          Supreme Court of Florida
                                  ____________

                                  No. SC19-1654
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                     REPORT 2019-08.

                                 January 16, 2020

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 the amended standard instructions for

publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

      The Committee proposes amending standard criminal jury instructions 8.6

(Stalking), 8.7(a) (Aggravated Stalking), 8.7(b) (Aggravated Stalking (Injunction

Entered)), 8.7(c) (Aggravated Stalking (Victim under 16 years of age)), and 8.7(d)

(Aggravated Stalking (Defendant previously sentenced for sex offense and was

prohibited from contacting victim)). The Committee filed its report after

publishing the proposals in The Florida Bar News. No comments were received

by the Committee.
      Having considered the Committee’s report, we amend the standard jury

instructions as proposed by the Committee and authorize them for publication and

use. All of the instructions are updated to include the amended definition for

“cyberstalk” based upon chapter 2019-167, section 31, Laws of Florida, which

amended section 784.048(1)(d), Florida Statutes (2019). In addition, instruction

8.7(b) is amended to move the citation to Seese v. State, 955 So. 2d 1145 (Fla. 4th

DCA 2007), from the comment section to above the definition for “maliciously.”

Finally, in instruction 8.7(d), the citation to Seese and the definition for

“maliciously” are added.

      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

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



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


                                          -2-
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.

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




                                         -3-
                                  APPENDIX

                                8.6 STALKING
                             § 784.048(2), Fla. Stat.

     To prove the crime of Stalking, the State must prove the following
element beyond a reasonable doubt:

       (Defendant) willfully, maliciously, and repeatedly [followed] [harassed]
[or] [cyberstalked] (victim).

      Definitions.
      § 784.048(1)(a), Fla. Stat.
      “Harass” means to engage in a course of conduct directed at a specific
person which causes substantial emotional distress to that person and serves
no legitimate purpose.

      § 784.048(1)(b), Fla. Stat.
      “Course of conduct” means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose. The term does not include constitutionally protected activity such as
picketing or other organized protests.

      Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
      “Willfully” means knowingly, intentionally and purposely.

       Give if applicable.
       § 784.048(1)(d), Fla. Stat.
       “Cyberstalk” means [to engage in a course of conduct to communicate,
or to cause to be communicated, words, images, or language by or through the
use of electronic mail or electronic communication, directed at a specific
person,] [or] [to access or attempt to access the online accounts or Internet-
connected home electronic systems of another person without that person’s
permission,] causing substantial emotional distress to that person and serving
no legitimate purpose.

                           Lesser Included Offenses

                          STALKING — 784.048(2)
CATEGORY ONE              CATEGORY TWO        FLA. STAT.              INS. NO.

                                      -4-
None
                            Attempt                  777.04(1)        5.1

                                      Comment

      This instruction was approved in 1995 [657 So. 2d 1152] and amended in
2007 [953 So. 2d 495], and 2013 [131 So. 3d 755], and 2020.



                       8.7(a) AGGRAVATED STALKING
                               § 784.048(3), Fla. Stat.

      To prove the crime of Aggravated Stalking, the State must prove the
following two elements beyond a reasonable doubt:

          1. (Defendant) willfully, maliciously, and repeatedly [followed]
             [harassed] [or] [cyberstalked] (victim); and

          2. (Defendant) made a credible threat to (victim).

      Definitions.
      § 784.048(1)(a), Fla. Stat.
      “Harass” means to engage in a course of conduct directed at a specific
person which causes substantial emotional distress to that person and serves
no legitimate purpose.

      § 784.048(1)(b), Fla. Stat.
      “Course of conduct” means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose. The term does not include constitutionally protected activity such as
picketing or other organized protests.

       Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
       “Willfully” means knowingly, intentionally and purposely.

       Give if applicable.
       § 784.048(1)(d), Fla. Stat.



                                        -5-
       “Cyberstalk” means [to engage in a course of conduct to communicate,
or to cause to be communicated, words, images, or language by or through the
use of electronic mail or electronic communication, directed at a specific
person,] [or] [to access or attempt to access the online accounts or Internet-
connected home electronic systems of another person without that person’s
permission,] causing substantial emotional distress to that person and serving
no legitimate purpose.

