
603 So.2d 1175 (1992)
STANDARD JURY INSTRUCTIONS  CRIMINAL CASES NO. 92-1.
No. 79320.
Supreme Court of Florida.
July 2, 1992.
Harry Lee Coe III, Chair, Committee on Standard Jury Instructions (Criminal), Tampa, for petitioner.
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted recommended amendments to the Florida Standard Jury Instructions in Criminal Cases. The explanatory portion of the report is quoted below:
   REPORT (NO. 92-1) OF THE COMMITTEE
    ON STANDARD JURY INSTRUCTIONS
     (CRIMINAL)
TO THE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF FLORIDA:
Your Committee on Standard Jury Instructions (Criminal) recommends that The Florida Bar be authorized to publish amendments to FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES. The proposed additional instructions and revised instructions are attached.
After the title of each instruction, a parenthetical description of the proposal is given. The proposal is described as "(Amended)," "(Revised)," or "(New)." "Amended" means that the wording is not substantially revised; the added words are underlined and the deleted words have strike-overs. "Revised" means that the language has changed substantially and that no attempt is made to show the changes with underlines and strike-overs. "New" means that the instruction is based on a statute for which no current instruction exists. Short explanations also follow each proposal.
Some of the proposed instructions were published on April 15, 1989. Those proposals along with many new proposals were published in the February 15, 1991, Bar News.

No responses were received to the first publication. Two letters in response to the second publication were received. The committee has considered the responses and has amended its proposals to conform substantially to the suggestions made.
A few of the committee's suggested changes have not been published in the Bar News. To allow all interested parties a final opportunity to review the proposals, the committee is asking The Florida Bar to publish a notice that amendments have been filed, that a copy of this report can be obtained at cost for review, and that comments should be submitted by March 15, 1992, to the court.
A copy of this report also is being sent to the presidents or chairs of the Florida Prosecuting Attorneys Association, the Florida Public Defenders Association, the jury instructions subcommittee of the Criminal Law Section of The Florida Bar, and the Conference of Circuit Court Judges.
One of the committee's recommendations pertained to the instruction on excusable homicide. The so-called short-form instruction on this subject is found in the introduction to homicide on pages 61 and 62 of the manual, and the so-called long form is found on page 76 of the manual. The current instructions provide that the short *1176 form shall be read in all murder and manslaughter cases, and that the long form shall also be read whenever excusable homicide is an issue in the case. The committee concludes that the long form as last amended in State v. Smith, 573 So.2d 306 (Fla. 1990), is incorrect because it requires under all three of the alternative circumstances that the killing be committed by accident and misfortune. The committee believes that a killing upon sudden combat without any dangerous weapon being used and not done in a cruel and unusual manner need not have occurred by accident and misfortune and has recommended an instruction to this effect. The committee suggests that its recommended instruction replace both the current short- and long-form instructions and that the new instruction not be given where there is no basis for it in the evidence. We respectfully disagree with the committee's recommendation on this subject.
Section 782.03, Florida Statutes (1991), reads as follows:
782.03 Excusable homicide.  Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
We believe the most logical interpretation of this language is as follows:
Homicide is excusable when committed (1) by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or (2) by accident and misfortune
(a) in the heat of passion upon any sudden and sufficient provocation, or
(b) upon a sudden combat without any dangerous weapon being used and not done in a cruel and unusual manner.
Thus, a killing which results from sudden combat must have been committed by accident and misfortune. This view is supported by logic as well as the language of the statute. We do not believe the legislature would have intended to always excuse a homicide that occurred during sudden combat so long as a dangerous weapon was not used and it was not done in a cruel or unusual manner. If this were so, anyone who became involved in a fight and later purposefully killed his opponent would be excused if he did not use a dangerous weapon and did not do the killing in a cruel and unusual manner. We interpret the sudden combat exception to protect a person who becomes involved in a fight which accidentally leads to the death of the other party.
Furthermore, we do not concur with the committee's suggestion that no portion of the excusable homicide instruction need be read when it has no basis in the evidence. We say this because Florida case law has consistently held that manslaughter is a residual offense which cannot be properly defined without an explanation that justifiable homicide and excusable homicide are excluded from the crime. Rojas v. State, 552 So.2d 914 (Fla. 1989); Hedges v. State, 172 So.2d 824 (Fla. 1965). Because a manslaughter instruction will have to be given in every homicide case, the instruction on excusable homicide will also have to be included. We do, however, concur with the committee's suggestion that only one instruction on excusable homicide need be given rather than both the current short and long forms.
Therefore, we hold that the following instruction on excusable homicide shall be given in every homicide case in place of the short form now found on pages 61 and 62 of the manual.
EXCUSABLE HOMICIDE
The killing of a human being is excusable and therefore lawful, under any one of the following three circumstances:
1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with *1177 usual ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.
"Dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.
Because this instruction will adequately cover the subject even when excusable homicide is an issue in the case, the long-form instruction now found on page 76 of the manual need not be given and shall be eliminated. The new pages 61 and 62 are included in the appendix to this opinion as pages A-10 and A-11 in lieu of the amendment to the long-form instruction on excusable homicide proposed by the committee.
All of the other recommendations of the committee, which are included in the appendix to this opinion, are approved for publication. We caution all interested persons, however, that the notes and comments reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. We wish to express our appreciation to the committee for its dedication in presenting to the Court its comprehensive recommendations.
It is so ordered.
BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.


*1178 APPENDIX

2.04(c) DEFENDANT TESTIFYING (Amended)


Give if      The defendant in this case has become a witness. You should
defendant  apply the same rules to consideration of [his] [her] testimony
requests   that you apply to the testimony of the other witnesses.

Explanation of amendments: This instruction is on page 18 of the manual. The note in the margin is being removed because the committee believes that this instruction should be given any time the defendant testifies.
Feminine pronouns have been added to this and the other proposed instructions to avoid gender bias.

[Page A-1]


*1179
              MISCELLANEOUS INSTRUCTIONS
              3.01 PRINCIPALS (Amended)
F.S. 777.011    If two or more persons help each other [commit] [attempt to
              commit] a crime and the defendant is one of them, the
              defendant is a principal and must be treated as if [he] [she]
              had done all of the things the other person or persons did if
              the defendant:
                1. Knew what was going to happen,
                2. Intended to participate actively or by sharing in an
                   expected benefit and
                3. Actually did something by which [he] [she] intended to
                   help [commit] [attempt to commit] the crime.
              "Help" means to aid, plan or assist.
See State v.    To be a principal, the defendant does not have to be
Dene,         present when the crime is [committed] [or] [attempted].
533 So.2d 265
(Fla. 1988)
Note to         Omit last sentence when felony murder is charged.
Judge

Explanation of amendments: This instruction is from page 32a of the manual. The note to judge is obsolete in light of State v. Dene.

[Page A-2]


*1180
              3.01(a) PRINCIPALS  WHEN ACTIVE PARTICIPANT HIRED BY
                      DEFENDANT (Amended)
F.S. 777.011    If the defendant paid or promised to pay another person or
              persons to [commit] [attempt to commit] a crime, the defendant
              is a principal and must be treated as if [he] [she] had done
              all of the things the person who received the money did if:
                1. The defendant knew what was going to happen,
                2. [He] [She] made or promised the payment in exchange for
                   the commission or promise to commit the crime or to help
                   commit the crime and
                3. The [crime] [attempt] was committed by (co-conspirator).
Note to       Omit last sentence when felony murder is charged.
Judge
See State v.    To be a principal, the defendant does not have to be
Dene,         present when the crime is [committed] [or] [attempted].
533 So.2d 265
(Fla. 1988)

Explanation of amendments: This instruction is from page 33 of the manual. The note to judge is obsolete in light of State v. Dene.

[Page A-3]


*1181
              3.04(e) JUSTIFIABLE USE OF NONDEADLY FORCE
                      (Amended)
Note to         Since there are many defenses applicable to self-defense,
Judge         give only those parts of the instructions that are required by
              the evidence.
Read in all     An issue in this case is whether the defendant acted in
cases         self-defense. It is a defense to the offense with which
              (defendant) is charged if the [injury to] (victim) resulted
              from the justifiable use of force not likely to cause death
              or great bodily harm.
In defense of   (Defendant) would be justified in using force not likely to
person F.S.   cause death or great bodily harm against (victim) if the
776.012       following two facts are proved:
Give if         1. (Defendant) must have reasonably believed that such
applicable         conduct was necessary to defend ([himself)], [herself]
                   ([another)], against (victim's) imminent use of unlawful
                   force against the [defendant] ([other person)].
                2. The use of unlawful force by (victim) must have appeared
                   to (defendant) ready to take place.
In defense of   (Defendant) would be justified in using force not likely to
property F.S. cause death or great bodily harm against (victim) if the
776.031       following three facts are proved:
Give if         1. (Victim) must have been trespassing or otherwise
applicable         wrongfully interfering with land or personal property.
                2. The land or personal property must have lawfully been
                   in (defendant's) possession, or in the possession of a
                   member of [his] [her] immediate family or household, or
                   in the possession of some person whose property [he]
                   [she] was under a legal duty to protect.


[Page A-4]


*1182
                3. (Defendant) must have reasonably believed that [his]
                   [her] use of force was necessary to prevent or
                   terminate (victim's) wrongful behavior.
Aggressor       The use of force not likely to cause death or great bodily
F.S. 776.041  harm is not justifiable if you find:
Give if         1. (Defendant) was attempting to commit, committing or
applicable         escaping after the commission of a (applicable forcible
                   felony).
Define
applicable      2. (Defendant) initially provoked the use of force against
forcible           [himself] [herself], unless:
felony
                   (a) The force asserted toward the defendant was so great
                       that [he] [she] reasonably believed that [he] [she]
                       was in imminent danger of death or great
                       bodily harm and had exhausted every reasonable means
                       to escape the danger, other than using force not
                       likely to cause death or great bodily harm to
                       (assailant).
                   (b) In good faith, the defendant withdrew from physical
                       contact with (assailant) and indicated clearly to
                       (assailant) that [he] [she] wanted to withdraw and
                       stop the use of force not likely to cause death or
                       great bodily harm, but (assailant) continued or
                       resumed the use of force.
Force in        A person is not justified in using force to resist an arrest
resisting     by a law enforcement officer who is known, to be or reasonably
arrest        appears to be a law enforcement officer.
F.S.
776.051(1)
and F.S.
776.012
Give if         However, if an officer uses excessive force to make an
applicable    arrest, then a person is justified in the use of reasonable
              force


[Page A-5]


*1183
See Ivester   to defend [himself] [herself] ([or another)], but only to
v. State,     the extent [he] [she] reasonably believes such force
398 So.2d 926 is necessary.
(Fla. 1st
DCA 1981);
Jackson
v. State,
463 So.2d 372
(Fla. 5th
DCA 1985).
In some
instances, the
instructions
applicable to
F.S. 776.012,
776.031 or
776.041 may
need to be
given in
connection
with this
instruction.
Read in all     In deciding whether the defendant was justified in the use
cases         of force not likely to cause death or great bodily harm, you
              must judge [him] [her] by the circumstances by which [he]
              [she] was surrounded at the time the force was used. The
              danger facing the defendant need not have been actual;
              however, to justify the use of force not likely to
              cause death or great bodily harm, the appearance of
              danger must have been so real that a reasonably
              cautious and prudent person under the same circumstances
              would have believed that the danger could be avoided only
              through the use of that force. Based upon appearances, the
              defendant must have actually believed that the danger was
              real.
Necessity to    The defendant cannot justify his use of force not likely to
avoid use of  cause death or great bodily harm unless he used every
deadly force  reasonable means within his power and consistent with his own
Read in all   safety to avoid the danger before resorting to that force.
cases


[Page A-6]


*1184
Reputation of   If you find that (victim) had a reputation of being a
victim        violent and dangerous person and that [his] [her] reputation
              was known to the defendant, you may consider this fact in
              determining whether the actions of the defendant were those
Give if       of a reasonable person in dealing with an individual of
applicable    that reputation.
Physical        In considering the issue of self-defense, you may take into
abilities     account the relative physical abilities and capacities of
Read in all   the defendant and (victim).
cases
Read in all     If in your consideration of the issue of self-defense you
cases         have a reasonable doubt on the question of whether or not
              the defendant was justified in the use of force not likely to
              cause death or great bodily harm, you should find the
              defendant not guilty.
                However, if from the evidence you are convinced that the
              defendant was not justified in the use of force not likely to
              cause death or great bodily harm, then you should find [him]
              [her] guilty if all the elements of the charge have been
              proved.

