          Supreme Court of Florida
                                   ____________

                                  No. SC17-2013
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                     REPORT 2017-09.

                                  [March 8, 2018]

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Criminal

Cases (Committee) has submitted proposed changes to the standard jury

instructions, including amending specific instructions and adopting new ones. The

Committee asks the Court to authorize the new and amended standard jury

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

Const.

      The Committee proposes amending standard criminal jury instructions 3.9(c)

(Eyewitness Identification), 5.1 (Attempt to Commit Crime), 21.10 (Tampering

with a [Witness] [Victim] [Informant]), and 21.12 (Corruption by [Harm] [Threat

of Harm] Against a Public Servant). In addition, the Committee proposes the

following new instructions: 2.13 (Prior Inconsistent Statement as Impeachment);
8.26 (Sexual Cyberharassment); 25.13(f) ([Ownership] [Lease] [Rental] of a Place

for [[Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a Controlled

Substance Intended for Sale or Distribution]); and 28.19 (Reckless [Operation of a

Vessel] [Manipulation]). Following publication in The Florida Bar News, the

Committee received comments pertaining to the proposals to add or amend

instructions 2.13, 8.26, and 25.13(f). The more significant amendments to the

instructions are discussed below.

      First, new instruction 2.13, if applicable and requested, informs the jurors

how they are allowed to consider prior inconsistent statements introduced at trial

for impeachment purposes only.1 Next, we amend instruction 3.9(c) on the basis

that the Legislature enacted section 92.70, Florida Statutes (2017), effective

October 1, 2017. See ch. 2017-91, Laws of Fla. Section 92.70 pertains to

eyewitness identification and requires compliance with specific lineup procedures.

Instruction 3.9(c), as amended, instructs jurors as to those procedures and that they

may consider evidence of compliance or lack of compliance with those procedures

to determine the reliability of eyewitness identifications.




       1. Comments to the instructions also are added or amended based upon the
Committee’s proposals but are not discussed, as we caution all interested parties
that any comments associated with the instructions reflect only the opinion of the
Committee and are not necessarily indicative of the views of this Court as to their
correctness or applicability.


                                         -2-
      Having considered the Committee’s report and the comments submitted, we

authorize for publication and use new and amended instructions 2.13, 3.9(c), 5.1,

8.26, 21.10, 21.12, 25.13(f), and 28.19, as proposed, and as set forth in the

appendix to this opinion.2 New language is indicated by underlining, and deleted

language is indicated by struck-through type. In authorizing the publication and

use of these instructions, we express no opinion on their correctness and remind all

interested parties that this authorization forecloses neither requesting additional or

alternative instructions nor contesting the legal correctness of the instructions. The

instructions as set forth in the appendix shall become effective when this opinion

becomes final.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.

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

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



       2. The amendments as reflected in the appendix are to the Criminal Jury
Instructions as they appear on the Court’s website at www.floridasupremecourt.org
/jury_instructions/instructions.shtml. We recognize that there may be minor
discrepancies between the instructions as they appear on the website and the
published versions of the instructions. Any discrepancies as to instructions
authorized for publication and use after October 25, 2007, should be resolved by
reference to the published opinion of this Court authorizing the instruction.

                                         -3-
Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff
Liaison, Office of the State Courts Administrator, Tallahassee, Florida,

      for Petitioner




                                       -4-
                                    APPENDIX

     2.13 PRIOR INCONSISTENT STATEMENT AS IMPEACHMENT

      To be given if applicable and if requested.
      The evidence that a witness may have made a prior statement that is
inconsistent with [his] [her] testimony in court should be considered only for
the purpose of weighing the credibility of the witness’s testimony and should
not be considered as evidence or proof of the truth of the prior statement or
for any other purpose.

                                    Comments

      This instruction should not be used for prior inconsistent statements that are
admissible as substantive evidence and not merely as impeachment, e.g., prior
testimony at a trial, hearing or other proceeding (§ 90.801(2)(a), Fla. Stat.) or
statements by a defendant (§ 90.803(18), Fla. Stat.).

      This instruction was adopted in 2018.



                   3.9(c) EYEWITNESS IDENTIFICATION

     Give if eyewitness identification is a disputed issue and if requested.
     You have heard testimony of eyewitness identification. In deciding how
much weight to give to this testimony, you may consider the various factors
mentioned in these instructions concerning credibility of witnesses.