       § 784.048(1)(c), Fla. Stat.
       “Credible threat” means a verbal or nonverbal threat, or a combination
of the two, including threats delivered by electronic communication or implied
by a pattern of conduct, which places the person who is the target of the
threat in reasonable fear for his or her safety or the safety of his or her family
members or individuals closely associated with the person, and which is made
with the apparent ability to carry out the threat to cause such harm.

      It is not necessary for the State to prove that the person making the
threat had the actual intent to carry out the threat.

      Give if applicable.
      The present incarceration of the person making the threat is not a bar
to prosecution.

                           Lesser Included Offenses

          AGGRAVATED STALKING — 784.048(3)
CATEGORY ONE CATEGORY TWO           FLA. STAT.                        INS. NO.
Stalking                            784.048(2)                        8.6
             Attempt                777.04(1)                         5.1
             Assault                784.011                           8.1
             Improper exhibition of 790.10                            10.5
             dangerous weapon

                                   Comment

      This instruction was approved in 1995 [657 So. 2d 1152] and amended in
2007 [953 So. 2d 495], and 2013 [131 So. 3d 755], and 2020. to incorporate the
change in law effective October 1, 2012.



                                      -6-
                      8.7(b) AGGRAVATED STALKING
                              (Injunction Entered)
                              § 784.048(4), Fla. Stat.

      To prove the crime of Aggravated Stalking, the State must prove the
following three elements beyond a reasonable doubt:

         1. (Defendant) knowingly, willfully, maliciously, and repeatedly
            [followed] [harassed] [or] [cyberstalked] (victim).
      Give 2a or 2b or both as applicable.
         2. At the time of the [following] [harassing] [cyberstalking],
                      a. an injunction for protection against [repeat] [sexual]
                         [dating] [domestic] violence had been entered against
                         (defendant) for the benefit of (victim).
                      b. a court had imposed a prohibition of conduct on
                         (defendant) toward (victim) or (victim’s property).
         3. (Defendant) knew that the [injunction] [court-imposed prohibition
            of conduct] had been entered against [him] [her].
      Definitions.
      § 784.048(1)(a), Fla. Stat.
      “Harass” means to engage in a course of conduct directed at a specific
person which causes substantial emotional distress to that person and serves
no legitimate purpose.

      § 784.048(1)(b), Fla. Stat.
      “Course of conduct” means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose. The term does not include constitutionally protected activity such as
picketing or other organized protests.

      Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
      “Willfully” means knowingly, intentionally and purposely.

      Give if applicable.
      § 784.048(1)(d), Fla. Stat.


                                      -7-
       “Cyberstalk” means [to engage in a course of conduct to communicate,
or to cause to be communicated, words, images, or language by or through the
use of electronic mail or electronic communication, directed at a specific
person,] [or] [to access or attempt to access the online accounts or Internet-
connected home electronic systems of another person without that person’s
permission,] causing substantial emotional distress to that person and serving
no legitimate purpose.

       Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007).
       “Maliciously” means wrongfully, intentionally, and without legal
justification or excuse.

                            Lesser Included Offenses

      AGGRAVATED STALKING (Injunction Entered) — 784.048(4)
 CATEGORY ONE        CATEGORY TWO              FLA. STAT. INS. NO.
Stalking                                       784.048(2)  8.6
                Attempt                        777.04(1)   5.1
                Violation of injunction for    741.31(4)   8.168
                protection against domestic
                violence
                Violation of injunction for    784.047     8.19
                protection against repeat,
                sexual, or dating violence
                Violation of injunction for    784.0487(4) 8.24
                protection against stalking or
                cyberstalking

                                   Comments

      See Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007), for the definition
of maliciously.

      This instruction was adopted in 1995 [657 So. 2d 1152] and was amended in
2007 [953 So. 2d 495], 2008 [995 So. 2d 476], and 2013 [131 So. 3d 755], and
2020.




                                       -8-
                     8.7(c) AGGRAVATED STALKING
                        (Victim under 16 years of age)
                             § 784.048(5), Fla. Stat.

