          Supreme Court of Florida
                                   ____________

                                   No. SC19-549
                                   ____________


   IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                       REPORT 2019-04.

                                December 19, 2019

PER CURIAM.

      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 new and amended standard

instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee proposes amending standard criminal jury instructions

10.7(a) (Throwing, Making, Placing, Projecting, or Discharging Destructive

Device), 10.7(b) (Throwing, Making, Placing, Projecting, or Discharging

Destructive Device), 10.7(c) (Throwing, Making, Placing, Projecting, or

Discharging Destructive Device), and 10.13 (Shooting or Throwing [A Missile]

[Stone] [Hard Substance] [At] [Within] [Into] [In] a[n] [Building] [Vehicle]

[Vessel] [Aircraft]). All of the proposals were published in The Florida Bar News.
No comments were received by the Committee. After the Committee filed its

report, the Court did not publish the proposals for comment.

      Having considered the Committee’s report, we authorize for publication and

use standard jury instructions 10.7(a), 10.7(b), 10.7(c), and 10.13. We discuss the

more significant amendments below.

      First, the definition of “willfully” is added in instructions 10.7(a), 10.7(b),

and 10.7(c) to define the term as “intentionally, knowingly, and purposely,” which

tracks other standard jury instructions defining the term. See, e.g., Fla. Std. Jury

Instr. (Crim.) 10.7(d) (Possessing, Throwing, Making, Placing, Projecting, or

Discharging a Destructive Device Resulting in Death).

      Next, the titles of instructions 10.7(a), 10.7(b), and 10.7(c) are amended to

include “possessing” to track section 790.161, Florida Statutes (2018), and the

concept of “possession,” as authorized in In re Standard Jury Instructions in

Criminal Cases—Report 2017-03, 238 So. 3d 182 (Fla. 2018), is also added to

instructions 10.7(a), 10.7(b), and 10.7(c).

      In instruction 10.7(b), “person” is added in element 2a and “another person”

is substituted for “(victim)” in element 2b to track the applicable statutory

provisions. See § 790.161(2), Fla. Stat. (2018).




                                         -2-
      Instruction 10.7(c) is amended to add “(Defendant)” to element one and

“person” to element two to better tie the elements together and track the language

of section 790.161(3), Florida Statutes (2018).

      Finally, instruction 10.13 is amended to include “shot a firearm that would

produce death or great bodily harm” as an optional element based upon case law

interpreting section 790.19, Florida Statutes (2018). See Valdes v. State, 3 So. 3d

1067 (Fla. 2009); Jefferson v. State, 927 So. 2d 1037 (Fla. 4th DCA 2006); Horn v.

State, 677 So. 2d 320 (Fla. 1st DCA 1996), Jones v. Singletary, 621 So. 2d 760

(Fla. 3d DCA 1993). A comment is added by the Committee that addresses the use

of a firearm as an element of the offense as it relates to section 775.087(1) and (2),

Florida Statutes (2018), which deal with reclassification and sentencing guidelines.

Instruction 10.13 also is amended to include definitions of “firearm” and “great

bodily harm” as authorized in In re Standard Jury Instructions in Criminal Cases -

Report 2018-14, 267 So. 3d 980 (Fla. 2019).

      The amended criminal jury instructions, as set forth in the appendix to this

opinion, are hereby authorized for publication and use. 1 New language is indicated



       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
                                         -3-
by underlining, and deleted language is indicated by struck-through type. 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. We further 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. The instructions as set forth in the appendix shall be

effective when this opinion becomes final.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.

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

Original Proceeding – Supreme Court Committee on Standard Jury Instructions in
Criminal Cases

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




resolved by reference to the published opinion of this Court authorizing the
instruction.

                                         -4-
                                  APPENDIX

10.7(a) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
            OR DISCHARGING A DESTRUCTIVE DEVICE
                       § 790.161(1), Fla._Stat.

      To prove the crime of (crime charged), the State must prove the
following element beyond a reasonable doubt:

      (Defendant) willfully and unlawfully

                  [made]
                  [possessed]
                  [threw]
                  [placed]
                  [projected]
                  [discharged]
                  [attempted to [make] [possess] [throw] [place] [project]
                  [discharge]]

      a destructive device.

      Definition
      A “"destructive device"” is defined as (adapt from § 790.001(4),
Fla._Stat., as required by the allegations).

      “Willfully” means intentionally, knowingly, and purposely.
      Possession. Give if applicable.
      To prove (defendant) “possessed a destructive device,” the State must
prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the
destructive device, and b) intentionally exercised control over that destructive
device.
      Give if applicable.
      Control can be exercised over a destructive device whether the
destructive device is carried on a person, near a person, or in a completely
separate location. Mere proximity to a destructive device does not establish
that the person intentionally exercised control over the destructive device in
the absence of additional evidence. Control can be established by proof that

                                      -5-
(defendant) had direct personal power to control the destructive device or the
present ability to direct its control by another.
     Joint possession. Give if applicable.
     Possession of a destructive device may be sole or joint, that is, two or
more persons may possess a destructive device.