      In addition to those factors, in evaluating eyewitness identification
testimony, you may also consider:

      1. The capacity and opportunity of the eyewitness to observe the
         offender based upon the length of time for observation and the
         conditions at the time of observation, including lighting and
         distance.

      2. Whether the identification was the product of the eyewitness’s own
         recollection or was the result of influence or suggestiveness.



                                        -5-
      3. The circumstances under which the defendant was presented to the
         eyewitness for identification.

      4. Any inconsistent identifications made by the eyewitness.

      5. Any instance in which the eyewitness did not make an identification
         when given the opportunity to do so.

      6. The witness’s familiarity with the subject identified.

      7. Lapses of time between the event and the identification[s].

      8. Whether the eyewitness and the offender are of different races or
         ethnic groups, and whether this may have affected the accuracy of
         the identification.

      9. The totality of circumstances surrounding the eyewitness’s
         identification.

       Lineup Requirements. Give if applicable. § 92.70, Fla. Stat.
       You have heard testimony concerning a [live] [photo] lineup conducted
by a law enforcement agency. Florida law requires that the person conducting
the lineup must not have participated in the investigation of the crime alleged
and must not have been aware of which person in the lineup was the suspect.

      When an independent administrator was not used. Give as applicable.
      As an alternative, it is permissible under Florida law if

      [an automated computer program automatically administered the photo
lineup directly to an eyewitness and prevented the person conducting the
lineup from seeing which photograph the eyewitness viewed until after the
procedure was completed.]

      [photographs were placed in folders, randomly numbered, and shuffled
and then presented to an eyewitness such that the person conducting the
lineup did not see or did not track which photograph was presented to the
eyewitness until after the procedure was completed.]




                                      -6-
      [the lineup procedure achieved neutral administration and prevented
the person conducting the lineup from knowing which photograph was
presented to the eyewitness during the identification procedure.]

      Give in all cases involving a lineup.
      Also, before conducting a lineup, the eyewitness must be instructed that:

      1. The perpetrator might or might not be in the lineup;

      Give #2 only when an independent administrator was used.
      2. The person conducting the lineup does not know the suspect’s
identity;

      3. The eyewitness should not feel compelled to make an identification;

     4. It is as important to exclude innocent persons as it is to identify the
perpetrator; and

      5. The investigation will continue with or without an identification.

      The eyewitness must acknowledge, in writing, that he or she received a
copy of the lineup instructions. If the eyewitness refused to sign a document
acknowledging receipt of the instructions, the person conducting the lineup
must document the refusal of the eyewitness to sign a document
acknowledging receipt of the instructions, and the person conducting the
lineup must sign the acknowledgment document himself or herself.

      You may consider compliance or noncompliance with these
requirements to determine the reliability of an eyewitness identification made
during a lineup procedure.

                                   Comment

      This instruction was adopted in 20123 [141 So. 3d 132] and amended in
2013 [122 So. 3d 302], and 2018.




                                      -7-
                     5.1 ATTEMPT TO COMMIT CRIME
                            § 777.04(1), Fla. Stat.

      Use when attempt is charged or is a lesser included offense.
      [To prove the crime of Attempted to Commit (crime chargedattempted),
the State must prove the following two elements beyond a reasonable doubt:]

      Use when necessary to define “attempt” as an element of another crime.
      [In order to prove that the defendant attempted to commit the crime of
(crime chargedattempted), the State must prove the following beyond a
reasonable doubt:]

      1.     (Defendant) did some act toward committing the crime of
             (crime attempted) that went beyond just thinking or talking
             about it.

      2.     [He] [She] would have committed the crime except that

             a.     [someone prevented [him] [her] from committing the
                    crime of (crime chargedattempted).]

             [or]

             b.     [[he] [she] failed.]

      The crime of (crime attempted) is defined as (insert elements of crime
attempted);

       Give if applicable. Affirmative Defense. § 777.04(5)(a), Fla. Stat. Carroll v.
State, 680 So. 2d 1065 (Fla. 3d DCA 1996). Harriman v. State, 174 So. 3d 1044
(Fla. 1st DCA 2015).
       It is a defense to the crime of attempt to commitAttempted (crime
chargedattempted) if the defendant abandoned [his] [her] attempt to commit
the offense or otherwise prevented its commission, under circumstances
indicating a complete and voluntary renunciation of [his] [her] criminal
purpose.

      Renunciation is not complete and voluntary where the defendant failed
to complete the crime because of unanticipated difficulties, unexpected


                                           -8-
resistance, a decision to postpone the crime to another time, or circumstances
known by the defendant that increased the probability of being apprehended.

