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 Report 2007-4 Committee on Standard Jury Instructions in Criminal Cases To the Chief Justice and Justices of the Supreme Court of Florida: This report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases on the Supreme Court s website at http://www.floridasupremecourt.org/jury_instructions.shtml, is filed pursuant to Article V, section 2(a), Florida Constitution. The committee proposes new criminal jury instructions for failure to register as a sexual offender and for failure to register as a sexual predator. The proposals are divided into two distinct sets that match the applicable Florida Statutes. The first set of proposals covers sexual offenders and can be found at Appendix A (Sexual Offenders proposals one through nine). The second set of proposals covers sexual predators and can be found at Appendix B (Sexual Predators one through twelve). The instructions were published in The Florida Bar News on November 1, 2006. Comments were received from Mr. Richard L. Polin, Assistant Attorney General, Criminal Appeals, Miami, and Mr. Jay Thomas, Staff Attorney to the Second District Court of Appeal. The comments and an e-mail dialogue between Mr. Thomas and a staff member of the Senate Judiciary Committee can be found at Appendix C (three parts). The particular comments are reported separately in the explanation for each proposed instruction. The following new instructions are proposed by the committee.
Sexual Offenders Proposal 1 11.14 Failure to Register as a Sexual Offender (Initially Register) Proposal 2 11.14(a) Failure to Register as a Sexual Offender (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel, or Houseboat) Proposal 3 11.14(b) Failure to Register as a Sexual Offender (Failure to Comply with Registration of Employment or Enrollment at an Institution of Higher Learning) Proposal 4 11.14(c) Failure to Register as a Sexual Offender (Failure to Report to Department of Highway Safety and Motor Vehicles) Proposal 5 11.14(d) Failure to Register as a Sexual Offender (Failure to Report Change of Name or Address within the State or Jurisdiction) Proposal 6 11.14(e) Failure to Register as a Sexual Offender (Failure to Report Change of Residence to Another State or Jurisdiction) Proposal 7 11.14(f) Failure to Register as a Sexual Offender (Failure to Report Intent to Remain within the State or Jurisdiction) 2
Proposal 8 11.14(g) Failure to Register as a Sexual Offender (Failure to Report Twice a Year) Proposal 9 11.14(h) Sexual Offender Definitions Proposal 1 Sexual Predators 11.15 Failure to Register as a Sexual Predator (Initially Register In Custody, Control or under the Supervision of the Department of Corrections) Proposal 1(A) 11.15(a) Failure to Register as a Sexual Predator (Initially Register Not in Custody, Control or under Supervision of the Department of Corrections or a Private Correctional Facility) Proposal 2 11.15(b) Failure to Register as a Sexual Predator (Failure to Comply with Registration Requirements) Proposal 3 11.15(c) Failure to Register as a Sexual Predator (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home) Proposal 4 11.15(d) Failure to Register as a Sexual Predator (Failure to Comply with Registration of Enrollment or Employment in Institutions of Higher Learning) 3
Proposal 5 11.15(e) Failure to Register as a Sexual Predator (Failure to Report to Department of Highway Safety and Motor Vehicles) Proposal 6 11.15(f) Failure to Register as a Sexual Predator (Failure to Provide Other Necessary Information Requested by Department of Law Enforcement) Proposal 7 11.15(g) Failure to Register as a Sexual Predator (Failure to Report Change of Name or Address within the State or Jurisdiction) Proposal 8 11.15(h) Failure to Register as a Sexual Predator (Failure to Respond to Address Verification) Proposal 9 11.15(i) Failure to Register as a Sexual Predator (Failure to Report Intent to Move to Another State or Jurisdiction) Proposal 10 11.15(j) Failure to Register as a Sexual Predator (Failure to Report Intent to Remain within the State or Jurisdiction) Proposal 11 11.15(k) Failure to Register as a Sexual Predator (Failure to Register Twice a Year) Proposal 12 11.15(l) Sexual Predator Definitions 4
