In the Supreme Court of Florida. Supplemental Report (No ) of the Committee on Standard Jury Instructions (Criminal)

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1 In the Supreme Court of Florida In the matter of use by the trial courts of the Standard Jury Instructions (Criminal Cases) / Case No. SC Supplemental Report (No ) of the Committee on Standard Jury Instructions (Criminal) To the Chief Justice and Justices of the Supreme Court of Florida: This supplemental report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases is filed pursuant to article V, section 2(a), Florida Constitution. The committee proposes amendments to the instructions listed below as passed at the February 25, 2005 meeting. Proposal 1. Revised Instruction for Theft - Inferences Proposal 2. Revised Instruction for Felons Possessing Weapons and Ammunition Proposal 3. Revised Instruction for Dangerous Sexual Felony Offender Proposal 4. Revised Instructions for Cyberstalking Proposal 5. Revised Instruction for Possession of Burglary Tools Proposal 6. New Instruction for Damaging Wires in Furtherance of a Burglary The proposed revisions are provided in Appendix A. Words to be removed are shown by strike-through marks, and words to be added are shown by underlining. By direction of the Chief Justice, Proposals 1 through 6 have not been published in the Florida Bar News prior to submission to the Court.

2 Explanation of Proposals Proposal 1. Revised Instruction for Theft - Inferences In a memorandum to Tom Hall, Clerk of the Court, dated June 2, 2004, Laura Rush, General Counsel, Office of the State Courts Administrator, informed the Court and rules committees about new laws passed in 2004, which might require a change to a rule, form, or jury instruction. Chapter , Laws of Florida, amended section , Florida Statutes, creating an inference that a dealer who regularly deals in used property, who possesses stolen property with the name and phone number of the owner conspicuously displayed, knew or should have known that the property was stolen. Chapter was discussed at the November 19, 2004 meeting. Mr. Brinkmeyer was assigned to draft the inference instruction. His draft was presented to the committee at the February 25, 2005 meeting. It proposed an inference instruction to correspond to the changes made by Chapter It addition, it included new inference instructions for s , (3) and (4), Fla. Stat., since there were none before. The committee approved the proposal unanimously. Proposal 2. Revised Instruction for Felons Possessing Weapons and Ammunition In a memorandum to Tom Hall, Clerk of the Court, dated June 2, 2004, Laura Rush, General Counsel, Office of the State Courts Administrator, informed the Court and rules committees about new laws passed in 2004, which might require a change to a rule, form, or jury instruction. Chapter , Laws of Florida, added ammunition among the specified items for which possession by a felon or delinquent constitutes a felony of the second degree. The 2004 criminal laws listed in Ms. Rush s memorandum by Ms. Rush were discussed at the November 19, 2004 meeting. In response to Chapter , the committee agreed that the instruction Felons Possessing Weapons. should be revised. Judge Scaglione was asked to review the instruction and to make a recommendation to the committee at the next meeting. 2

3 At the meeting on February 25, 2005, Judge Scaglione presented an amended instruction He added the word Ammunition to the title, to the body of the instruction 2(a), and to the definitions as adapted from section , Florida Statutes. He also made some minor editing changes. The committee approved the proposal unanimously. Proposal 3. Revised Instruction for Dangerous Sexual Felony Offender Chapter , Laws of Florida, substantially reworded section , Florida Statutes, to define a dangerous sexual offender and provide for mandatory sentencing for such offenders. Ms. Zayas was assigned to draft an instruction for this change in the law. Ms. Zayas did not have a draft ready by the next meeting; however, she recommended that the instruction be similar to the robbery instruction and that the committee create an enhanced penalty or aggravator section for this offense. A first draft of this instruction was presented at the March 19, 2004 meeting. The burden of proof was discussed extensively by several members - whether the factors set forth in the statute needed to be established beyond a reasonable doubt or by a preponderance of the evidence. After this discussion, Ms. Zayas indicated that the draft contained reference to pre-apprendi law. The committee engaged in a discussion regarding Apprendi, whether it applies to substantive law or as an enhancement of the penalty. The proposal was tabled. Ms. Zayas presented a second draft at the July 9, 2004 meeting. The discussion again focused on this being a bifurcated proceeding. In light of Apprendi and Blakely, the committee opted for the burden of proof to be beyond a reasonable doubt. There was continued discussion on whether the law was a sentencing statute or a substantive offense. The committee voted 8-1 in favor of the amended proposal. There was one abstention. There was no discussion of this instruction at the November 19, 2004 meeting. A clean draft of the previously amended instruction was presented for a final vote at the meeting on February 25,

4 The committee made minor editing changes and the instruction passed unanimously. Proposal 4. Revised Instructions for Cyberstalking Chapter , Laws of Florida, amended section , Florida Statutes, to include cyberstalking as a variation of stalking. In a memorandum dated October 21, 2003, to the Standard Jury Instructions Committee, Mr. Dupee (then a member of the committee) proposed amending the existing stalking instructions to add a reference to cyberstalking and a definition of cyberstalking. At the meeting on March 19,2004, the committee approved in principle the changes to the stalking instructions to accommodate cyberstalking. The proposals were not on the agenda for the November 19, 2004 meeting. A clean draft of the four proposed instructions were reviewed again at the meeting on February 25, The committee passed the instructions unanimously. Proposal 5. Revised Instruction for Possession of Burglary Tools After the March 19, 2004 meeting, Judge Costello asked Mr. Skye to review instructions 12.1 through 14.5 for proper lesser offenses and other necessary or recommended amendments. In a memorandum, dated July 8, 2004, and presented to the committee at the meeting on July 9, 2004, he reported his recommendations, which included the instructions relating to burglary. The proposed instruction was on the agenda at the meeting on November 19, Mr. Skye commented that the reason for the order in which the elements were listed was not understood. It made no sense to list the most important element last. The elements were re-ordered so that the explanation of the charge read more logically. He combined two of the four paragraphs for ease of understanding and thus, the number of elements was reduced from four to three. The intention was not to change the substance of the instruction, only to make clarifying and stylistic revisions. The instruction was accepted as proposed and passed the committee with one dissenting vote. 4

5 It was reviewed again at the meeting on February 25, The proposal passed the committee unanimously. Proposal 6. New Instruction for Damaging Wires in Furtherance of a Burglary Chapter , Laws of Florida, prohibited the impairing or impeding of telephone service or electric power to a dwelling to facilitate a burglary. At the meeting on October 24, 2003, Mr. Skye was requested to draft an instruction. During the interim Mr. Dupee also drafted a proposed instruction. Both proposals were discussed at the meeting on July 9, 2004, with the focus being on the possible confusion caused by using the word conveyance in two different ways in the same instruction. In one place conveyance is used as a term synonymous with "transmission." In another place it is used as a term defining a "vehicle." It was determined that the words "convey" and conveyance should be deleted from the instruction as unnecessary, when they were used as a synonym for transit or transmission. The intent of the committee was to eliminate confusion ( convey is rarely used in place of transmit ) but at the same time, not to prohibit or prevent a request for the word s insertion when appropriate or necessary. The proposed instruction was passed as amended unanimously. The proposal was reviewed again at the meeting on February 25, 2005, and passed unanimously. Respectfully submitted, Dedee S. Costello Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases Fourteenth Judicial Circuit 300 East 4th Street Panama City, FL Florida Bar Number