      If you find that the defendant proved by a preponderance of the
evidence that [he] [she] abandoned [his] [her] attempt to commit the offense
or otherwise prevented its commission, under circumstances indicating a
complete and voluntary renunciation of [his] [her] criminal purpose, you
should find [him] [her] not guilty of Attempted (crime attempted).

       If the defendant failed to prove by a preponderance of the evidence that
[he] [she] abandoned [his] [her] attempt to commit the offense or that [he]
[she] otherwise prevented its commission, under circumstances indicating a
complete and voluntary renunciation of [his] [her] criminal purpose, you
should find [him] [her] guilty of Attempted (crime attempted) if all the
elements of the charge have been proven beyond a reasonable doubt.


                            Lesser Included Offenses

      No lesser included offenses have been identified for this offense.

                                    Comments

     As of November 2015October 2017, no case law addressed the issue of
whether renunciation remains a defense to an attempt to commit a crime where
some harm was done.

      This instruction was adopted in 1981 and amended in 2017 [213 So. 3d 680]
and 2018.


                   8.26 SEXUAL CYBERHARASSMENT
                          § 784.049(3), Fla. Stat.

       To prove the crime of Sexual Cyberharassment, the State must prove
the following four elements beyond a reasonable doubt:

      1. (Defendant) published a sexually explicit image of (victim) on an
          internet website.



                                       -9-
      2. The image contained or conveyed (victim’s) personal identification
         information.

      3. (Defendant) did so willfully and maliciously, for no legitimate
         purpose, and with the intent of causing substantial emotional
         distress to (victim).

      4. (Victim) did not consent to the publication.

      Definitions.
      § 784.049(2)(d), Fla. Stat.
      “Sexually explicit image” means any image depicting nudity or
depicting any person engaging in sexual conduct.

      § 784.049(2)(a), Fla. Stat.
      “Image” includes but is not limited to, any photograph, picture, motion
picture, film, video, or representation.

      § 847.001(9), Fla. Stat.
      “Nudity” means showing of the human male or female genitals, pubic
area, or buttocks with less than a fully opaque covering; or the showing of the
female breast with less than a fully opaque covering of any portion thereof
below the top of the nipple; or the depiction of covered male genitals in a
discernibly turgid state. [A mother breastfeeding her baby does not under any
circumstance constitute “nudity,” irrespective of whether or not the nipple is
covered during or incidental to feeding.]

      § 847.001(16), Fla. Stat.
      If necessary, insert additional definitions from § 847.001, Fla. Stat.
      “Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual lewd exhibition of the genitals; actual physical contact with a person’s
clothed or unclothed genitals, pubic area, buttocks, or, if such person is a
female, breast with the intent to arouse or gratify the sexual desire of either
party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed. [A mother breastfeeding her
baby does not under any circumstance constitute “sexual conduct.”]




                                     - 10 -
       § 784.049(2)(b), § 817.568(1)(f), Fla. Stat.
       “Personal Identification Information” means any name or number that
may be used, alone or in conjunction with any other information, to identify a
specific person, including any name, postal or electronic mail address,
telephone number, social security number, date of birth, mother’s maiden
name, official state or United States issued driver’s license or identification
number, alien registration number, government passport number, employer
or taxpayer’s identification number, Medicaid or food stamp account number,
bank account number, credit or debit card number or personal identification
number or code assigned to the holder of a debit card by the issuer to permit
authorized use of such card, unique biometric data such as fingerprint, voice
print, retina or iris image, or other unique physical representation, unique
electronic identification number, address, or routing code, medical record,
telecommunication identifying information or access device, or other number
or information that can be used to access a person’s financial resources.

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

      As of October 2017, the courts had not determined whether the sexual
cyberharassment statute requires actual malice or legal malice. The explanation of
the two can be found in Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). In
the absence of clarification, trial judges must choose one of the following:
      “Maliciously” means intentionally and without any lawful justification.

      “Maliciously” means with ill will, hatred, spite, or an evil intent.

                            Lesser Included Offense

         SEXUAL CYBERHARASSMENT — 784.049(3)
CATEGORY     CATEGORY      FLA. STAT     INS. NO.
ONE          TWO
None
             Attempt       777.04(1)     5.1




                                      - 11 -
                                     Comments

      As of October 2017, it is unclear whether the existence of a prior violation
should be treated as an element of the crime that must be found by the jury or
whether a prior violation can be proven to the judge at sentencing.