I. Overview The Supreme Court Committee on Standard Jury Instructions in Criminal Cases met on November 19, 2004. The 2004 Florida Legislature had enacted Chapter 2004-371, Laws of Florida. The enactment amended several Florida Statutes, including the registration of sexual offenders found in section 943.0435, Florida Statutes. The members discussed whether any committee member had been involved in a trial where a defendant was charged by Indictment or Information with the offense of failure to register as a sexual offender. All of the offenses under the above referenced section were either second or third degree felonies, and only the 2001 and 2003 legislative sessions had failed to enact laws that amended the statute that was first enacted in 1997. No one could recall participating in such a trial but the committee unanimously agreed that an instruction should be drafted. The chair of the committee, Judge Dedee Costello, appointed Judge Michael Weatherby to begin drafting an instruction to cover s. 943.0435, Florida Statutes. The committee through Judge Weatherby worked on draft proposals and continually amended them for almost two years. The Florida Legislature amended the relevant statutes in 2005 (Chapter 2005-28, Laws of Florida) and in 2006 (Chapter 2006-200, Chapter 2006-235, and Chapter 2006-640, Laws of Florida). At the August 25, 2006 meeting, the committee approved a set of standard instructions for sexual offender and sexual predator registration. The committee met on February 23, 2007. The comments from Mr. Polin and Mr. Thomas were considered by the committee. Certain recommendations were accepted, while others were rejected. The final proposals attached to this report reflect the work of the committee, including the changes recommended by Mr. Thomas and Mr. Polin. II. Explanation of Proposals Sexual Offenders Proposal 1 11.14 Failure to Register as a Sexual Offender (Initially Register) The proposal tracks the statutory language found in s. 943.0435(2), Florida Statutes. The committee recognized that in many instances the 5
parties will stipulate that the defendant is a sexual offender. The caveat to the court is included in the instruction to ensure that the proper colloquy is conducted in light of existing case law. Mr. Thomas proposed language regarding the use of a post office box in lieu of giving a residential address. The committee reworked his suggestion to state: The defendant shall provide a residential address. A post office box shall not be provided instead of a physical residential address. Section 943.0435(2)(b), Florida Statutes, requires the offender to provide a name, date of birth, race, sex, height, weight, hair and eye color, etc., when registering as a sexual offender. Mr. Thomas suggested the following language: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. Mr. Thomas felt that element 3c is satisfied only if the evidence shows that the defendant failed to provide every item in the list. The committee disagreed and did not adopt the recommendation. It was the committee s view that if the defendant failed to provide any one of the items listed, the statute would be violated, and therefore, it was not necessary for a jury to make a unanimous finding with regard to each item listed in the statute. Proposal 2 11.14(a) Failure to Register as a Sexual Offender (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, Manufactured Home, Vessel, or Houseboat) This proposal tracks the statutory language found in s. 943.0435(2)(b)1, Florida Statutes. The same stipulation language found in proposal 1 is included. This statute requires the offender to provide a litany of information, including but not limited to, the vehicle identification number, the license tag number, the registration number, etc., if the residence is a motor home, motor vehicle, mobile home, or manufactured home. Mr. Thomas opined that these separate items also required a unanimous finding by the jury as to 6
each separate item. Again, the committee disagreed and chose not to include the proposed unanimous verdict language. Proposal 3 11.14(b) Failure to Register as a Sexual Offender (Failure to Comply with Registration of Employment or Enrollment at an Institution of Higher Learning) proposals. An effort was made by the committee to track the statutory language found in s. 943.0435(2)(b)2, Florida Statutes. This section of the statute also requires the offender to provide a host of information including educational institution information and employment information. The committee disagreed with the suggestion of Mr. Thomas regarding a unanimous verdict being required for every item listed in the Information or Indictment (see the quoted language of Mr. Thomas in proposal 1, above). The committee believed that proof of any one item was sufficient to sustain a conviction. Proposal 4 11.14(c) Failure to Register as a Sexual Offender (Failure to Report to Department of Highway Safety and Motor Vehicles) proposals. Section 943.0435(3), Florida Statutes requires a sexual offender to report to the Department of Highway Safety and Motor Vehicles within 48 hours after registration with the sheriff, in order to obtain a driver s license or an identification card. The offender must provide proof the he or she has registered as a sexual offender. The proposed instruction tracks this statutory language. Mr. Thomas suggested that the proposed instruction include a provision for nonpayment of the costs of a license or registration card. The committee felt this additional language was not necessary since the Department of Highway Safety and Motor Vehicles would not provide this type of identification to an offender unless the fees were paid at the time of processing the request for a license or identification card. Mr. Thomas also suggested expanding the proposed instruction to include the failure of the offender to provide a set of fingerprints if requested and submit to the taking of a photograph. The committee felt that if the offender refused to 7