Explanation of amendments: This instruction is on pages 44-45b of the manual. The paragraph being deleted does not seem to be a correct statement of law. The note in the margin indicates that the paragraph is about the use of deadly force, but the paragraph actually talks about nondeadly force. In doing so, it apparently is inaccurate. The committee is in agreement that no duty to use "every reasonable means ... to avoid the danger exists under Florida law." See Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1980) (footnote 1).

[Page A-7]


*1185
              3.05(c) AGGRAVATION OF A FELONY BY COMMITTING AN
                      AGGRAVATED BATTERY (New)
                      F.S. 775.087(1)
Note to         This instruction should not be given in conjunction with
Judge         the instructions pertaining to any felony in which the use of
              a weapon is an essential element.
                If you find that (defendant) committed (felony as identified
              by F.S. 775.087(1)) and you also find that during the
              commission of the crime the defendant committed an aggravated
              battery, you should find the defendant guilty of (felony) with
              an aggravated battery.
Definitions   "Aggravated battery" is legally defined as (read applicable
              instructions).
                If you find only that defendant committed (felony, as
              identified in F.S. 775.087(1)) but did not commit an
              aggravated battery, then you should find the defendant
              guilty only of (felony).

Explanation of proposed instruction: This instruction is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(1) in 1989.

[Page A-8]


*1186
              3.05(d) AGGRAVATION OF A FELONY BY POSSESSION OF A
                      FIREARM OR DESTRUCTIVE DEVICE (New)
                      F.S. 775.087(2)
              If you find that (defendant) committed (felony identified by
              F.S. 775.087(2)) and you also find that during the commission
              of the crime the defendant possessed
                      [a firearm]
                      [a destructive device]
                      [a semiautomatic firearm and its high-capacity
                      detachable box magazine]
                      [a machine gun],
              you should find the defendant guilty of (felony) with
              (applicable firearm(s)/device).
Definitions     Give applicable definitions as contained in F.S. 790.001(4),
              F.S. 790.001(6), F.S. 775.087(2)(b), and F.S. 790.001(9).
                If you find only that defendant committed (felony, as
              identified in F.S. 775.087(2)) but did not possess a
              (applicable firearm(s)/device), then you should find the
              defendant guilty only of (felony).

Explanation of proposed instruction: This is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(2) in 1989.

[Page A-9]


*1187
              INTRODUCTION TO HOMICIDE
Note to         Read in all murder and manslaughter cases.
Judge
                In this case (defendant) is accused of (crime charged).
Give degrees    Murder in the First Degree includes the lesser crimes of
as applicable Murder in the Second Degree, Murder in the Third Degree and
              Manslaughter, all of which are unlawful.
                A killing that is excusable or was committed by the use of
              justifiable deadly force is lawful.
                If you find (victim) was killed by (defendant), you will
              then consider the circumstances surrounding the killing in
              deciding if the killing was (crime charged) or was [Murder
              in the Second Degree] [Murder in the Third Degree]
              [Manslaughter], or whether the killing was excusable or
              resulted from justifiable use of deadly force.
                           JUSTIFIABLE HOMICIDE
F.S. 782.02     The killing of a human being is justifiable homicide and
              lawful if necessarily done while resisting an attempt to
              murder or commit a felony upon the defendant, or to commit a
              felony in any dwelling house in which the defendant was at the
              time of the killing.
                            EXCUSABLE HOMICIDE
F.S. 782.03     The killing of a human being is excusable, and therefore
              lawful, under any one of the following three circumstances:
                1. When the killing is committed by accident and misfortune
                   in doing any lawful act by lawful means with usual
                   ordinary caution and without any unlawful intent, or
                2. When the killing occurs by accident or misfortune in the
                   heat of passion, upon any sudden and sufficient
                   provocation, or


[Page A-10]


*1188
                3. When the killing results from a sudden combat, without
                   any dangerous weapon being used and not done in a cruel
                   and unusual manner.
                3. When the killing is committed by accident and misfortune
                   resulting from a sudden combat, if a dangerous weapon is
                   not used and the killing is not done in a cruel or
                   unusual manner.
Definition      "Dangerous weapon" is any weapon that, taking into account
              the manner in which it is used, is likely to produce death or
              great bodily harm.
                I now instruct you on the circumstances that must be proved
              before (defendant) may be found guilty of (crime charged) or
              any lesser included crime.
Note to         For complete instructions on Self-defense and Excusable
Judge         Homicide, if in issue, see pages [40, 44] and 76 respectively
              40 and 44.


[Page A-11]


*1189
              FELONY MURDER  FIRST DEGREE
              F.S. 782.04(1)(a)
                Before you can find the defendant guilty of First Degree
              Felony Murder, the State must prove the following three
              elements beyond a reasonable doubt:
Elements        1. (Victim) is dead.
Give 2a, 2b     2. a. [The death occurred as a consequence of and while
or 2c as              (defendant) was engaged in the commission of
applicable            (crime alleged).]
                   b. [The death occurred as a consequence of and while
                      (defendant), was attempting to commit (crime
                      alleged).]
                   c. [The death occurred as a consequence of and while
                      (defendant), or an accomplice, was escaping from the
                      immediate scene of (crime alleged).]
Give 3a if      3. a. [(Defendant) was the person who actually killed
defendant             (victim).]
actual
perpetrator
Give 3b if         b. [(Victim) was killed by a person other than
defendant not         (defendant); who was involved in the commission or
actual                attempt to commit (crime alleged) but both (defendant)
perpetrator           and the person who killed (victim) was present and did
                      knowingly aid, abet, counsel, hire or otherwise
                      procure were principals in the commission of (crime
                      alleged).]
                In order to convict of First Degree Felony Murder, it is not
              necessary for the State to prove that the defendant had a
              premeditated design or intent to kill.


[Page A-12]


*1190
Notes to           1. Define the crime alleged. If Burglary, also define
Judge                 crime that was the object of burglary.
                   2. If 2b above is given, also define "attempt" (see page
                      55).
                   3. If 3b is given, immediately give principal instruction
                      (3.01 on page 32a).
                   4. Since the statute does not require its proof, it is
                      not necessary to define "premeditation."

Explanation of amendments: This instruction is on page 64 of the manual. The changes are intended to conform the instruction to the holding of State v. Dene, 533 So.2d 265 (Fla. 1988).

[Page A-13]


*1191
              MURDER  THIRD DEGREE
              F.S. 782.04(4)
                Before you can find the defendant guilty of Third Degree
              Murder, the State must prove the following three elements
              beyond a reasonable doubt:
Elements        1. (Victim) is dead.
Give 2a, 2b     2. a. [The death occurred as a consequence of and while
or 2c as              (defendant) was engaged in the commission of (crime
applicable            alleged).]
                   b. [The death occurred as a consequence of and while
                      (defendant) was attempting to commit (crime alleged).]
                   c. [The death occurred as a consequence of and while
                      (defendant), or an accomplice, was escaping from the
                      immediate scene of (crime alleged).]
Give 3a if      3. a. [(Defendant) was the person who actually killed
defendant             (victim).]
actual
perpetrator
Give 3b if         b. [(Defendant) was not the person who actually killed
defendant not         (victim), but was present and did knowingly aid, abet,
actual                counsel, hire or otherwise procure the commission of
perpetrator           (crime alleged).] [(Victim) was killed by a person
                      other than (defendant); but both (defendant) and the
                      person who killed (victim) were principals in the
                      commission of (crime alleged).]
                It is not necessary for the State to prove the killing was
              perpetrated with a design to effect death.
Notes to        1. Define the crime alleged.
Judge


[Page A-14]


*1192
                2. If 2b above is given, also define "attempt" (see page
                   55).
                3. If 3b is given, immediately give principal instruction
                   (3.01 on page 32a).

Explanation of amendments: This instruction is on page 67 of the manual. The changes are intended to conform the instruction to the holding of State v. Dene, 533 So.2d 265 (Fla. 1988).

[Page A-15]


*1193
              MANSLAUGHTER (Amended)
              F.S. 782.07
                Before you can find the defendant guilty of Manslaughter,
              the State must prove the following two elements beyond a
              reasonable doubt:
Elements        1. (Victim) is dead.
Give 2(a),      2. The death was caused by the
(b) or (c)
depending          (a) intentional act of (defendant).
upon
allegations        (b) intentional procurement of (defendant).
and proof.
                   (c) culpable negligence of (defendant).
                However, the defendant cannot be guilty of manslaughter if
              the killing was either justifiable or excusable homicide as
              I have previously explained those terms.
Note to         In the event of any reinstruction on manslaughter, the
Judge         instructions on justifiable and excusable homicide as
              previously given on page 61 should be given at the same time.
              Hedges v. State, 172 So.2d 824 (Fla. 1965).
Definitions
Give only if    To "procure" means to persuade, induce, prevail upon or
2(b) alleged  cause a person to do something.
and proved.
Give only if    I will now define "culpable negligence" for you. Each of us
2(c) alleged  has a duty to act reasonably toward others. If there is a
and proved.   violation of that duty, without any conscious intention to
              harm, that violation is negligence. But culpable negligence
              is more than a failure to use ordinary care toward others. In
              order for negligence to be culpable, it must be gross and
              flagrant. Culpable negligence is a course of conduct showing
              reckless disregard of human life, or of the safety of persons
              exposed to its dangerous effects, or such an entire want of


[Page A-16]


*1194
              care as to raise a presumption of a conscious indifference to
              consequences, or which shows wantonness or recklessness, or a
              grossly careless disregard of the safety and welfare of the
              public, or such an indifference to the rights of others as is
              equivalent to an intentional violation of such rights.
                The negligent act or omission must have been committed with
              an utter disregard for the safety of others. Culpable
              negligence is consciously doing an act or following a course
              of conduct that the defendant must have known, or reasonably
              should have known, was likely to cause death or great bodily
              injury.

Explanation of amendments: The instruction begins on page 68 of the manual. The addition of "intentional" to (2)(a) and (2)(b) was approved by the committee after discussion of Taylor v. State, 444 So.2d 931 (Fla. 1983).

[Page A-17]


*1195
              DUI MANSLAUGHTER (Amended)
              F.S. 316.193(3)(c)3
                Before you can find the defendant guilty of DUI
              Manslaughter, the State must prove the following three
              elements beyond a reasonable doubt:
Elements        1. (Defendant) operated a vehicle.
See Magaw       2. (Defendant), by reason of such operation, caused or
v. State,          contributed to the cause of the death of (victim).
537 So.2d 564
(Fla. 1989)     3. At the time of such operation (defendant)
Give 3a            a. [was under the influence of [alcoholic beverages] [a
and/or 3b as          chemical substance] [a controlled substance] to the
applicable            extent that [his] [her] normal faculties were
                      impaired.]
                   b. [had a blood alcohol level of 0.10 percent or higher.]
Definitions     "Vehicle" is any device in, upon, or by which any person or
              property is or may be transported or drawn upon a highway,
              except devices used exclusively upon stationary rails or
Give as       tracks.
applicable
F.S.            "Normal faculties" mean those faculties of a person, such as
316.003(75)   the ability to see, hear, walk, talk, make judgments, and, in
              general, to normally perform the many mental and physical acts
              of our daily lives.
F.S.            (___) is a chemical substance under Florida law.
877.111(1)
Ch. 893, F.S.   (___) is a controlled substance under Florida law.
                "Alcoholic beverages" are considered to be beer, wine,
              whiskey, and all other alcoholic beverages of any kind and
              description which are made for human consumption.


[Page A-18]


*1196
Note to         In appropriate cases, an instruction may be given on one or
Judge         more of the presumptions of impairment established by F.S.
              316.1934(2)(a), (2)(b), and (2)(c). See State v. Rolle,
              560 So.2d 1154 (Fla. 1990).

Explanation of amendments: This instruction begins on page 70 of the manual. The words "or contributed to the cause of" were added to paragraph 2 after discussing Magaw v. State, 537 So.2d 564 (Fla. 1989). The committee decided that the definition of alcoholic beverages was unnecessary and perhaps too limiting.

[Page A-19]


*1197
              FELONY DUI  PRIOR CONVICTIONS (New)
              F.S. 316.193(2)(b)
                Before you can find the defendant guilty of DUI, the State
              must prove the following two elements beyond a reasonable
              doubt:
Elements        1. (Defendant) drove or was in actual physical control of
                   a vehicle.
                2. While driving or in control of the vehicle, (defendant)
Give 2a            a. [was under the influence of [alcoholic beverages] [a
and/or 2b as          chemical substance] [a controlled substance] to the
applicable            extent that [his] [her] normal faculties were
                      impaired.]
                   b. [had a blood alcohol level of 0.10 percent or
                      higher.]
Definitions     "Vehicle" is any device in, upon, or by which any person or
              property is or may be transported or drawn upon a highway,
Give as       except devices used exclusively upon stationary rails or
applicable    tracks.
F.S.            "Normal faculties" mean those faculties of a person, such
316.003(75)   as the ability to see, hear, walk, talk, make judgments, and,
              in general, to normally perform the many mental and physical
              acts of our daily lives.
F.S.            (___) is a chemical substance under Florida law.
877.111(1)
Ch. 893, F.S.   (___) is a controlled substance under Florida law.
Note to         In appropriate cases, an instruction may be given on one
Judge         or more of the presumptions of impairment established by F.S.
              316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle,
              560 So.2d 1154 (Fla. 1990).