                            Lesser Included Offenses

      No lesser included offenses have been identified for this offense.

                                    Comment

      This instruction was adopted in 1981 and was amended in 1989, and 1992,
and 2019.



10.7(b) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
            OR DISCHARGING A DESTRUCTIVE DEVICE
   [WITH INTENT TO DO [BODILY HARM] [PROPERTY DAMAGE]]
 [RESULTING IN DISRUPTION OF [GOVERNMENTAL OPERATIONS]
   [COMMERCE] [THE PRIVATE AFFAIRS OF ANOTHER PERSON]]
                       § 790.161(2), Fla._Stat.

      To prove the crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:

      1.    (Defendant) willfully and unlawfully

                   [made]
                   [possessed]
                   [threw]
                   [placed]
                   [projected]
                   [discharged]
                   [attempted to [make] [possess] [throw] [place] [project]
                   [discharge]]


                                       -6-
            a destructive device.

      Give those parts of paragraphelement 2 as applicable.
   2. a. The(Defendant’s) act was committed with the intent to

                  [do bodily harm to another person].
                  [do property damage].

         b. The(Defendant’s) act resulted in

                  [a disruption of governmental operations].
                  [a disruption of commerce].
                  [a disruption of the private affairs of (victim)another
                  person].

      Definition
      A “"destructive device"” is defined as (adapt from § 790.001(4),
Fla._Stat., as required by the allegations).

      “Willfully” means intentionally, knowingly, and purposely.
      Possession. Give if applicable.
      To prove (defendant) “possessed a destructive device,” the State must
prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the
destructive device, and b) intentionally exercised control over that destructive
device.
      Give if applicable.
      Control can be exercised over a destructive device whether the
destructive device is carried on a person, near a person, or in a completely
separate location. Mere proximity to a destructive device does not establish
that the person intentionally exercised control over the destructive device in
the absence of additional evidence. Control can be established by proof that
(defendant) had direct personal power to control the destructive device or the
present ability to direct its control by another.
     Joint possession. Give if applicable.
     Possession of a destructive device may be sole or joint, that is, two or
more persons may possess a destructive device.


                                      -7-
                           Lesser Included Offenses

 POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
  OR DISCHARGING DESTRUCTIVE DEVICE, ETC. — 790.161(2)
CATEGORY ONE            CATEGORY TWO       FLA. STAT. INS. NO.
Possessing, throwing,                      790.161(1) 10.7(a)
making placing,
projecting, or
discharging destructive
device
                        Aggravated assault 784.021    8.2
                        Assault            784.011    8.1

                                    Comment

      This instruction was adopted in 1992 and amended in 2019.



10.7(c) POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
     OR DISCHARGING A DESTRUCTIVE DEVICE RESULTING IN
   [BODILY HARM TO ANOTHER PERSON] [PROPERTY DAMAGE]
                       § 790.161(3), Fla._Stat.

      To prove the crime of (crime charged), the State must prove the
following two elements beyond a reasonable doubt:

      1.    (Defendant) willfully and unlawfully

                  [made]
                  [possessed]
                  [threw]
                  [placed]
                  [projected]
                  [discharged]
                  [attempted to [make] [possess] [throw] [place] [project]
                  [discharge]]

            a destructive device.
                                      -8-
      2.    The(Defendant’s) act resulted in

                  [bodily harm to another person].
                  [property damage].

      Definition
      A “"destructive device"” is defined as (adapt from § 790.001(4),
Fla._Stat., as required by the allegations).

      “Willfully” means intentionally, knowingly, and purposely.
      Possession. Give if applicable.
      To prove (defendant) “possessed a destructive device,” the State must
prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the
destructive device, and b) intentionally exercised control over that destructive
device.
      Give if applicable.
      Control can be exercised over a destructive device whether the
destructive device is carried on a person, near a person, or in a completely
separate location. Mere proximity to a destructive device does not establish
that the person intentionally exercised control over the destructive device in
the absence of additional evidence. Control can be established by proof that
(defendant) had direct personal power to control the destructive device or the
present ability to direct its control by another.
     Joint possession. Give if applicable.
     Possession of a destructive device may be sole or joint, that is, two or
more persons may possess a destructive device.




                                      -9-
                          Lesser Included Offenses

 POSSESSING, THROWING, MAKING, PLACING, PROJECTING,
   OR DISCHARGING DESTRUCTIVE DEVICE RESULTING IN
       [BODILY HARM TO ANOTHER PERSON] [PROPERTY
                        DAMAGE]— 790.161(3)
CATEGORY ONE            CATEGORY TWO            FLA. STAT. INS. NO.
Possessing, throwing,                           790.161(1) 10.7(a)
making, placing,
projecting, or
discharging destructive
device
                        Possessing, throwing, 790.161(2)   10.7(b)
                        making, placing,
                        projecting, or
                        discharging destructive
                        device, etc.
                        Aggravated assault      784.021    8.2
                        Assault                 784.011    8.1

                                  Comment

      This instruction was adopted in 1992 and amended in 2019.