provide fingerprints or consent to a photograph being taken, a license or ID card would not be issued. In that event, the offender would violate the statute by failing to obtain the license or identification. Mr. Thomas suggested that the court give the following instruction: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. The committee rejected this suggestion since a failure to report any required piece of information would violate the statute. Proposal 5 11.14(d) Failure to Register as a Sexual Offender (Failure to Report Change of Name or Address within the State or Jurisdiction) proposals. This proposal tracks the statutory language found in s. 943.0435(4), Florida Statutes. The statute requires the offender to report any change of temporary or permanent address, change of name due to marriage or other legal process, within 48 hours. Mr. Thomas suggested that the verdict form should provide for a unanimous finding by the jury that at the defendant had failed to provide at least one of these items listed in the statute. His suggestion reads as follows: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. The committee voted not to accept this recommendation. It was the opinion of the members that if the defendant failed to provide any one of the items listed in the statute, there would be a violation of the statute. Proposal 6 11.14(e) Failure to Register as a Sexual Offender (Failure to Report Change of Residence to Another State or Jurisdiction) proposals. 8
The proposal tracks the statutory language found in s. 943.0435(7), Florida Statutes. Proposal 7 11.14(f) Failure to Register as a Sexual Offender (Failure to Report Intent to Remain within the State or Jurisdiction) This proposal contains the same stipulation language found in all the other proposals for sexual offenders. The proposal tracks the statutory language found in s. 943.0435(8), Florida Statutes. Proposal 8 11.14(g) Failure to Register as a Sexual Offender (Failure to Report Twice a Year) This proposal contains the same stipulation language found in all the other proposals for sexual offenders. The proposal tracks the statutory language found in s. 943.0435(14)(a), Florida Statutes. Proposal 9 11.14(h) Sexual Offender Definitions The committee voted to provide to the trial court a set of definitions that may be necessary in the event the jury had questions about the meaning of certain words found in the standard instructions. The definition of sexual offender tracks the statutory definition and indicates that a person qualifies as a sexual offender on or after October 1, 1997, the effective date of the legislation that created s. 943.0435, Florida Statutes. The residency definitions are identical to those found in s. 775.21, Florida Statutes, as referenced in s. 943.0435(1)(c), Florida Statutes. The definitions for institution of higher education and change in enrollment or employment status are copied from s. 943.0435(1)(d) and (e), respectively. 9
III. Explanation of Proposals Sexual Predators Proposal 1 11.15 Failure to Register as a Sexual Predator (Initially Register In Custody, Control or under the Supervision of the Department of Corrections) The proposal tracks the statutory language found in s. 775.21(6)(b), Florida Statutes. The committee recognized that in many instances the parties will stipulate that the defendant is a sexual predator. The caveat to the court is included in the instruction to ensure that the proper colloquy is conducted in light of existing case law. Proposal 1(A) 11.15(a) Failure to Register as a Sexual Predator (Initially Register Not in Custody, Control or under Supervision of the Department of Corrections or a Private Correctional Facility) proposals for the registration requirements of sexual predators (see proposal 1, sexual predators, for the committee s rationale for this note to the trial court). The proposal tracks the statutory language found in s. 775.21(6)(e), Florida Statutes. Proposal 2 11.15(b) Failure to Register as a Sexual Predator (Failure to Comply with Registration Requirements) The proposal tracks the statutory language located in s.775.21(6)(a)1, Florida Statutes. Mr. Thomas proposed language regarding the use of a post office box in lieu of giving a residential address. The committee reworked his suggestion to state: The defendant shall provide a residential address. A post office box shall not be provided instead of a physical residential address. 10