[Page A-20]
*1198 Explanation of proposed instruction: This instruction is based on F.S. 316.193(2)(b), which was created in 1986. The instruction covers the elements of DUI only. It does not mention three prior convictions, the element that separates felony DUI from misdemeanor DUI. The issue of previous convictions must be determined after a guilty finding on the basic elements of DUI. State v. Rodriguez, 575 So.2d 1262 (Fla. 1991).

[Page A-21]


*1199
              FELONY DUI  SERIOUS BODILY INJURY (New)
              F.S. 316.193(3)(c)2
                Before you can find the defendant guilty of DUI with
              serious bodily injury, the State must prove the following
              three elements beyond a reasonable doubt:
Elements        1. (Defendant) drove or was in actual physical control of a
                   vehicle.
                2. While driving or in control of the vehicle, (defendant)
Give 2a or         a. [was under the influence of [alcoholic beverages] [a
2b as                 chemical substance] [a controlled substance] to the
applicable            extent that [his] [her] normal faculties were
                      impaired.]
                   b. [had a blood alcohol level of 0.10 percent or higher.]
                3. As a result (defendant) caused serious bodily injury to
                   (victim).
Definitions     "Vehicle" is any device in, upon, or by which any person
              or property is or may be transported or drawn upon a highway,
Give as       except devices used exclusively upon stationary rails or
applicable    tracks.
F.S.            "Normal faculties" mean those faculties of a person, such
316.003(75)   as the ability to see, hear, walk, talk, make judgments,
              and, in general, to normally perform the many mental and
              physical acts of our daily lives.
F.S.            (___) is a chemical substance under Florida law.
877.111(1)
Ch. 893, F.S.   (___) is a controlled substance under Florida law.
F.S.            "Serious bodily injury" means a physical condition that
316.1933      creates a substantial risk of death, serious personal


[Page A-22]


*1200
              disfigurement, or protracted loss or impairment of the
              function of any bodily member or organ.
Note to         In appropriate cases, an instruction may be given on one
Judge         or more of the presumptions of impairment established by
              F.S. 316.1934(2)(a), (2)(b), and (2)(c). State v. Rolle,
              560 So.2d 1154 (Fla. 1990).

Explanation of proposed instruction: This instruction is based on F.S. 316.193(3)(c)2, which was created in 1986.

[Page A-23]


*1201
              PENALTY PROCEEDINGS  CAPITAL CASES (Amended)
              F.S. 921.141
Note to         Give 1a at the beginning of penalty proceedings before a
Judge         jury that did not try the issue of guilt. In addition, give
              the jury other appropriate general instructions.
                1. a. Ladies and gentlemen of the jury, the defendant has
                      been found guilty of (crime charged). Consequently,
                      you will not concern yourselves with the question of
                      [his] [her] guilt.
Note to         Give 1b at beginning of penalty proceedings before the
Judge         jury that found the defendant guilty.
                   b. Ladies and gentlemen of the jury, you have found the
                      defendant guilty of (crime charged).
                2. The punishment for this crime is either death or life
                   imprisonment without the possibility of parole for 25
                   years. Final decision as to what punishment shall be
                   imposed rests solely with the judge of this court;
                   however, the law requires that you, the jury, render to
                   the court an advisory sentence as to what punishment
                   should be imposed upon the defendant.
Note to         When the victim is a law enforcement officer, correctional
Judge         officer, state attorney, assistant state attorney, justice,
              or judge, "eligibility for release" should be inserted in
              place of "possibility of parole for 25 years." See F.S.
              775.0823.
Note to         Give in all cases before taking evidence in penalty
Judge         proceedings.
                The State and the defendant may now present evidence
              relative to the nature of the crime and the character of
              the defendant. You are instructed that [this evidence
              when considered with the evidence you have already heard]
              [this evidence] is presented in order that you might
              determine, first, whether sufficient aggravating
              circumstances exist that


[Page A-24]


*1202
              would justify the imposition of the death penalty and,
              second, whether there are mitigating circumstances
              sufficient to outweigh the aggravating circumstances, if
              any. At the conclusion of the taking of the evidence and
              after argument of counsel, you will be instructed on the
              factors in aggravation and mitigation that you may consider.
Note to         Give after the taking of evidence and argument.
Judge
                Ladies and gentlemen of the jury, it is now your duty to
              advise the court as to what punishment should be imposed
              upon the defendant for [his] [her] crime of (crime charged).
              As you have been told, the final decision as to what
              punishment shall be imposed is the responsibility of the
              judge; however, it is your duty to follow the law that will
              now be given you by the court and render to the court an
              advisory sentence based upon your determination as to whether
              sufficient aggravating circumstances exist to justify the
              imposition of the death penalty and whether sufficient
              mitigating circumstances exist to outweigh any aggravating
              circumstances found to exist.
                Your advisory sentence should be based upon the evidence
              [that you have heard while trying the guilt or innocence of
              the defendant and evidence that has been presented to you
              in these proceedings] [that has been presented to you in
              these proceedings].
F.S.            The aggravating circumstances that you may consider are
921.141(5)    limited to any of the following that are established by the
              evidence:
Note to         Give only those aggravating circumstances for which
Judge         evidence has been presented.
                1. The crime for which (defendant) is to be sentenced was
                   committed while [he] [she] [was under sentence of
                   imprisonment] [or] [was placed on community control];
                2. The defendant has been previously convicted of another
                   capital offense or of a felony involving the


Page A-25]


*1203
                   [use] [threat] of violence to some person;
Note to         Since the character of a crime if involving violence or
Judge         threat of violence is a matter of law, when the State offers
              evidence under aggravating circumstance "2" the court should
              instruct the jury of the following, as applicable:
Give a or b        a. The crime of (previous crime) is a capital felony;
as applicable
                   b. The crime of (previous crime) is a felony involving
                      the [use] [threat] of violence to another person;
                3. The defendant, in committing the crime for which [he]
                   [she] is to be sentenced, knowingly created a great risk
                   of death to many persons;
                4. The crime for which the defendant is to be sentenced
                   was committed while [he] [she] was
                      [engaged]
                      [an accomplice]
                    in
                      [the commission of]
                      [an attempt to commit]
                      [flight after committing or attempting to commit]
                    the crime of
                      [robbery]
                      [sexual battery]
                      [arson]
                      [burglary]
                      [kidnapping]
                      [aircraft piracy]
                      [the unlawful throwing, placing or discharging of
                      a destructive device or bomb];


[Page A-26]


*1204
                5. The crime for which the defendant is to be sentenced
                   was committed for the purpose of avoiding or preventing
                   a lawful arrest or effecting an escape from custody;
                6. The crime for which the defendant is to be sentenced was
                   committed for financial gain;
                7. The crime for which the defendant is to be sentenced was
                   committed to disrupt or hinder the lawful exercise of
                   any governmental function or the enforcement of laws;
                8. The crime for which the defendant is to be sentenced was
                   especially heinous, atrocious or cruel. "Heinous" means
                   extremely wicked or shockingly evil. "Atrocious" means
                   outrageously wicked and vile. "Cruel" means designed to
                   inflict a high degree of pain with utter indifference
                   to, or even enjoyment of, the suffering of others. The
                   kind of crime intended to be included as heinous,
                   atrocious, or cruel is one accompanied by additional
                   acts that show that the crime was conscienceless or
                   pitiless and was unnecessarily torturous to the victim.
Applicable      9. The crime for which the defendant is to be sentenced was
only if            committed in a cold, calculated and premeditated manner
defendant          without any pretense of moral or legal justification.
committed a
homicide       10. The victim of the crime for which defendant is to be
                   sentenced was a law enforcement officer engaged in the
                   performance of the officer's official duties.
               11. The victim of the crime for which the defendant is to
                   be sentenced was an elected or appointed public official
                   engaged in the performance of [his] [her] official
                   duties and the crime was related, in whole or in part,
                   to the victim's official capacity.


[Page A-27]


*1205
                If you find the aggravating circumstances do not justify
              the death penalty, your advisory sentence should be one of
              life imprisonment without possibility of parole for 25 years.
Note to         When the victim is a law enforcement officer, correctional
Judge         officer, state attorney, assistant state attorney, justice,
              or judge, "eligibility for release" should be inserted in
              place of "possibility of parole for 25 years." See F.S.
              775.0823.
F.S.            Should you find sufficient aggravating circumstances do
921.141(6)    exist, it will then be your duty to determine whether
              mitigating circumstances exist that outweigh the aggravating
              circumstances. Among the mitigating circumstances you may
              consider, if established by the evidence, are:
Note to         Give only those mitigating circumstances for which
Judge         evidence has been presented.
                1. (Defendant) has no significant history of prior criminal
                   activity;
Note to         If the defendant offers evidence on this circumstance and
Judge         the State, in rebuttal, offers evidence of other crimes,
              also give the following:
                Conviction of (previous crime) is not an aggravating
              circumstance to be considered in determining the penalty to
              be imposed on the defendant, but a conviction of that crime
              may be considered by the jury in determining whether the
              defendant has a significant history of prior criminal
              activity.
                2. The crime for which the defendant is to be sentenced
                   was committed while [he] [she] was under the influence
                   of extreme mental or emotional disturbance;
                3. The victim was a participant in the defendant's conduct
                   or consented to the act;
                4. The defendant was an accomplice in the offense for
                   which [he] [she] is to be sentenced but the offense


[Page A-28]


*1206
                   was committed by another person and the defendant's
                   participation was relatively minor;
                5. The defendant acted under extreme duress or under the
                   substantial domination of another person;
                6. The capacity of the defendant to appreciate the
                   criminality of [his] [her] conduct or to conform [his]
                   [her] conduct to the requirements of law was
                   substantially impaired;
                7. The age of the defendant at the time of the crime;
                8. Any other aspect of the defendant's character or
                   record, and any other circumstance of the offense.
                Each aggravating circumstance must be established beyond a
              reasonable doubt before it may be considered by you in
              arriving at your decision.
                If one or more aggravating circumstances are established,
              you should consider all the evidence tending to establish
              one or more mitigating circumstances and give that evidence
              such weight as you feel it should receive in reaching your
              conclusion as to the sentence that should be imposed.
                A mitigating circumstance need not be proved beyond a
              reasonable doubt by the defendant. If you are reasonably
              convinced that a mitigating circumstance exists, you may
              consider it as established.
                The sentence that you recommend to the court must be
              based upon the facts as you find them from the evidence and
              the law. You should weigh the aggravating circumstances
              against the mitigating circumstances, and your advisory
              sentence must be based on these considerations.
                In these proceedings it is not necessary that the advisory
              sentence of the jury be unanimous.


[Page A-29]


*1207
                The fact that the determination of whether you recommend
              a sentence of death or sentence of life imprisonment in this
              case can be reached by a single ballot should not influence
              you to act hastily or without due regard to the gravity of
              these proceedings. Before you ballot you should carefully
              weigh, sift and consider the evidence, and all of it,
              realizing that human life is at stake, and bring to bear your
              best judgment in reaching your advisory sentence.
                If a majority of the jury determine that (defendant) should
              be sentenced to death, your advisory sentence will be:
                   A majority of the jury, by a vote of ______, advise and
                   recommend to the court that it impose the death penalty
                   upon (defendant).
                On the other hand, if by six or more votes the jury
              determines that (defendant) should not be sentenced to death,
              your advisory sentence will be:
                   The jury advises and recommends to the court that it
                   impose a sentence of life imprisonment upon (defendant)
                   without possibility of parole for 25 years.
Note to         When the victim is a law enforcement officer, correctional
Judge         officer, state attorney, assistant state attorney, justice,
              or judge, "eligibility for release" should be inserted in
              place of "possibility of parole for 25 years." See F.S.
              775.0823.
                You will now retire to consider your recommendation. When
              you have reached an advisory sentence in conformity with
              these instructions, that form of recommendation should be
              signed by your foremanperson and returned to the
              court.

Explanation of amendment: This instruction begins on page 77 of the manual. The Note to Judge is added to bring F.S. 775.0823 to the court's attention in appropriate cases.

