ufferman FACDL Amicus Curiae Committee Michael Ufferman Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida Mr. Bart Schneider Bart Schneider PA 529 N. Magnolia Ave. Orlando, Florida 3280 by mail delivery this day of September, THE HONORABLE TERRY D. TERRELL Chair, Committee on Standard Jury Instructions in Criminal Cases 7