Section 775.21(6)(a)1, Florida Statutes, requires the offender to provide a name, date of birth, race, sex, height, weight, hair and eye color, etc., when registering as a sexual predator. Mr. Thomas suggested the following language: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. Mr. Thomas felt that element 3 is satisfied only if the evidence shows that the defendant failed to provide every item in the list. The committee disagreed. It was the committee s view that if the defendant failed to provide any one of the items listed, the sexual predator registration statute would be violated. Proposal 3 11.15(c) Failure to Register as a Sexual Predator (Failure to Comply with Registration of a Residence, Motor Vehicle, Trailer, Mobile Home, or Manufactured Home) This proposal tracks the statutory language found in s. 775.21(6)(a)1.a., Florida Statutes. This statute requires the offender to provide a litany of information including but not limited to the vehicle identification number, the license tag number, the registration number, etc., if the residence is a motor home, motor vehicle, mobile home, or manufactured home. Mr. Thomas opined that these separate items also required a unanimous finding by the jury as to each separate item. Again, the committee disagreed and chose not to include the proposed unanimous verdict language. Proposal 4 11.15(d) Failure to Register as a Sexual Predator (Failure to Comply with Registration of Enrollment or Employment in Institutions of Higher Learning) Section 775.21(6)(a)1.b., Florida Statutes, requires the sexual predator to provide a host of information including educational institution 11
information and employment information. The proposal tracks the statutory language. The committee disagreed with the suggestion of Mr. Thomas regarding a unanimous verdict being required for every item listed in the Information or Indictment. See the quoted language of Mr. Thomas in proposal 2, 11.15(b), above. The committee believed that proof of any one item was sufficient to sustain a conviction. Proposal 5 11.15(e) Failure to Register as a Sexual Predator (Failure to Report to Department of Highway Safety and Motor Vehicles) Section 775.21(6)(f), Florida Statutes, requires a sexual predator to report to the Department of Highway Safety and Motor Vehicles within 48 hours after registration with the sheriff, in order to obtain a driver s license or an identification card. The offender must identify himself or herself as a sexual predator. The proposed instruction tracks this statutory language. Mr. Thomas suggested that the proposed instruction include a provision for nonpayment of the costs of a license or identification card. The committee felt this additional language was not necessary since the Department of Highway Safety and Motor Vehicles would not provide this type of identification unless the fees were paid at the time of processing the request for a license or identification card. Mr. Thomas also suggested expanding the proposed instruction to include the failure of the sexual predator to provide a set of fingerprints if requested and submit to the taking of a photograph. The committee felt that if the offender refused to provide fingerprints or consent to a photograph being taken, a license or ID card would not be issued. In that event, the offender would violate the statute by failing to obtain the license or identification card. This statute requires the offender to provide a litany of information to the Department of Highway Safety and Motor Vehicles including but not limited to the vehicle identification number, the license tag number, the registration number, etc. if the residence is a motor home, motor vehicle, mobile home, or manufactured home. Other information is required if the 12
offender resides on a houseboat or live-aboard vessel. Mr. Thomas opined that these separate items also require a unanimous finding by the jury as to each separate item when the sexual predator is charged with a statutory violation. The committee disagreed and chose not to include the proposed unanimous verdict language. Proposal 6 11.15(f) Failure to Register as a Sexual Predator (Failure to Provide Other Necessary Information Requested by Department of Law Enforcement) Section 775.21(6)(a)2, Florida Statutes, requires a sexual predator to provide any other information necessary to the Florida Department of Law Enforcement, including criminal and corrections records; non-privileged personnel and treatment records; and evidentiary genetic markers when available. The committee included both the sheriff and FDLE in the event the predator had to register with one or both entities. Mr. Thomas suggested the following language: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. The committee felt this instruction was not necessary since failure to provide any information required by the statute would be a violation of law. The instruction is worded in such a way that the court can pick the appropriate information alleged to have not been provided that is listed in the Indictment or Information when reading the instruction to the jury. Proposal 7 11.15(g) Failure to Register as a Sexual Predator (Failure to Report Change of Name or Address within the State or Jurisdiction) This proposal tracks the statutory language found in s. 775.21(6)(g), Florida Statutes. The statute requires the sexual predator to report any change of temporary or permanent address, change of name due to marriage 13