[Page A-30]


*1208
              ASSAULT OFON LAW ENFORCEMENT OFFICER OR
              FIREFIGHTER (Amended)
              F.S. 784.07A(2)(a)
                Before you can find the defendant guilty of Assault on a
              [law enforcement officer] [firefighter], the State must
              prove the following six elements beyond a reasonable doubt:
Elements        1. (Defendant) intentionally and unlawfully threatened,
                   either by word or act, to do violence to (victim).
                2. At the time, (defendant) appeared to have the ability to
                   carry out the threat.
                3. The act of (defendant) created in the mind of (victim) a
                   well-founded fear that the violence was about to take
                   place.
                4. (Victim) was at the time a [law enforcement officer]
                   [firefighter].
                5. (Defendant) knew (victim) was a [law enforcement
                   officer] [firefighter].
                6. At the time of the assault (victim) was engaged in the
                   lawful performance of [his] [her] duties.
                The court now instructs you that (name of official
              position of victim designated in charge) is a [law
              enforcement officer] [firefighter].

Explanation of proposed changes: The instruction is on page 92 of the manual. The changes are editorial.

[Page A-31]


*1209
              BATTERY OF LAW ENFORCEMENT OFFICER OR FIREFIGHTER
              (Amended)
              F.S. 784.07B(2)(b)
                Before you can find the defendant guilty of Battery of a
              [law enforcement officer] [firefighter], the State must prove
              the following four elements beyond a reasonable doubt:
Elements        1. (Defendant) intentionally
                   [touched or struck (victim) against [his] [her] will.]
                   [caused bodily harm to (victim).]
                2. (Victim) was a [law enforcement officer] [firefighter].
                3. (Defendant) knew (victim) was a [law enforcement
                   officer] [firefighter].
                4. (Victim) was engaged in the lawful performance of [his]
                   [her] duties when the battery was committed. against
                   him.
                The court now instructs you that (name of official position
              of victim designated in charge) is a [law enforcement
              officer] [firefighter].

Explanation of proposed changes: The instruction is on page 93 of the manual. The changes are editorial.

[Page A-32]


*1210
              AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER OR
              FIREFIGHTER (New)
              F.S. 784.07(2)(c)
                Before you can find the defendant guilty of aggravated
              assault of a [law enforcement officer] [firefighter], the
              state must prove the following seven elements beyond a
              reasonable doubt. The first three elements define assault.
Elements        1. (Defendant) intentionally and unlawfully threatened,
                   either by word or act, to do violence to (victim).
                2. At the time, (defendant) appeared to have the ability
                   to carry out the threat.
                3. The act of (defendant) created in the mind of (victim)
                   a well-founded fear that the violence was about to take
                   place.
Give 4a or      4. a. [The assault was made with a deadly weapon.]
4b as
applicable         b. [The assault was made with a fully-formed, conscious
                      intent to commit (crime charged) upon (victim).]
Note to         If 4b is alleged, define the crime charged.
Judge
                5. (Victim) was at the time a [law enforcement officer]
                   [firefighter].
                6. (Defendant) knew (victim) was a [law enforcement
                   officer] [firefighter].
                7. At the time of the assault (victim) was engaged in the
                   lawful performance of [his] [her] duties.
                The court now instructs you that (name of official position
              of victim designated in charge) is a [law enforcement
              officer] [firefighter].


[Page A-33]


*1211
Definition;     A weapon is a "deadly weapon" if it is used or threatened
give if 4a    to be used in a way likely to produce death or great bodily
alleged       harm.
Give if 4a      It is not necessary for the state to prove that the
alleged       defendant had an intent to kill.

Explanation of proposed instruction: This instruction is new based on F.S. 784.07(2)(c), which was created in 1988. The wording is similar to the instruction for assault of law enforcement officer on page 92 of the manual.

[Page A-34]


*1212
              AGGRAVATED BATTERY ON LAW ENFORCEMENT OFFICER OR
              FIREFIGHTER (New)
              F.S. 784.07(2)(d)
                Before you can find the defendant guilty of aggravated
              battery of a [law enforcement officer] [firefighter], the
              state must prove the following five elements beyond a
              reasonable doubt. The first element is a definition of
              battery.
Elements        1. (Defendant)
                   [intentionally touched or struck (victim) against [his]
                   [her] will.]
                   [intentionally caused bodily harm to (victim).]
                2. (Defendant) in committing the battery
                   a. [intentionally or knowingly caused
                      [great bodily harm to (victim)].]
                      [permanent disability to (victim) ].]
                      [permanent disfigurement to (victim)].]
                   b. [used a deadly weapon.]
                3. (Victim) was a [law enforcement officer]
                   [firefighter].
                4. (Defendant) knew (victim) was a [law enforcement
                   officer] [firefighter].
                5. (Victim) was engaged in the lawful performance of [his]
                   [her] duties when the battery was committed against [him]
                   [her].
                The court now instructs you that (name of official position
              of victim designated in charge) is a [law enforcement
              officer] [firefighter].


[Page A-35]


*1213
Definition;     A weapon is a "deadly weapon" if it is used or threatened
give if 2b    to be used in a way likely to produce death or great bodily
alleged       harm.

Explanation of proposed instruction: This instruction is new based on F.S. 784.07(2)(d), which was created in 1988. The wording is similar to the instruction for battery of a law enforcement officer on page 93 of the manual.

[Page A-36]


*1214
              PERSONS ENGAGED IN CRIMINAL OFFENSE HAVING WEAPON
              (Amended)
              F.S. 790.07(1) and (2)
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements;       1. (Defendant)
give 1a or 1b
as applicable      a. [[displayed] [used] [threatened to use] [attempted
                      to use]
                          [a weapon].]
                          [a firearm].]
                          [an electric weapon or device].]
                   b. [carried] a [weapon] [firearm], which was concealed
                      from the ordinary sight of another person.]
                2. [He] [She] did so while committing or attempting to
                   commit the felony of (felony alleged).
Notes to        1. Define the felony alleged. If Burglary, also define
Judge              crime that was object of the burglary.
                2. Define "attempt" (see page 55) and.
                3. Adapt the definition of the weapon or firearm alleged
                   from F.S. 790.001 as required by the allegations.

Explanation of amendments: This instruction appears on page 99 of the manual. The addition of "or firearm" clarifies the second Note to Judge.

[Page A-37]


*1215
              THROWING, MAKING, PLACING, PROJECTING, OR
              DISCHARGING DESTRUCTIVE DEVICE (New)
              F.S. 790.161(1)
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following element beyond
              a reasonable doubt:
Element         1. (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 F.S.
              790.001(4) as required by the allegations).

Explanation of proposed instructions: This instruction is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.

[Page A-38]


*1216
              THROWING, MAKING, PLACING, PROJECTING, OR
              DISCHARGING DESTRUCTIVE DEVICE (New)
              F.S. 790.161(2)
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements        1. (Defendant) willfully and unlawfully
                      [made]
                      [possessed]
                      [threw]
                      [placed]
                      [projected]
                      [discharged]
                      [attempted to [make] [possess] [throw] [place]
                      [project] [discharge]]
                   a destructive device.
Give those      2. (a) The act was committed with the intent to
parts of
paragraph 2                [do bodily harm to another.]
as applicable              [do property damage.]
                   (b) The act resulted in
                           [a disruption of governmental operations.]
                           [a disruption of commerce.]
                           [a disruption of the private affairs of
                           (victim).]
Definition      A "destructive device" is defined as (adapt from F.S.
              790.001(4) as required by the allegations).

Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.

[Page A-39]


*1217
              THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
              DESTRUCTIVE DEVICE (New)
              F.S. 790.161(3)
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements        1. (Defendant) willfully and unlawfully
                      [made]
                      [possessed]
                      [threw]
                      [placed]
                      [projected]
                      [discharged]
                      [attempted to [make] [possess] [throw] [place]
                      [project] [discharge]]
                   a destructive device.
                2. The act resulted in
                      [bodily harm to another.]
                      [property damage.]
Definition      A "destructive device" is defined as (adapt from F.S.
              790.001(4) as required by the allegations).

Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.

[Page A-40]


*1218
              THROWING, MAKING, PLACING, PROJECTING, OR DISCHARGING
              DESTRUCTIVE DEVICE (New)
              F.S. 790.161(4)
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements        1. (Defendant) willfully and unlawfully
                      [made]
                      [possessed]
                      [threw]
                      [placed]
                      [projected]
                      [discharged]
                      [attempted to [make] [possess] [throw] [place]
                      [project] [discharged]]
                   a destructive device.
                2. The act resulted in the death of another.
Definition      A "destructive device" is defined as (adapt from F.S.
              790.001(4) as required by the allegations).

Explanation of proposed instruction: This is based on the instruction on page 103 of the manual and on amendments to F.S. 790.161 in 1990.

[Page A-41]


*1219
              DEALER SELLING ARMS TO MINORS (Amended)
              F.S. 790.18
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following three elements
              beyond a reasonable doubt:
Elements        1. (Defendant) was engaged in the business of dealing in
                   arms as a source of revenue.
                2. In the course of that business (defendant) sold to
                   (minor alleged) the (weapon alleged).
                3. (Minor alleged) was at the time under the age of
                   eighteen years.
Definitions     A "dealer in arms" is a person who buys and sells weapons
              or firearms.
                A "(weapon or firearm alleged)" is legally defined as
              (adapt from F.S. 790.001 as required by the allegations).

Explanation of amendments: This instruction is on page 108 of the manual. The addition of "or firearm" clarifies the last sentence of this instruction.

[Page A-42]


*1220
              FELONS POSSESSING WEAPONS (Amended)
              F.S. 790.23
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements        1. (Defendant) had been convicted of (prior offense).
                2. After the conviction (defendant) knowingly
Give 2a or         a. [owned] [had in [his] [her] care, custody,
2b as                 possession or control]
applicable
                         [a firearm.]
                         [an electric weapon or device.]
                   b. [carried a (weapon alleged), which was concealed
                      from the ordinary sight of another person.]
Defense         If you find that the defendant's civil rights had been
              restored at the time of the offense, you shall find the
              defendant not guilty.
Definitions     "Convicted" means that a judgment has been entered in a
              criminal proceeding by a competent court pronouncing the
              accused guilty.
                A ["firearm"] ["electric weapon or device"] ["concealed
              weapon"] is legally defined as (adapt from F.S. 790.001 as
              required by the allegations).
Give if 2a      "Care" and "custody" mean immediate charge and control
alleged       exercised by a person over the named object. The terms
              care, custody and control may be used interchangeably.
                To "possess" means to have personal charge of or exercise
              the right of ownership, management or control over the thing
              possessed.


[Page A-43]


*1221
                Possession may be actual or constructive. If a thing is in
              the hand of or on the person, or in a bag or container in the
              hand of or on the person, or is so close as to be within
              ready reach and is under the control of the person, it is
              in the actual possession of that person.
                If a thing is in a place over which the person has control
              or in which the person has hidden or concealed it, it is in
              the constructive possession of that person.
                Possession may be joint, that is, two or more persons may
              jointly have possession of an article, exercising control
              over it. In that case, each of those persons is considered
              to be in possession of that article.
                If a person has exclusive possession of a thing, knowledge
              of its presence may be inferred or assumed.
                If a person does not have exclusive possession of a thing,
              knowledge of its presence may not be inferred or assumed.

Explanation of amendment: This instruction begins on page 111b of the manual. This change (addition of "knowingly" in paragraph (2)) is based on White v. State, 539 So.2d 577 (Fla.5th DCA 1989).

[Page A-44]


*1222
              SEXUAL BATTERY  VICTIM TWELVE YEARS OF AGE OR OLDER
               CIRCUMSTANCES SPECIFIED  (Amended)
              F.S. 794.011(4)
                Before you can find the defendant guilty of sexual battery
              upon a person twelve years of age or older under specified
              circumstances, the State must prove the following four
              elements beyond a reasonable doubt:
Elements        1. (Victim) was twelve years of age or older.
                2. a. [(Defendant) committed an act [upon] [with] (victim)
                      in which the sexual organ of the [(defendant)]
                      [(victim)] penetrated or had union with the [anus]
                      [vagina] [mouth] of the [(victim)] [(defendant)].]
                   b. [(Defendant) committed an act upon (victim) in which
                      the [anus] [vagina] of (victim) was penetrated by an
                      object.]
                3. a. [(Victim) was physically helpless to resist.]
                   b. [(Defendant) coerced (victim) to submit by
                      threatening to use force or violence likely to cause
                      serious personal injury and (victim) reasonably
                      believed the (defendant) had the present ability to
                      execute the threat.]
                   c. [(Defendant) coerced (victim) to submit by threat of
                      retaliation against (victim) or any other person and
                      (victim) reasonably believed that (defendant) had the
                      ability to execute the threat in the future.]
                   d. [(Defendant), without prior knowledge or consent of
                      (victim), administered or had knowledge of someone
                      else administering to (victim) a narcotic, anesthetic
                      or other intoxicating substance that mentally or


[Page A-45]


*1223
                      physically incapacitated (victim).]
                   e. [(Victim) was mentally defective and (defendant)
                      had reason to believe this or had actual knowledge
                      of that fact.]
                   f. [(Victim) was physically incapacitated.]
                4. The act was committed without the consent of (victim).
Definitions
Give in all     "Consent" means intelligent, knowing, and voluntary consent
cases         and does not include coerced submission.
Give if         Evidence of the victim's mental incapacity or defect, if
applicable    any, may be considered in determining whether there was an
              intelligent, knowing and voluntary consent.
                "Mentally incapacitated" means that a person is rendered
              temporarily incapable of appraising or controlling his or her
              conduct due to the influence of a narcotic, anesthetic or
              intoxicating substance administered to that person without
              his or her consent, or due to any other act committed upon
              that person without his or her consent.
                "Mentally defective" means that a person suffers from a
              mental disease or defect that renders that person
              temporarily or permanently incapable of appraising the
              nature of his or her conduct.
                "Union" is an alternative to penetration and means coming
              into contact.
Give if 3a      "Physically helpless" means that a person is unconscious,
alleged       asleep, or for any other reason physically unable to
              communicate unwillingness to act.
Give if 3b      "Serious personal injury" means great bodily harm or pain,
alleged       permanent disability, or permanent disfigurement.