       If treated as an element, it would be error to inform the jury of a prior Sexual
Cyberharassment conviction. Therefore, if the information or indictment contains
an allegation of a prior Sexual Cyberharassment conviction, do not read the
allegation and do not send the information or indictment into the jury room. If the
defendant is found guilty of Sexual Cyberharassment, the historical fact of a
previous conviction would be determined beyond a reasonable doubt in a
bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

      As of October 2017, the courts had not determined if a withhold of
adjudication counted as a conviction.

      This instruction was adopted in 2018.



    21.10 TAMPERING WITH A [WITNESS] [VICTIM] [INFORMANT]
                       § 914.22(1), Fla. Stat.

      To prove the crime of Tampering with a [Witness] [Victim] [Informant],
the State must prove the following three elements beyond a reasonable doubt:

      Give as applicable.
      1.    (Defendant) knowingly

               a. used or attempted to use intimidation or physical force
                  against (name of person).

               b. threatened or attempted to threaten (name of person).

               c. engaged in misleading conduct toward (name of person).

               d. offered pecuniary benefit or gain to (name of person).




                                        - 12 -
2.   (Defendant) did so, with intent to cause or induce [any
     person] [(name of person)] to

     a. withhold testimony or withhold a record, document, or other
        object, from an official investigation or official proceeding.

     b. alter, destroy, mutilate, or conceal an object with intent
        to impair the integrity or availability of the object for use
        in an official investigation or official proceeding.

     c. evade legal process summoning [him] [her] to appear as
        a witness, or to produce a record, document, or other
        object, in an official investigation or official proceeding.

     d. be absent from an official proceeding to which [he] [she]
        has been summoned by legal process.

     e. hinder, delay, or prevent the communication to a law
        enforcement officer or judge of information relating to
        the commission or possible commission of [an offense] [a
        violation of a condition of [probation] [parole] [release
        pending a judicial proceeding]].

     f. testify untruthfully in an official investigation or an
        official proceeding.

3.    The [official investigation] [official proceeding] [offense]

     [violation of a condition of [probation] [parole] [release]]
     [affected] [attempted to be affected], involved the
     investigation or proceedingprosecution of a[n]
     [non-criminal offense]
     [misdemeanor]
     [third degree felony]
     [second degree felony]
     [first degree felony [punishable by a term of years not
     exceeding life]]
     [life felony]



                               - 13 -
             [capital felony]
             [offense of indeterminable degree].

      Give if requested and if applicable.
      § 914.22(5)(a), Fla. Stat.
     The State does not have to prove that an official proceeding was pending
or about to be instituted at the time of this alleged offense.

       § 914.22(5)(b), Fla. Stat.
      The State does not have to prove that the testimony or the record,
document, or other thing was admissible in evidence [or free from a claim of
privilege].

      § 914.22(6)(a), Fla. Stat.
     The State does not have to prove that the defendant knew or should
have known that the official proceeding before a judge, court, grand jury, or
government agency, was before a judge or court of the state, a state or local
grand jury, or a state agency.

       § 914.22(6)(b), Fla. Stat.
      The State does not have to prove that the defendant knew or should
have known that the judge is a judge of the state or that the law enforcement
officer is an officer or employee of the state or a person authorized to act for
or on behalf of the state or serving the state as an adviser or consultant.

      Definitions. § 914.21, Fla. Stat. Give as applicable.
      “Misleading conduct” means:

      a. Knowingly making a false statement;

      b. Intentionally omitting information from a statement and
         thereby causing a portion of such statement to be misleading,
         or intentionally concealing a material fact and thereby creating
         a false impression by such statement;

      c. With intent to mislead, knowingly submitting or inviting
         reliance on a writing or recording that is false, forged, altered,
         or otherwise lacking in authenticity;



                                       - 14 -
        d. With intent to mislead, knowingly submitting or inviting
           reliance on a sample, specimen, map, photograph, boundary
           mark, or other object that is misleading in a material respect;
           or

        e. Knowingly using a trick, scheme, or device with intent to
           mislead.

      “Official investigation” means any investigation instituted by a law
enforcement agency or prosecuting officer of the state or a political
subdivision of the state or the Commission on Ethics.

        “Official proceeding” means:
        a. A proceeding before a judge or court or a grand jury;

        b. A proceeding before the Legislature;

        c. A proceeding before a federal agency that is authorized by law;
           or

        d. A proceeding before the Commission on Ethics.

      “Physical force” means physical action against another and includes
confinement.