or other legal process, within 48 hours. Mr. Thomas suggested that the verdict form should provide for a unanimous finding by the jury that the defendant had failed to provide at least one of these items listed in the statute. His suggestion reads as follows: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. The committee voted not to accept this recommendation. It was the opinion of the members that if the defendant failed to provide any one of the items listed in the subsection 6(g), there would be a violation of the statute. Proposal 8 11.15(h) Failure to Register as a Sexual Predator (Failure to Respond to Address Verification) This proposal tracks the statutory language found in s. 775.21(10)(a), Florida Statutes. It is a third degree felony for a sexual predator to fail to respond to any address verification correspondence from the Florida Department of Law Enforcement within three weeks of the date of the correspondence. Proposal 9 11.15(i) Failure to Register as a Sexual Predator (Failure to Report Intent to Move to Another State or Jurisdiction) The proposal tracks the statutory language found in s. 775.21(6)(i), Florida Statutes. A sexual predator who intends to leave the State of Florida must report to the sheriff within 48 hours before the date the sexual predator intends to leave, and must provide the sheriff with the address, municipality, county, and state of intended residence. Mr. Thomas suggested that the Verdict Form should require a unanimous finding by the jury that the predator failed to provide required information such as the address, municipality, county, and state of intended residence. The committee disagreed. It is the opinion of the committee that the failure to provide any of those items violates the statute. In instruction is 14
drafted in such a way to permit the trial judge to pick the item or items listed in the Information or Indictment and read the item the predator failed to report to the jury. Proposal 10 11.15(j) Failure to Register as a Sexual Predator (Failure to Report Intent to Remain within the State or Jurisdiction) The proposal tracks the statutory language found in s. 775.21(6)(j), Florida Statutes. Proposal 11 11.15(k) Failure to Register as a Sexual Predator (Failure to Register Twice a Year) Mr. Thomas suggested that the following language be inserted in the proposed instruction: Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide. The committed rejected this proposal. S. 775.21(8)(a), Florida Statutes, requires a sexual predator to reregister with the sheriff of the county where the offender resides. During the registration process, the predator must provide a laundry list of information to the sheriff. The committee believed that failure to provide any of the information to the sheriff constitutes a felony. The instruction is drafted in such a way that the trial judge can choose whatever items the prosecution has alleged were not provided, which are proved during the course of the trial. 15
Proposal 12 11.15(l) Sexual Predator Definitions The committee has proposed a set of definitions that are verbatim recitations of the definitions found in s. 775.21(2), Florida Statutes. The definition of sexual predator is taken from s. 775.21(4), Florida Statutes and closely tracks the statutory language. This set of definitions was approved by the committee via an electronic vote after receiving comments from Mr. Richard Polin. Mr. Polin submitted comments to the committee regarding the definitions via a letter to the committee dated November 25, 2006. Mr. Polin s letter refers to proposed instruction 11.15(k). This proposal has subsequently been changed to 11.15(l). The committee agreed with Mr. Polin and accepted his definition of sexual predator. It is noted that Mr. Polin would prefer that the definition of sexual predator as it relates to a pardon be omitted, even though he suggested its insertion in the definition. Mr. Polin noted that a pardon as to all the required qualifying predicate offenses would either lead to an order vacating the sexual predator designation or a dismissal of the failure to register charge before it got to a jury. Respectfully submitted this day of April, 2007. 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 32502-5773 Florida Bar Number 231630 16