[Page A-46]


*1224
Give if 3f      "Physically incapacitated" means that a person is bodily
alleged       impaired or handicapped and substantially limited in his or
              her ability to resist or flee an act.
Give if         However, any act done for bona fide medical purposes is
applicable    not a sexual battery.
Note to         In the event of multiple perpetrators, give instruction on
Judge         enhancement, F.S. 794.023.
Note to         The option of the word "[with] (victim)" in 2a is provided
Judge         to reflect the manner in which the crime was committed. See
              Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986),
              at pages 627, 628.

Explanation of amendments: The instruction begins on page 119 of the manual. The addition of "physically incapacitated" is based on 1989 amendments to F.S. 794.011.

[Page A-47]


*1225
              LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN
              THE PRESENCE OF CHILD; SEXUAL BATTERY (Revised)
              F.S. 800.04
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following two elements
              beyond a reasonable doubt:
Elements        1. (Victim) was under the age of sixteen years.
Give as         2. a. (Defendant)
applicable
Subsection            [made an assault upon (victim) in a lewd, lascivious
(1)                   or indecent manner.]
                      [handled or fondled (victim) in a lewd, lascivious
                      or indecent manner.]
Subsection         b. (Defendant) committed upon (victim) or forced or
(2)                   enticed (victim) to commit
                      [actual or simulated sexual intercourse.]
                      [deviate sexual intercourse.]
                      [sexual bestiality.]
                      [masturbation.]
                      [sadomasochistic abuse.]
                      [actual lewd exhibition of the genitals.]
                      [any act or conduct which simulated that sexual
                      battery was being or would be committed on (victim).]
Subsection         c. (Defendant)
(3)


[Page A-48]


*1226
                      [committed an act [upon] [with] (victim) in which the
                      sexual organ of the [(defendant)] [(victim)]
                      penetrated or had union with the [anus] [vagina]
                      [mouth] of [(victim)] [(defendant)].]
                      [committed an act upon (victim) in which the [anus]
                      [vagina] of (victim) was penetrated by an object.]
Subsection         d. (Defendant) knowingly committed a lewd or lascivious
(4)                   act in the presence of (victim).
Definitions
Give in all     Neither the victim's lack of chastity nor the victim's
cases         consent is a defense to the crime charged.
Give when       As used in regard to this offense the words "lewd,"
F.S.          "lascivious" and "indecent" mean the same thing. They mean a
800.04(1)     wicked, lustful, unchaste, licentious, or sensual intent on
charged       the part of the person doing an act.
Give when       An "assault" is an intentional, unlawful threat by word or
assault is    act to do violence to the person of another, coupled with an
charged       apparent ability to do so, and doing some act which creates
under F.S.    a well-founded fear in such other person that such violence
800.04(1)     is imminent.
Give when       As used in regard to this offense the words "lewd" and
F.S.          "lascivious" mean the same thing and mean a wicked, lustful,
800.04(4) is  unchaste, licentious, or sensual intent on the part of the
charged       person doing an act.
Note to         Give applicable definitions from F.S. 847.001 when F.S.
Judge         800.04(2) is charged.
Note to         There is no need to make reference to the words "without
Judge         committing the crime of sexual battery" because this refers to
              forcible sexual relations. Lanier v. State, 443 So.2d 178
              (Fla. 3d DCA 1983); Chapter 84-86, Laws of Florida.


[Page A-49]
*1227 Explanation of proposed revision: The instruction begins on page 122 of the manual. The revision is based on F.S. 800.04 as amended in 1990.

[Page A-50]


*1228
              ARSON  FIRST DEGREE (Amended)
              F.S. 806.01(1)
                Before you can find the defendant guilty of Arson, the
              State must prove the following [three] [four] elements
              beyond a reasonable doubt:
Elements        1. (Defendant) [damaged] [caused to be damaged] (structure
                   or contents alleged) by [fire] [explosion].
Give 2a or      2. a. The damage was done willfully and unlawfully.
2b
                   b. The damage was caused while defendant was engaged in
                      the commission of (felony alleged).
                3. The (structure alleged) was
Give 3a if         a. [a dwelling.]
charged
under F.S.
806.01(1)(a)
Give 3b if         b. [an institution in which the damage occurred during
charged               normal hours of occupancy.]
under F.S.
806.01(1)(b)
                      [an institution where persons are normally present.]
Give 3c if         c. [a structure.]
charged
under F.S.
806.01(1)(c)
Give only if    4. The defendant knew or had reasonable grounds to believe
charged            the (structure alleged) was occupied by a human being.
under F.S.
806.01(1)(c)


[Page A-51]


*1229
Definition;     "Structure" means:
give if
applicable      1. Any building of any kind.
F.S.            2. Any enclosed area with a roof over it.
806.01(3)       3. Any real property and its appurtenances.
                4. Any tent or other portable building.
                5. Any vehicle.
                6. Any vessel.
                7. Any watercraft.
                8. Any aircraft.
Give only if    Define the crime alleged. If burglary, also define crime
2b is alleged that was the object of burglary.

Explanation of amendments: The instruction begins on page 127 of the manual. The new language is added based on 1990 amendments to F.S. 806.01(1).

[Page A-52]


*1230
              ARSON  SECOND DEGREE (Amended)
              F.S. 806.01(2)
                Before you can find the defendant guilty of Arson
               Second Degree, the State must prove the following three
              elements beyond a reasonable doubt:
Elements        1. (Defendant) [caused to be damaged] [damaged] a
                   (structure alleged), owned by the defendant or
                   another, by [explosion] [fire].
Give 2a or      2. a. The damage was done willfully and unlawfully.
2b
                   b. The damage was caused while defendant was engaged
                      in the commission of (felony alleged).
                3. The (structure alleged) is a structure.
Definition    "Structure" means:
F.S.
806.01(3)       1. Any building of any kind.
                2. Any enclosed area with a roof over it.
                3. Any real property and its appurtenances.
                4. Any tent or other portable building.
                5. Any vehicle.
                6. Any vessel.
                7. Any watercraft.
                8. Any aircraft.
Give only if    Define the crime alleged. If burglary, also define crime
2b is alleged that was the object of burglary.

Explanation of amendments: The instruction begins on page 128 of the manual. The new language is added based on 1990 amendments to F.S. 806.01(2).

[Page A-53]


*1231
              CRIMINAL MISCHIEF (Amended)
              F.S. 806.13
                Before you can find the defendant guilty of criminal
              mischief, the state must prove the following three
              elements beyond a reasonable doubt:
Elements        1. (Defendant) injured or damaged (copy from charge).
                2. The property injured or damaged belonged to (person
                   alleged).
                3. The injury or damage was done willfully and
                   maliciously.
Give if         Among the means by which property can be injured or
applicable    damaged under the law is the placement of graffiti on it
              or other acts of vandalism to it.
Definitions     "Willfully" means intentionally, knowingly and
              purposely.
                "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.
Degrees;        The punishment provided by law for the crime of criminal
give up to    mischief is greater depending upon the value of the
the extent of property damaged. Therefore, if you find the defendant
the chargeas  guilty of criminal mischief, you must
applicable    determine by your verdict whether:
                a. [The damage to the property was $1,000 or greater.]
                   [By reason of the damage there was an interruption or
                   impairment of a business operation or public
                   communication, transportation, supply of water, gas
                   or power, or other public service which cost $1,000 or
                   more in labor and supplies to restore.]


[Page A-54]


*1232
                b. [The damage to the property was greater than $200 but
                   less than $1,000.]
                c. [The damage to the property was $200 or less.]

Explanation of amendment: The instruction appears on page 130 of the manual. The underlined sentence is based on a 1988 amendment to F.S. 806.13(1)(a).

[Page A-55]


*1233
              THEFT (Amended)
              F.S. 812.014
                Before you can find the defendant guilty of Theft, the
              State must prove the following two elements beyond a
              reasonable doubt:
Elements        1. (Defendant) knowingly and unlawfully [obtained]
                   [used] [endeavored to obtain] [endeavored to use]
                   the (property alleged) of (victim).
                2. [He] [She] did so with intent to, either temporarily
                   or permanently,
                     [deprive (victim) of [his] [her] right to the
                     property or any benefit from it.]
                     [appropriate the property of (victim) to [his]
                     [her] own use or to the use of any person not
                     entitled to it.]
Degrees;        If you find the defendant guilty of theft, you must
give if       determine by your verdict
              whether:
property is of
monetary        a. [The value of the property taken was $100,000 or
value up to        more.]
extent of       b. [The value of the property taken was $20,000 or more
charge             but less than $100,000.]
                c. [The value of the property taken was $300 or more but
                   less than $20,000.]
                d. [The value of the property taken was less than $300.]
Give if         e. [The property was [a will, codicil, or other
applicable         testamentary instrument.] [a firearm.] [a motor
                   vehicle.] [a horse.] [a cow.] [a pig.] [a kind of
                   livestock.] [a commercially farmed animal.] [an
                   aquaculture species raised at a permitted


[Page A-56]


*1234
                   aquaculture facility.] [a fire extinguisher.] [2000 or
                   more pieces of fruit.] [taken from a posted
                   construction site.]]
Inferences;     Proof that a person presented false identification not
give if       current in respect to name, address, place of employment
applicable    or other material aspect in connection with the leasing of
F.S.          personal property, or failed to return leased property
812.022(1)    within 72 hours of the termination of the leasing
              agreement, unless satisfactorily explained, gives rise to
              an inference that the property was obtained or is now used
              with unlawful intent to commit theft.
Inferences;     Proof of possession of recently stolen property, unless
give if       satisfactorily explained, give rise to an inference that
applicable    the person in possession of the property knew or should
F.S.          have known that the property had been stolen.
812.022(2)
Definitions;    "Obtains or uses" means any manner of:
give if
applicable        (a) Taking or exercising control over property.
F.S.
812.012(2)        (b) Making any unauthorized use, disposition, or
                      transfer of property.
                  (c) Obtaining property by fraud, willful
                      misrepresentation of a future act, or false
                      promise.
                  (d) 1. Conduct previously known as stealing; larceny;
                         purloining; abstracting; embezzlement;
                         misapplication; misappropriation;
                         conversion; or obtaining money or property
                         by false pretenses, fraud, deception; or
                      2. Other conduct similar in nature.
                "Endeavor" means to attempt or try.


[Page A-57]


*1235
F.S.            "Property" means anything of value, and includes:
812.012(3)
                  real property, including things growing on, affixed
                to and found in land;
                  tangible or intangible personal property, including
                rights, privileges, interests and claims; and
                  services.
F.S.            "Services" means anything of value resulting from a
812.012(5)    person's physical or mental labor or skill, or from the
              use, possession or presence of property, and includes:
                  repairs or improvements to property;
                  professional services;
                  private, public or government communication,
                transportation, power, water or sanitation services;
                  lodging accommodations; and
                  admissions to places of exhibition or entertainment.
Note to         It is error to inform the jury of a prior conviction.
Judge         Therefore, do not read the allegation of prior conviction
              or send the information or indictment into the jury room.
              The historical fact of a previous conviction shall be
              determined by the judge, and shall thereby fix the degree
              of the crime. State of Florida v. Harris, 356 So.2d 315
              (Fla. 1978).
F.S.            "Value" means:
812.012(9)
                The market value of the property at the time and place
              of the offense, or if that value cannot be satisfactorily
              ascertained, the cost of replacement of the property
              within a reasonable time after the offense.
                In the case of a written instrument that does not
              have a readily ascertainable market value, such as a


[Page A-58]


*1236
              check, draft or promissory note, the value is the amount
              due or collectible.
                In the case of any other instrument that creates,
              releases, discharges or otherwise affects any valuable
              legal right, privilege or obligation, the value is the
              greatest amount of economic loss that the owner of the
              instrument might reasonably suffer by virtue of the
              loss of the instrument.
                The value of a trade secret that does not have a readily
              ascertainable market value is any reasonable value
              representing the damage to the owner suffered by reason of
              losing an advantage over those who do not know of or use
              the trade secret.
                If the exact value of the property cannot be
              ascertained, you should attempt to determine a minimum
              value. If you cannot determine the minimum value, you must
              find the value is less than $300.
                Amounts of value of separate properties, involved in
              thefts committed pursuant to one scheme or course of
              conduct, whether the thefts are from the same person or
              several persons, may be totaled in determining the grade
              of the offense.