  10.13 SHOOTING OR THROWING A [MISSILE] [STONE] [HARD
SUBSTANCE] [AT] [WITHIN] [INTO] [IN] A[N] [BUILDING] [VEHICLE]
                    [VESSEL] [AIRCRAFT]
                       § 790.19, Fla. Stat.

      To prove the crime of (crime charged), the State must prove the
following three elements beyond a reasonable doubt:

     Give 1a and/or 1b1a–1c as applicable.
     1.    (Defendant)

                  a. [shot] [or] [threw] a missile that would produce death or
                     great bodily harm.

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                  b. hurled or projected a stone or other hard substance that
                     would produce death or great bodily harm.

                  *c. shot a firearm that would produce death or great bodily
                     harm.

      Give 2a–2f as applicable.
      2.    [He] [She] did so [at] [within] [into] [in]

                  a. a public or private building, occupied or unoccupied.

                  b. a public or private bus, that was being used or occupied
                     by any person.

                  c. a train, locomotive, railway car, caboose, cable railway
                     car, street railway car, or monorail car that was being
                     used or occupied by any person.

                  d. a vehicle of any kind that was being used or occupied by
                     any person.

                  e. a boat, vessel, ship, or barge lying in or plying the
                     waters of this state.

                  f. an aircraft flying through the air space of this state.


      3.    The defendant’s act was done wantonly or maliciously.

       State v. Kettell, 980 So. 2d 1061 (Fla. 2008).
       “Wantonly” means consciously and intentionally, with reckless
indifference to consequences and with the knowledge that damage is likely to
be done to some person.

       State v. Kettell, 980 So. 2d 1061 (Fla. 2008).
       “Maliciously” means wrongfully, intentionally, without legal
justification or excuse, and with the knowledge that injury or damage will or
may be caused to another person or the property of another person.


                                      - 11 -
       Give if applicable. § 790.001(6), Fla. Stat.
       A “firearm” means any weapon [including a starter gun] which will, is
designed to, or may readily be converted to expel a projectile by the action of
an explosive; [the frame or receiver of any such weapon;] [any firearm
muffler or firearm silencer;] [any destructive device;] [any machine gun].
[The term “firearm” does not include an antique firearm unless the antique
firearm is used in the commission of another crime. An “antique firearm” is
(insert definition in 790.001(1), Fla. Stat.)]
     Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).
     “Great bodily harm” means great as distinguished from slight, trivial,
minor, or moderate harm, and as such does not include mere bruises.

      Give if applicable. Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984).
      It is not necessary for the State to prove a defendant acted with
malevolence toward a vehicle or structure itself if the State proved [he] [she]
acted with a wanton or malicious attitude directed toward an individual
within or near the vehicle or structure.

                            Lesser Included Offenses

   SHOOTING OR THROWING A [MISSILE] [STONE] [HARD
   SUBSTANCE[[AT] [WITHIN] [INTO] [IN] A[N] [BUILDING]
        [VEHICLE] [VESSEL] [AIRCRAFT] — 790.19
CATEGORY ONE     CATEGORY TWO           FLA. STAT. INS. NO.
None
                 Attempt                777.04(1)  5.1
                 Criminal Mischief      806.13     12.4
                 Discharging firearm in 790.15     10.6
                 public

                                    Comments

       *According to the Fourth District Court of Appeal, § 790.19, Fla. Stat.,
cannot be reclassified pursuant to § 775.087(1), Fla. Stat., because the use of a
weapon or a firearm is an essential element of the crime. Jefferson v. State, 927 So.
2d 1037 (Fla. 4th DCA 2006). However, in Robertson v. State, 807 So. 2d 708
(Fla. 4th DCA 2002), the Fourth District also held it was proper to add 18 firearm
points on the scoresheet because possession of a firearm is not an essential element
of the crime. The First District Court of Appeal held in Horn v. State, 677 So. 2d
                                       - 12 -
320 (Fla. 1st DCA 1996), that the use of a firearm was a necessary element of
shooting at an occupied vehicle in violation of § 790.19, Fla. Stat. The Third
District Court of Appeal has also held that the use of a firearm is a necessary
element of shooting into an occupied vehicle. Jones v. Singletary, 621 So. 2d 760
(Fla. 3d DCA 1993).
      Trial judges should therefore consider whether to instruct on element #1c
based on the charging document and the evidence.
      This instruction was adopted in 1981 and amended in 2018 [253 So. 3d
1024] and 2019.




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