      To prove the crime of Aggravated Stalking, the State must prove the
following two elements beyond a reasonable doubt:

         1. (Defendant) willfully, maliciously, and repeatedly [followed]
            [harassed] [or] [cyberstalked] (victim); and,


         2. At the time of (defendant’s) actions, (victim) was under 16 years of
            age.
      Definitions.
      § 784.048(1)(a), Fla. Stat.
      “Harass” means to engage in a course of conduct directed at a specific
person which causes substantial emotional distress to that person and serves
no legitimate purpose.

      § 784.048(1)(b), Fla. Stat.
      “Course of conduct” means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose. The term does not include constitutionally protected activity such as
picketing or other organized protests.

      Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
      “Willfully” means knowingly, intentionally and purposely.

       Give if applicable.
       § 784.048(1)(d), Fla. Stat.
       “Cyberstalk” means [to engage in a course of conduct to communicate,
or to cause to be communicated, words, images, or language by or through the
use of electronic mail or electronic communication, directed at a specific
person,] [or] [to access or attempt to access the online accounts or Internet-
connected home electronic systems of another person without that person’s
permission,] causing substantial emotional distress to that person and serving
no legitimate purpose.




                                      -9-
                           Lesser Included Offenses

 AGGRAVATED STALKING (Victim under 16 years of age) — 784.048(5)
CATEGORY ONE    CATEGORY TWO              FLA. STAT.   INS. NO.
Stalking                                  784.048(2)   8.6
                Attempt                   777.04(1)    5.1
                Violation of injunction 741.31(4)      8.18
                for protection against
                domestic violence
                Violation of injunction 784.047        8.19
                for protection against
                repeat, sexual, or dating
                violence
                Violation of injunction 784.0487(4)    8.24
                for protection against
                stalking or cyberstalking

                                   Comment
      This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2007
[953 So. 2d 495], and 2013 [131 So. 3d 755], and 2020.



                    8.7(d) AGGRAVATED STALKING
               (Defendant previously sentenced for sex offense
                 and was prohibited from contacting victim)
                            § 784.048(7), Fla. Stat.

      To prove the crime of Aggravated Stalking, the State must prove the
following three elements beyond a reasonable doubt:

      1. (Defendant) was sentenced for [sexual battery] [violating Fla. Stat.
         800.04] [violating Fla. Stat. 847.0135(5)].

      2. As part of that sentencing, (defendant) was ordered to have no
         contact with (victim).
      3. After the sentencing, (defendant) willfully, maliciously, and
         repeatedly [followed] [harassed] [or] [cyberstalked] (victim).


                                     - 10 -
      Definitions.
      § 784.048(1)(a), Fla. Stat.
      “Harass” means to engage in a course of conduct directed at a specific
person which causes substantial emotional distress to that person and serves
no legitimate purpose.

      § 784.048(1)(b), Fla. Stat.
      “Course of conduct” means a pattern of conduct composed of a series of
acts over a period of time, however short, which evidences a continuity of
purpose. The term does not include constitutionally protected activity such as
picketing or other organized protests.

      Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
      “Willfully” means knowingly, intentionally and purposely.

       Give if applicable.
       § 784.048(1)(d), Fla. Stat.
       “Cyberstalk” means [to engage in a course of conduct to communicate,
or to cause to be communicated, words, images, or language by or through the
use of electronic mail or electronic communication, directed at a specific
person,] [or] [to access or attempt to access the online accounts or Internet-
connected home electronic systems of another person without that person’s
permission,] causing substantial emotional distress to that person and serving
no legitimate purpose.

       Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007).
       “Maliciously” means wrongfully, intentionally, and without legal
justification or excuse.

                          Lesser Included Offenses

   AGGRAVATED STALKING (Defendant previously sentenced for sex
      offense and was prohibited from contacting victim) — 784.048(7)
CATEGORY ONE             CATEGORY TWO            FLA. STAT.      INS. NO.
Stalking                                         784.048(2)      8.6
                         Attempt                 777.04(1)       5.1
                         Violation of injunction 741.31(4)       8.18
                         for protection against
                         domestic violence


                                    - 11 -
                    Violation of injunction 784.047            8.19
                    for protection against
                    repeat, sexual, or dating
                    violence
                    Violation of injunction 784.0487(4)        8.24
                    for protection against
                    stalking or cyberstalking

                            Comment

This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2020.




                               - 12 -