Explanation of amendments: The instruction begins on page 147 of the manual. The changes are based on 1990 amendments to F.S. 812.014(2)(c)5.

[Page A-59]


*1237
              CONTRIBUTING TO CHILD DELINQUENCY OR DEPENDENCY OR
              TO CHILD IN NEED OF SERVICES (Amended)
              F.S. 827.04(3)
                Before you can find the defendant guilty of contributing
              to a child's becoming a [delinquent child] [dependent
              child] [child in need of services] Delinquency or
              Dependency, the State must prove the following element
              beyond a reasonable doubt:
Element           [(Defendant) knowingly (read act alleged from charge),
                  which
                  [caused]
                  [tended to cause or encourage]
                  [contributed to]
                (victim) [to become] [becoming] a [delinquent]
                [dependent] child [in need of services].]
                  [(Defendant), by
                  [act]
                  [threat]
                  [command]
                  [persuasion]
                [induced] [endeavored to induce] (victim) to
                  [perform any act]
                  [follow any course of conduct]
                  [live]
                so as to cause or tend to cause (victim) to
                  [become a dependent child]
                  [remain a dependent child]
                  [become a delinquent child]
                  [remain a delinquent child]
                  [become a child in need of services]
                  [remain a child in need of services].]


[Page A-60]


*1238
Definitions;    "Child" means any person under the age of eighteen
F.S.          years.
827.01(1)
Note to         Prepare the definition of "delinquency," or of
Judge         "dependency," or "child in need of services" based on the
              statutory definitions in effect at the time of the alleged
              offense. See F.S. 39.01.

Explanation of amendments: The instruction begins on page 163 of the manual. The changes are based on 1990 amendments to F.S. 827.04.

[Page A-61]


*1239
              WORTHLESS CHECK  OBTAINING PROPERTY (Amended)
              F.S. 832.05(4)
Note to         This statute applies to a variety of orders to pay money
Judge         and "commercial paper," and a variety of types of drawees
              and transactions. The charge has been framed to cover the
              most common transaction encountered in criminal
              litigation. It can be readily modified to fit other
              transactions covered by the statute.
                Before you can find the defendant guilty of (crime
              charged), the State must prove the following seven
              elements beyond a reasonable doubt:
Elements        1. (Defendant)
                     [drew]
                     [made]
                     [uttered]
                     [issued]
                     [delivered]
                   the check admitted in evidence as State Exhibit ____.
                2. (Defendant) did so to obtain
                     [services.]
                     [goods.]
                     [wares.]
                     [(other thing of value alleged).]
                3. The [services] [goods] [wares] [(other thing of value
                   alleged)] had some monetary value.
                4. When (defendant) did so, there was not sufficient
                   money on deposit in the bank to pay the check.
                5. (Defendant) knew when he wrote the check that he did
                   not have was written there was not sufficient money
                   on deposit with the bank.


[Page A-62]


*1240
                6. (Defendant) knew he had there was no arrangement or
                   understanding with the bank for the payment of the check
                   when it was presented.
                7. The check was in the amount of $150.00 or more.
Defenses;       Even if you find all these elements are proved, you
give if       should go on to consider the defense. You must find the
applicable    defendant not guilty if you find either of the following
              two defenses to have been proved:
                1. (Name of payee) knew that (defendant's) funds and
                   credit at the bank at the time the check was given
                   were insufficient to pay the check; or
                 2. (Name of payee) had good reason to believe that
                   (defendant's) funds and credit at the bank at the
                   time the check was given were insufficient to pay the
                   check.
Give if         When an employee of a business receives a check, the
applicable    business must be regarded as knowing whatever the employee
              knows about the check.
Give if         The fact that (defendant) had previously issued a
applicable    worthless check to the payee did not, by itself, give
              (payee) reason to believe that (defendant)
              had insufficient funds to ensure payment of this check.

Explanation of amendment: This instruction is on pages 171-172 of manual. The underlined sentence is based on a 1988 amendment to F.S. 832.05(4)(a). Wording originally drawn by the committee was criticized in a letter from Mark F. Lewis. The committee agreed with Mr. Lewis and redrafted the paragraph based on his recommendation.

[Page A-63]


*1241
              PERJURY (Amended) (NOT IN AN OFFICIAL PROCEEDING 
              F.S. 837.012) (IN AN OFFICIAL PROCEEDING  F.S.
              837.02)
                Before you can find the defendant guilty of [Perjury Not
              in an Official Proceeding] [Perjury in an Official
              Proceeding], the State must prove the following five
              elements beyond a reasonable doubt:
Elements        1. (Defendant) took an oath or otherwise affirmed that
                   [he] [she] was obligated by conscience or by law to
                   speak the truth in (describe proceedings,
                   official or unofficial, in which the alleged oath was
                   taken).
                2. The oath or affirmation was made to (person allegedly
                   administering oath), who was a (official capacity).
                3. (Defendant), while under an oath, made the statement
                   (read from charge).
                4. The statement was false.
                5. (Defendant) did not believe the statement was true
                   when [he] [she] made it.
Give if         Knowledge of the materiality of the statement is not an
applicable    element of this crime, and the defendant's mistaken belief
F.S.          that [his] [her] statement was not material is not a
837.012(2) &  defense to the charge.
837.02(2)
Note to         Questions of the authority to administer oaths, whether
Judge F.S.    the form of the oath or attestation is required or
837.011       authorized by law, the official or unofficial nature of
              the proceedings and the materiality of a statement are
              matters of law.
Give if         The law requires the judge to decide if the alleged
applicable    statement is material, and I have decided that it is
F.S.          material. Therefore, you will not further concern yourself
837.011(3)    with this issue.


[Page A-64]


*1242
Note to         An instruction on recantation should be given when
Judge         raised as a defense. See F.S. 837.07; Carter v. State,
              384 So.2d 1255 (Fla. 1980).

Explanation of amendment: The instruction begins on page 175 of the manual. "F.S. 837.07" is added to the note.

[Page A-65]


*1243
              MAINTAINING A GAMBLING ESTABLISHMENT (Amended)
              F.S. 849.01-A (849.02)
Note to         F.S. 849.01 covers both the maintaining of a gambling
Judge         establishment and the permitting of gambling. Accordingly,
              separate instructions have been prepared for these
              offenses with the designations "A" and "B." F.S. 849.02
              proscribes the same conduct when one is acting as a
              servant, clerk, agent or employee. Therefore, the
              instructions for F.S. 849.01 may be given for charges
              under 849.02 by using appropriate language as indicated.
                Before you can find the defendant guilty of Maintaining a
              Gambling Establishment, the State must prove the following
              two elements beyond a reasonable doubt:
Elements        1. (Defendant),
                   a. [in person or by a servant, clerk or agent,]
Give 1b if         b. [acting as servant, clerk, agent or employee of
applicable            another,]
under F.S.         had a substantial degree of control over and kept or
849.02             maintained (place or articles alleged).
                2. The [place was] [articles were] habitually kept or
                   maintained for the purpose of gambling.
                A single instance or rare and isolated instances of
              placing bets or gambling would be insufficient to
              constitute the crime. But if the property was used at
              frequent intervals as a place or means for betting,
              gaming or gambling, the crime has been committed even if
              the principal use of the property is for some other lawful
              purpose.
                It is not necessary to prove that the defendant gambled,
              or received any profit from the gambling, or that [he]
              [she] wholly owned or controlled the property.


[Page A-66]


*1244
                It is not necessary to a conviction of this offense that
              there be direct and positive evidence of gambling. It is
              sufficient if implements, devices or apparatus commonly
              used by gambling houses or by gamblers are found under
              circumstances that convince you that the premises were
              kept or maintained for the purpose of gambling.
Give if         A servant, clerk, agent or employee of another who keeps
applicable    or maintains property for the purpose of gambling is
under F.S.    equally guilty with [his] [her] employer.
849.02
Definition      "Gambling" is a game of chance in which the participant
              risks money or property on the outcome with the
              expectation of gaining or losing as a result of the game.
Note to         If there is evidence of the exception referred to in
Judge         F.S. 849.093 and .085, an appropriate instruction should
              be given.

Explanation of amendments: This instruction is on page 199 of the manual. The addition of "and .085" is to ensure that F.S. 849.085 is not overlooked.

[Page A-67]


*1245
              DRUG ABUSE  USE OR POSSESSION OF DRUG PARAPHERNALIA
              (Amended)
              F.S. 893.147(1)
                Before you can find the defendant guilty of Use or
              Possession of Drug Paraphernalia, the State must prove the
              following two elements beyond a reasonable doubt:
Elements        1. (Defendant) used or had in [his] [her] possession
                   with intent to use drug paraphernalia.
                2. (Defendant) had knowledge of the presence of the drug
                   paraphernalia.
Definitions
Possession      To "possess" means to have personal charge of or exercise
              the right of ownership, management or control over the
              thing possessed.
                Possession may be actual or constructive. If a thing is
              in the hand of or on the person, or in a bag or container
              in the hand of or on the person, or is so close as to be
              within ready reach and is under the control of the person,
              it is in the actual possession of that person.
                If a thing is in a place over which the person has
              control or in which the person has hidden or concealed it,
              it is in the constructive possession of that person.
                Possession may be joint, that is, two or more persons
              may jointly have possession of an article, exercising
              control over it. In that case, each of those persons is
              considered to be in possession of that article.
                If a person has exclusive possession of a thing,
              knowledge of its presence may be inferred or assumed.
                If a person does not have exclusive possession of a
              thing, knowledge of its presence may not be inferred or
              assumed.


[Page A-68]


*1246
Drug            The term "drug paraphernalia" means all equipment,
Paraphernalia products, and materials of any kind which are used,
F.S. 893.145  intended for use, or designed for use in planting,
              propagating, cultivating, growing, harvesting,
              manufacturing, compounding, converting, producing,
              processing, preparing, testing, analyzing, packaging,
              repackaging, storing, containing, concealing, injecting,
              ingesting, inhaling, or otherwise introducing into
              the human body a controlled substance in violation of
              this chapter. It includes, but is not limited to:
Give specific   (1) Kits used, intended for use, or designed for use in
definition as planting, propagating, cultivating, growing, or harvesting
applicable    of any species of plant which is a controlled substance or
              from which a controlled substance can be derived.
                (2) Kits used, intended for use, or designed for use in
              manufacturing, compounding, converting, producing, processing,
              or preparing controlled substances.
                (3) Isomerization devices used, intended for use, or
              designed for use in increasing the potency of any species
              of plant which is a controlled substance.
                (4) Testing equipment used, intended for use, or
              designed for use in identifying, or in analyzing the
              strength, effectiveness, or purity of, controlled
              substances.
                (5) Scales and balances used, intended for use, or
              designed for use in weighing or measuring controlled
              substances.
                (6) Diluents and adulterants, such as quinine
              hydrochloride, mannitol, mannite, dextrose, and lactose
              used, intended for use, or designed for use in cutting
              controlled substances.
                (7) Separation gins and sifters used, intended for use,
              or designed for use in removing twigs and seeds from, or
              in otherwise cleaning or refining, cannabis.


[Page A-69]


*1247
                (8) Blenders, bowls, containers, spoons, and mixing
              devices used, intended for use, or designed for use in
              compounding controlled substances.
                (9) Capsules, balloons, envelopes, and other containers
              used, intended for use, or designed for use in packaging
              small quantities of controlled substances.
                (10) Containers and other objects used, intended for
              use, or designed for use in storing or concealing
              controlled substances.
                (11) Hypodermic syringes, needles, and other objects
              used, intended for use, or designed for use in
              parenterally injecting controlled substances into the
              human body.
                (12) Objects used, intended for use, or designed for
              use in ingesting, inhaling, or otherwise introducing
              cannabis, cocaine, hashish, or hashish oil into the
              human body, such as:
                (a) Metal, wooden, acrylic, glass, stone, plastic, or
              ceramic pipes with or without screens, permanent screens,
              hashish heads, or punctured metal bowls.
                (b) Water pipes.
                (c) Carburetion tubes and devices.
                (d) Smoking and carburetion masks.
                (e) Roach clips: meaning objects used to hold burning
              material, such as a cannabis cigarette, that has become
              too small or too short to be held in the hand.
                (f) Miniature cocaine spoons, and cocaine vials.
                (g) Chamber pipes.
                (h) Carburetor pipes.
                (i) Electric pipes.