                             Lesser Included Offense

        The degree of this crime depends on the severity of the underlying offense
that is the subject of the tampering. See § 914.22(2), Fla. Stat.

                                    Comment

        This instruction was adopted in 2013 [131 So. 2d 720] and amended in
2018.




                                       - 15 -
         21.12 CORRUPTION BY [HARM] [THREAT OF HARM]
                   AGAINST A PUBLIC SERVANT
                        § 838.021, Fla. Stat.

      To prove the crime of Corruption by [Harm] [Threat of Harm] Against
a Public Servant, the State must prove the following three elements beyond a
reasonable doubt:
   1. (Defendant) unlawfully [harmed] [threatened unlawful harm] to
      [(victim)] [(victim’s) immediate family member] [a person with whose
      welfare (victim) was interested in].

   2. At the time, (victim) was a public servant.

      Give as applicable.
   3. (Defendant) did so, with the intent or purpose to:
         a. influence the performance of any act or omission which the
             defendant believed to be [or (victim) represented as being,]
             within the official discretion of (victim), in violation of a
             public duty, or in performance of a public duty.

          b. cause or induce (victim) to [use] [exert] [procure the use or
             exertion of] any influence [upon] [with] any other public
             servant regarding any act or omission which the defendant
             believed to be [or (victim) represented as being,] within the
             official discretion of (victim), in violation of a public duty,
             or in performance of a public duty.

      Give if requested and if applicable. § 838.021(2), Fla. Stat.
      The State does not have to prove that the public servant ultimately
sought to be unlawfully influenced was qualified to act in the desired way, that
the public servant had assumed office, that the matter was properly pending
before [him] [her] or might by law properly be brought before [him] [her],
that the public servant possessed jurisdiction over the matter, or that [his]
[her] official action was necessary to achieve the defendant’s purpose.




                                      - 16 -
     Definitions. § 838.014, Fla. Stat.
     § 838.014(5), Fla. Stat.
     “Harm” means pecuniary or other loss, disadvantage, or injury to the
person affected.

       “Public servant” means:
    a. Any officer or employee of a state, county, municipal, or special
       district agency or entity;

    b. Any legislative or judicial officer or employee;

    c. Any person, except a witness, who acts as a general or special

    d. magistrate, receiver, auditor, arbitrator, umpire, referee,
       consultant, or hearing officer while performing a governmental
       function;

    e. A candidate for election or appointment to any of the positions
       listed above or an individual who has been elected to, but has yet
       to officially assume the responsibilities of public office.

      § 838.014(7)(a) Fla. Stat.
      “Public servant” means any officer or employee of a governmental
entity, including any executive, legislative, or judicial branch officer or
employee.

      Give if applicable. § 838.014(7)(b) and (7)(c), Fla. Stat.
      “Public servant” also includes any person, except a witness, who acts as
a general or special magistrate, receiver, auditor, arbitrator, umpire, referee,
consultant, or hearing officer while performing a governmental function or a
candidate for election or appointment to any of these officer positions; or an
individual who has been elected to, but has yet to officially assume the
responsibilities of, public office.

                            Lesser Included Offense
      No lesser included offenses have been identified for these offenses. There is
no crime of Attempt to Corrupt Public Servant by Threat. See Pagano v. State, 387
So. 2d 349 (Fla. 1980).


                                       - 17 -
     Unlawfully harming a public servant is a second degree felony. Threatening
unlawful harm is a third degree felony. SeeSee § 838.021(3)(a) and (b), Fla. Stat.

                                    Comment
        This instruction was adopted in 2013 [131 So. 3d 720] and amended in
2018.



       25.13(f) [OWNERSHIP] [LEASE] [RENTAL] OF A PLACE FOR
   [[TRAFFICKING IN] [SALE OF] A CONTROLLED SUBSTANCE]
 [MANUFACTURING A CONTROLLED SUBSTANCE INTENDED FOR
                    SALE OR DISTRIBUTION]
                      § 893.1351(1), Fla. Stat.

      Certain drugs and chemical substances are by law known as “controlled
substances.” (Insert name(s) of controlled substance(s)) [is a] [are] controlled
substance[s].

       To prove the crime of [Ownership] [Lease] [Rental] of a Place for
[[Trafficking in] [Sale of] a Controlled Substance] [Manufacturing a
Controlled Substance Intended for Sale or Distribution], the State must prove
the following two elements beyond a reasonable doubt:

        1.   (Defendant) [owned] [leased] [rented] any [place] [structure
              [or part thereof]] [conveyance].