[Page A-70]


*1248
                (j) Air-driven pipes.
                (k) Chillums.
                (l) Bongs.
                (m) Ice pipes or chillers.
Relevant        In addition to all other logically relevant factors, the
factors F.S.  following factors shall be considered in determining whether
893.146       an object is drug paraphernalia:
                (1) Statements by an owner or by anyone in control of
              the object concerning its use.
                (2) The proximity of the object, in time and space, to a
              direct violation of this act.
                (3) The proximity of the object to controlled
              substances.
                (4) The existence of any residue of controlled
              substances on the object.
                (5) Direct or circumstantial evidence of the intent of
              an owner, or of anyone in control of the object, to
              deliver it to persons whom [he] [she] knows, or should
              reasonably know, intend to use the object to
              facilitate a violation of this act. The innocence of an owner,
              or of anyone in control of the object, as to a direct
              violation of this act shall not prevent a finding that the
              object is intended for use, or designed for use, as drug
              paraphernalia.
                (6) Instructions, oral or written, provided with the
              object concerning its use.
                (7) Descriptive materials accompanying the object which
              explain or depict its use.
                (8) Any advertising concerning its use.


[Page A-71]


*1249
                (9) The manner in which the object is displayed for
              sale.
                (10) Whether the owner, or anyone in control of the
              object, is a legitimate supplier of like or related items
              to the community, such as a licensed distributor or dealer
              of tobacco products.
                (11) Direct or circumstantial evidence of the ratio of
              sales of the object or objects to the total sales of the
              business enterprise.
                (12) The existence and scope of legitimate uses for the
              object in the community.
                (13) Expert testimony concerning its use.

Explanation of amendments: This instruction begins on page 245 of the manual. The title and paragraph (1) is revised to conform to the wording of F.S. 893.147(1).

[Page A-72]


*1250 SCHEDULE OF LESSER INCLUDED OFFENSES


  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
First degree              Second degree (depraved     Second degree (felony)
  (premeditated) murder     mind) murder  782.04(2)     murder  782.04(3)
   782.04(1)              Manslaughter  782.07       Third degree (felony)
                                                        murder  782.04(4)
                                                      Attempt
                                                      Vehicular homicide 
                                                        782.071
                                                      Culpable negligence 
                                                        784.05(2)
                                                      Aggravated battery 
                                                        784.045
                                                      Aggravated assault 
                                                        784.021
                                                      Battery  784.03
                                                      Assault  784.011
                                                      [*]
First degree (felony)     Second degree (depraved     Attempt
  murder  782.04(1)         mind)[*a] murder 
                            782.04(2)                 Second degree 
                          Manslaughter  782.07          (depraved mind)
                                                        murder  782.04(2)
                                                      Second degree (felony)
                                                        murder  782.04(3)


[Page A-73]


*1251
  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
                                                      Third degree (felony)
                                                        murder  782.04(4)
                                                      Manslaughter  782.07
                                                      Aggravated battery 
                                                        784.045
                                                      Aggravated assault 
                                                        784.021
                                                      Battery  784.03
                                                      Assault  784.011
                                                      [*b]
Second degree (depraved   Manslaughter  782.07       Third degree (felony)
  mind)                                                 murder  782.04(4)
  murder  782.04(2)                                   Attempt
                                                      Vehicular homicide 
                                                        782.071
                                                      Culpable negligence 
                                                        784.05(2)
                                                      Aggravated battery 
                                                        784.045
                                                      Aggravated assault 
                                                        784.021
                                                      Battery  784.03
                                                      Assault  784.011
                                                      [*b]
Second degree (felony)    None                        Third degree (felony)
  murder                                                murder  782.04(4)
  782.04(3)                                             Attempt


[Page A-74]


*1252
  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
Third degree (felony)      None                       Attempt
  murder  782.04(4)                                  Aggravated assault
                                                         784.021
                                                      Battery  784.03
                                                      Assault  784.011
Manslaughter  782.07      None                        Attempt[*c]
                                                      Aggravated assault 
                                                        784.021
                                                      Battery  784.03
                                                      Assault  784.011
                                                      Vehicular homicide 
                                                        782.071
                                                      Culpable negligence 
                                                        784.05(1)[*d]
                                                      Culpable negligence 
                                                        784.05(2)[*d]
Assault  784.011          None                        Attempt
Aggravated assault        Assault  784.011            Attempt
   784.021(1)(a)                                      Improper exhibition of
                                                        dangerous weapons or
                                                        firearms  790.10
                                                      Discharging firearms
                                                        in public  790.15
Aggravated assault        Assault  784.011            Attempt
  784.021(1)(b)


[Page A-75]


*1253
  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
Battery  784.03           None                         Attempt
Aggravated battery        Battery  784.03             Attempt
  784.045(1)(a)
Aggravated battery        Battery  784.03             Attempt
  784.045(1)(b)                                       Improper exhibition of
                                                        dangerous weapons or
                                                        firearms  790.10
                                                      Discharging firearms
                                                        in public  790.15
Culpable negligence       Culpable negligence         None
  784.05(2)                 784.05(1)
Assault of law            None                       Attempt
  enforcement officer                               Assault  784.011[*e]
  784.07(2)
Battery of law            None                       Attempt
  enforcement officer                                Battery  784.03[*e]
  784.07(2)
Kidnapping  787.01        False imprisonment  787.02  Attempt
                                                      Aggravated assault 
                                                        784.021(1)(b)
                                                      Battery  784.03(1)(a)
                                                      Assault  784.011


[Page A-76]


*1254
  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
False imprisonment        None                        Attempt
  787.02                                              Assault  784.011
                                                      Battery  784.03(1)(a)
Carrying concealed        None                        Attempt
  weapons  790.01(1)
Carrying concealed        None                        Attempt
  firearms  790.01(2)
Carrying pistol or        None                        Attempt
  repeating rifle
  without first
  obtaining license
   790.06
Persons engaged in        None                        Attempt (may be
  criminal offense,                                     applicable when
  having weapons                                        concealed weapon
   790.07(1)                                            is charged)
                                                      Carrying concealed
                                                        weapons  790.01(1)
                                                      Improper exhibition
                                                        of dangerous weapons
                                                          790.10
Persons engaged in        None                        Attempt (may be
  criminal offense,                                     applicable when
  having weapons                                        concealed firearm
  790.07(2)                                             is charged)
                                                      Carrying concealed
                                                        firearm  790.01(2)
                                                      Improper exhibition of
                                                        dangerous firearms
                                                         790.10


[Page A-77]


*1255
  CHARGED OFFENSES             CATEGORY 1                  CATEGORY 2
Discharging firearms      None                        Attempt
  in public  790.15
Furnishing weapons to     None                        Attempt
  minors under 18
  years of age, etc. 
  790.17
Selling arms to minors    None                        Attempt
  by dealers  790.18
Felons; possession of     None                        Attempt (may be
  firearms unlawful;                                    applicable when
  exception; penalty                                    concealed weapon is
   790.23                                               charged)
                                                      Carrying concealed
                                                        firearm  790.01(2)
                                                      Carrying concealed
                                                        weapon  790.01(1)
Sexual battery            Battery  784.03             Attempt
   794.011(2)                                         Assault  784.011
                                                      Aggravated assault
                                                         784.021(1)(a)
                                                      Aggravated battery
                                                         784.045(1)(a)
Sexual battery            Battery  784.03             Attempt
   794.011(3)                                         Aggravated battery
                                                         784.045(1)(a)
                                                      Aggravated assault
                                                         784.021(1)(a)
                                                      Assault  784.011
                                                      Sexual battery
                                                         794.011(4)
                                                      Sexual battery
                                                         794.011(5)


[Page A-78]


*1256
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Sexual battery      Battery  784.03       Attempt
  794.011(4)                                           Aggravated assault 
                                                        784.021(1)(a)
                                                       Assault  784.011
                                                       Sexual battery 
                                                        794.011(5)
Sexual battery  794.011(5)      Battery  784.03       Attempt
                                                       Assault  784.011
Unnatural and lascivious act   None                   Attempt
  800.02
Exposure of sexual organs      None                   Unnatural and
  800.03                                                lascivious act 
                                                        800.02
Lewd, lascivious, or indecent   None                   Attempt
  assault or act upon or in                            Assault  784.011
  presence of child  800.04                           Battery  784.03
                                                       Unnatural and
                                                        lascivious act 
                                                        800.02
Arson  806.01(1)              None Arson 806.01(2)  Arson  806.01(2)[*f]
                                Criminal mischief     Attempt
                                806.13(1)(b)1         Criminal mischief 
                                                       806.13(1)(b)2
                                                      Criminal mischief 
                                                       806.13(1)(b)3
                                                      Criminal mischief 
                                                       806.13(2)
Criminal mischief              None                   Attempt
  806.13(1)(b)1


[Page A-79]


*1257
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Criminal mischief              Criminal mischief     Attempt
  806.13(1)(b)2                    806.13(1)(b)1
Criminal mischief              Criminal mischief     Attempt
  806.13(1)(b)3                    806.13(1)(b)1
                                Criminal mischief 
                                806.13(1)(b)2
Burglary with assault or        Burglary  810.02(3)   Attempt
  battery or while armed                              Burglary of dwelling
  810.02(2)                                              or with human
                                                         being inside 
                                                         810.02(3)
                                                       Trespass 
                                                         810.08(2)(a)
                                                       Trespass 
                                                         810.08(2)(c)
Burglary of dwelling or with    Burglary  810.02(3)   Attempt
  human being inside                                  Trespass 
   810.02(3)                                             810.08(2)(a)
                                                       Trespass 
                                                         810.08(2)(b)
Burglary  810.02(3)                None               Attempt
                                                       Trespass 
                                                         810.08(2)(a)
Possession of burglary tools       None               None
  810.06
Trespass in structure or            None               Attempt (except
  conveyance  810.08                                    refuse to depart)
Trespass on property other than     None               Attempt
  structure or conveyance 
  810.09


[Page A-80]


*1258
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Grand theft  first degree          None               Grand theft  second
  812.014(2)(a)                                           degree
                                                         812.014(2)(b)
                                                       Grand theft  third
                                                         degree
                                                         812.014(2)(c)
                                                       Petit theft 
                                                         812.014(2)(c)
                                                       Cf. Gilford v. State,
                                                         313 So.2d 729 (Fla.
                                                         1975)
                                                       Trade secrets 
                                                         812.081
Grand theft  second degree         None               If value is alleged
  812.014(2)(b)                                         Grand theft  third
                                                         degree
                                                         812.014(2)(c)
                                                       Petit theft 
                                                         812.014(2)(d)
                                                       Trade secrets 
                                                         812.081
Grand theft  third degree          None               If value is alleged
  812.014(2)(c)                                        Petit theft 
                                                         812.014(2)(d)
                                                       Trade secrets 
                                                         812.081
Petit theft  812.014(2)(d)         None               No attempt  endeavor
                                                         is included within
                                                         definition of theft
Possession of altered property     None               Attempt
  812.016
Dealing in stolen property         None               None
  trafficking  812.019(1)


[Page A-81]


*1259
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Dealing in stolen property         812.019(1)         Attempt
  managing and trafficking 
  812.019(2)
Robbery with a firearm or deadly    Robbery with a     Attempt
  weapon  812.13(2)(a)             weapon           Grand theft 1st
                                      812.13(2)(b)       degree 
                                                         812.013(2)(a)
                                    Robbery           Grand theft 2d degree
                                      812.13(2)(c)         812.014(2)(b)
                                    Petit theft      Grand theft 3d degree
                                      812.014(2)(d)        812.014(2)(c)
                                                       Battery  784.03
                                                       Aggravated battery 
                                                         784.045
                                                       Assault  784.011
                                                       Aggravated assault
                                                          784.021
                                                       Extortion  836.05
                                                       See Davis v. State,
                                                         277 So.2d 300 (Fla.
                                                         2d DCA 1973)
Robbery with a weapon     Robbery         Attempt
   812.13(2)(b)     812.13(2)(c)
                                   Petit theft      Grand theft 1st degree
                                     812.014(2)(d)           812.014(2)(a)
                                                      Grand theft 2d degree
                                                         812.014(2)(b)
                                                      Grand theft 3d degree
                                                         812.014(2)(c)
                                                      Battery  784.03
                                                      Aggravated battery
                                                         784.045
                                                     Assault  784.011[*g]

[Page A-82]


*1260
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
                                                       Aggravated assault
                                                          784.021
                                                       Extortion  836.05
                                                       See Davis v. State,
                                                         277 So.2d 300 (Fla.
                                                         2d DCA 1973)
Robbery  812.13(2)(c)          Petit theft          Attempt
                                   812.014(2)(d)        Grand theft 1st
                                                         degree 
                                                         812.014(2)(a)
                                                       Grand theft 2d degree
                                                           812.014(2)(b)
                                                       Grand theft 3d degree
                                                           812.014(2)(c)
                                                       Battery  784.03
                                                       Assault  784.011
                                                       Aggravated assault
                                                          784.021
                                                       Extortion  836.05
                                                       See Davis v. State,
                                                         277 So.2d 300 (Fla.
                                                         2d DCA 1973)
Child abuse  827.04(1)        Child abuse           Attempt, if willfully
                                   827.04(2)            Negligent treatment
                                                         of child  827.05
Child abuse  827.04(2)         None                   Attempt, if willfully
                                                      Negligent treatment of
                                                         child  827.05
Forgery  831.01                None                   Attempt
Uttering forged instrument     None                   No attempt  King v.
   831.02                                             State, 317 So.2d 852
                                                       (Fla. 1st DCA 1975


[Page A-83]


*1261
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Stopping payment; purchase of   None                   Attempt, except when
  farm or grove products                                uttering is
   832.04                                              charged  832.04
                                                         under $50
Stopping payment with intent    None                   Attempt, except when
  to defraud  832.041                                   uttering is
                                                         charged; 832.04 if
                                                         farm or grove
                                                         product; 832.041
                                                         under $50
                                                       Worthless check
                                                          832.05(2) (second
                                                         degree misdemeanor)
Worthless checks  832.05(2)    None                   Attempt, except when
                                                         uttering is charged
Obtaining property by           Worthless check       Attempt, except when
  worthless                        832.05(2)            uttering is charged
  checks  832.05(4)              (second degree
                                  misdemeanor)
Perjury not in official         None                   None
   proceeding  837.012
Perjury if official proceeding  None                   None
   837.02
Perjury by contradictory        None                   None
  statements  837.021
False reports to law            None                   None
  enforcement authorities 
  837.05
False official statements       None                   None
   837.06


[Page A-84]


*1262
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Bribery  838.015               None                   Attempt if only give
                                                         or accept is
                                                         charged
Unlawful compensation for       None                   Attempt if only give
  official behavior  838.016                            or accept is
                                                         charged
Corruption by threat against    None                   Attempt if only harm
  public servant  838.021                               is charged
Bribery in athletic contests   None                   Attempt only if give
   838.12(1)                                              is charged
Bribery in athletic contests   None                   Attempt only if
   838.12(2)                                              accept is charged
Keeping gambling house  849.01  None                   Lottery 
                                                         849.09(1)(f)
                                                       Lottery 
                                                         849.09(1)(k)
                                                       Lottery  849.11
Agents, servants, etc., of      None                   Lottery 
  keeper of gambling house                              849.09(1)(f)
   849.02
Renting house for gambling      None                   Lottery 
  purposes  849.02                                      849.09(1)(k)
                                                       None
Permitting minors and persons   None                   Permitting gambling
  under guardianship to gamble                           and billiard or
   849.04                                              pool table by holder
                                                         of license  849.07
                                                       Playing at games of
                                                         chance by lot 
                                                         849.11


[Page A-85]


*1263
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Gambling  849.08               None                   None
Lottery  849.09(1)(a)          None                   Attempt
                                                       Lottery 
                                                         849.09(1)(f)
                                                       Lottery 
                                                         849.09(1)(g)
                                                       Lottery 
                                                         849.09(1)(h)
                                                       Lottery 
                                                         849.09(1)(i)
                                                       Lottery 
                                                         849.09(1)(j)
                                                       Lottery 
                                                         849.09(1)(k)
                                                       Playing at game of
                                                         chance by lot 
                                                         849.11
                                                       Gambling devices,
                                                         etc.  849.231
Lottery  849.09(1)(b)          None                   Attempt
                                                       Lottery 
                                                         849.09(1)(f)
                                                       Lottery 
                                                         849.09(1)(g)
                                                       Lottery 
                                                         849.09(1)(h)
                                                       Lottery 
                                                         849.09(1)(i)
                                                       Lottery 
                                                         849.09(1)(j)
                                                       Lottery 
                                                         849.09(1)(k)
                                                       Gambling devices,
                                                         etc.  849.231
Lottery  849.09(1)(c)          None                   Attempt
                                                       Lottery 
                                                         849.09(1)(f)
                                                       Lottery 
                                                         849.09(1)(g)


[Page A-86]


*1264
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
                                                       Lottery 
                                                         849.09(1)(h)
                                                       Lottery 
                                                         849.09(1)(i)
                                                       Lottery 
                                                         849.09(1)(j)
                                                       Lottery 
                                                         849.09(1)(k)
                                                       Gambling devices,
                                                         etc.  849.231
Lottery  849.09(1)(d)          None                   Attempt
                                                       Lottery 
                                                         849.09(1)(f)
                                                       Lottery 
                                                         849.09(1)(g)
                                                       Lottery 
                                                         849.09(1)(h)
                                                       Lottery 
                                                         849.09(1)(i)
                                                       Lottery 
                                                         849.09(1)(j)
                                                       Lottery 
                                                         849.09(1)(k)
                                                       Playing at game of
                                                         chance by lot 
                                                         849.11
                                                       Gambling devices,
                                                         etc.  849.231
Lottery  849.09(1)(g)          None                   Attempt
Lottery  849.09(1)(h)          None                   Attempt
Lottery  849.09(1)(k)          None                   Attempt
Bookmaking on grounds of         None                   Attempt
  permit-holder  550.361
  (adapted from former 849.24)
Bookmaking  849.25(1) and (2)   None                   Attempt


[Page A-87]


*1265
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Bookmaking 849.25(3)            Bookmaking 849.25(2)   Attempt
                                                       Bookmaking on grounds
                                                         of permit
                                 holder 550.361
Driving under the influence    None                   Attempt
   316.193(1)
DUI with damage to property or  DUI  316.193(1)        None
  person  316.193(3)(c)1
DUI with serious bodily injury  DUI  316.193(1)       DUI  316.193(3)(c)1
   316.193(3)(c)2
DUI manslaughter                DUI  316.193(1)       Vehicular homicide 
   316.193(3)(c)3                                         782.071
                                                       DUI  316.193(3)(c)2
                                                       DUI  316.193(3)(c)1
Sale, manufacture, delivery or  None                   Attempt, except when
  possession with intent to                              delivery is
  sell, manufacture or deliver                           charged;
  controlled substance                                893.13(1)(g) if
   893.13(1)(a)                                           possession or
                                                         delivery of
                                                         cannabis charged
                                                       893.13(1)(f) if
                                                         possession is
                                                         charged[*h]

[Page A-88]


*1266
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Sale, delivery or possession    None                   Attempt, except when
  of more than 10 grams of                               delivery is charged
  controlled substance                                  893.13(1)(a)
   893.13(1)(b)                                         893.13(1)(f) if
                                                         possession is
                                                         charged
Delivery of controlled         None                    893.13(1)(a)
  substance to person under                           893.13(1)(g) if
  18 years old  893.13(1)(c)                            cannabis charged
Bringing controlled substance  None                    Attempt
  into state  893.13(1)(d)                            893.13(1)(f)
                                                       893.13(1)(g) if
                                                         cannabis charged
Possession of controlled       None                    Attempt 893.13(1)(g)
  substance  893.13(1)(f)                               if cannabis
                                                         charged
Offense of possession or       None                    Attempt, except when
  delivery of not more than                              delivery is charged
  20 grams of cannabis 
  893.13(1)(g)
Obtaining controlled           None
  substances by fraud 
  893.13(3)(a)1
Sale, purchase, etc., near     None                    Sale, purchase,
  public school  893.13(1)(e)                           manufacture, etc.,
                                                         893.13(1)-(4)
Possession of drug             None                    Attempt
  paraphernalia
   893.147(1)


[Page A-89]


*1267
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Delivery, possession with       None                   Attempt, except when
  intent to deliver, or                                 delivery is charged
  manufacture with intent
  to deliver drug
  paraphernalia  893.147(2)
Delivery of drug paraphernalia  None                   None
  to a minor  893.147(3)
Trafficking in cannabis        None                   Attempt, except when
   893.135(1)(a)                                      delivery is charged
                                                       893.13(1)(a) if sale,
                                                         manufacture or
                                                         delivery is charged
                                                       Bringing cannabis
                                                         into state 
                                                         893.13(1)(d)
                                                       Possession of
                                                         cannabis 
                                                         893.13(1)(f)
                                                       Possession or
                                                         delivery of
                                                         cannabis 
                                                         893.13(1)(g)
Trafficking in cocaine          None                   Attempt, except when
  893.135(1)(b)                                          delivery is charged
                                                       893.13(1)(a) if sale,
                                                         manufacture or
                                                         delivery is charged
                                                       Bringing cocaine into
                                                         state 
                                                         893.13(1)(d)
                                                       Possession of cocaine
                                                          893.13(1)(f)


[Page A-90]


*1268
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Trafficking in illegal drugs   None                   Attempt, except when
   893.135(1)(c)                                      delivery is charged
                                                       893.13(1)(a) if sale,
                                                         manufacture or
                                                         delivery is charged
                                                       Bringing same illegal
                                                         drug as charged
                                                         into state 
                                                         893.13(1)(d)
                                                       Possession of same
                                                         illegal drug 
                                                         893.13(1)(f)
Trafficking in phencyclidine   None                   Attempt, except when
   893.135(1)(d)                                      delivery is charged
                                                       893.13(1)(a) if sale,
                                                         manufacture or
                                                         delivery is charged
                                                       Bringing
                                                         phencyclidine into
                                                         state 
                                                         893.13(1)(d)
                                                       Possession of
                                                         phencyclidine 
                                                         893.13(1)(f)
Trafficking in methaqualone    None                   Attempt, except when
   893.135(1)(d)                                        delivery is charged
                                                       893.13(1)(a) if sale,
                                                         manufacture or
                                                         delivery is charged
                                                       Bringing methaqualone
                                                         into state 
                                                         893.13(1)(d)
                                                       Possession of
                                                         methaqualone 
                                                         893.13(1)(f)


[Page A-91]


*1269
  CHARGED OFFENSES                        CATEGORY 1            CATEGORY 2
Contraband  951.22             None                   The nature of the
                                                        contraband may give
                                                        rise to misdemeanor,
                                                        lesser included
                                                        offenses. See
                                                        Cooper v. State,
                                                        512 So.2d 1071 (Fla.
                                                         1st DCA 1987);
                                                        Moore v. State,
                                                        512 So.2d 1149 (Fla.
                                                        1st DCA 1987).

Explanation of amendments: The committee has not reviewed the Schedule in detail. The changes, therefore, do not necessarily fully update it. Only matters specifically brought to the committee's attention are addressed above.

[Page A-92]
NOTES
[*]  But see Martin v. State, 342 So.2d 501 (Fla. 1977); Drotar v. State, 433 So.2d 1005 (Fla. 3d DCA 1983), holding that nonhomicide lessers should not be given when the only issue is whether the death was a lawful or unlawful homicide, but should be given if there is an issue of causation, i.e., whether death was caused by defendant's act or some other unconnected cause. When a nonhomicide offense is a necessarily lesser included offense of the homicide offense, an instruction on the lesser may be necessary. See certified question in Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987), rev'd, 531 So.2d 338 (Fla. 1988).
[*a]  See Scurry v. State, 521 So.2d 1077 (Fla. 1988).
[*b]  But see Martin v. State, 342 So.2d 501 (Fla. 1977).
[*c]  But see Smith v. State, 330 So.2d 526 (Fla. 4th DCA 1976), and Murray v. State, 328 So.2d 501 (Fla. 4th DCA 1976).
[*d]  See Taylor v. State, 444 So.2d 931 (Fla. 1984).
[*e]  Rotenberry v. State, 468 So.2d 971 (Fla. 1985)
[*f]  See Higgins v. State, 565 So.2d 698 (Fla. 1990).
[*g]  But see Richardson v. State, 523 So.2d 746 (Fla. 5th DCA 1988); Sands v. State, 542 So.2d 436 (Fla. 2d DCA 1989).
[*h]  Provided that charged offense is a second degree felony under section 893.13(1)(a)1.