        2.   At that time, (defendant) knew the [place] [structure [or part
             thereof]] [conveyance] would be used for the purpose of
             [Trafficking in (insert name(s) of controlled substance)] [Sale
             of a Controlled Substance] [Manufacture of a Controlled
             Substance that was intended for sale or distribution to
             another].

     Inference. Give if applicable. § 893.1351(4), Fla. Stat.
     You may conclude that cannabis was intended for sale or distribution
upon proof of the possession of 25 or more cannabis plants.



                                      - 18 -
      § 893.02(3), Fla. Stat.
      “Cannabis” means all parts of any plant of the genus Cannabis, whether
growing or not; the seeds thereof; the resin extracted from any part of the
plant; and every compound, manufacture, salt, derivative, mixture, or
preparation of the plant or its seeds or resin.

      Definitions. Give as applicable.
      § 810.011(1), Fla. Stat. Dubose v. State, 210 So. 3d 641 (Fla. 2017).
      A “structure” is any building of any kind, either temporary or
permanent, which has a roof over it together with the curtilage. The
“curtilage” is the enclosed land adjoining the structure. [The enclosure need
not be continuous as it may have an ungated opening for entering and
exiting.]

      § 810.011(3), Fla. Stat.
      A “conveyance” means any motor vehicle, ship, vessel, railroad vehicle
or car, trailer, aircraft, or sleeping car.

      Insert elements of Trafficking alleged, if applicable.

     “Sell” means to transfer or deliver something to another person in
exchange for money or something of value or a promise of money or
something of value.

       § 893.02(15)(a), Fla. Stat.
       “Manufacture” means the production, preparation, propagation,
compounding, cultivating, growing, conversion, or processing of a controlled
substance, either directly or indirectly, by extraction from substances of
natural origin, or independently by means of chemical synthesis, or by a
combination of extraction and chemical synthesis, and includes any packaging
of the substance or labeling or relabeling of its container.

    Give if applicable.
    The term “manufacture” does not include the preparation,
compounding, packaging, or labeling of a controlled substance by:

      1. A practitioner or pharmacist as an incident to his or her
administering or delivering of a controlled substance in the course of his or
her professional practice.


                                       - 19 -
      2. A practitioner, or by his or her authorized agent under the
practitioner’s supervision, for the purpose of, or as an incident to, research,
teaching, or chemical analysis, and not for sale.

                              Lesser Included Offense

       If a person owns, leases, or rents a place knowing that the place will be used
for trafficking, sale or manufacture of drugs, then the person is guilty of
Trafficking, Sale, or Manufacture of drugs as an aider or abettor. Therefore,
Trafficking or Sale or Manufacture are Category One lesser included offenses
depending on what is charged. Moreover, Trafficking can be committed by sale,
purchase, manufacture, delivery, bringing into this state, or actual or constructive
possession of various amounts of drugs. Trial judges must review not only the
evidence but also the charging document to determine all of the appropriate lesser-
included offenses.

                                     Comments

       It is unlawful to sell or manufacture all of the controlled substances listed in
§893.02, Florida Statutes. However, only certain controlled substances qualify for
prosecution under the trafficking statute, § 893.135, Florida Statutes. Accordingly,
the exact nature of the substance must be proven if the State is prosecuting under
the trafficking prong of § 893.1351(1), Florida Statutes.

      A special instruction will be required if the defense is that the defendant did
not know of the illicit nature of the controlled substance. See § 893.101, Fla. Stat.

       § 893.1351(1), Florida Statutes, requires that the place will be used for
certain drug-related activity while § 893.1351(3), Florida Statutes, requires that the
place was being used to manufacture a controlled substance. See Zeigler v. State,
198 So. 3d 1005 (Fla. 1st DCA 2016).

      This instruction was adopted in 2018.




                                         - 20 -
      28.19 RECKLESS [OPERATION OF A VESSEL] [MANIPULATION]
                        § 327.33(1), Fla. Stat.

      To prove the crime of Reckless [Operation of a Vessel] [Manipulation],
the State must prove the following three elements beyond a reasonable doubt:

      1. (Defendant) [operated a vessel] [manipulated any [water skis]
         [aquaplane or similar device]].

      2. (Defendant) did so with a willful or wanton disregard for the
          safety of persons or property.

      3. (Defendant) [operated the vessel] [manipulated the [water skis]
         [aquaplane or similar device]] at a speed or in a manner as to
         [endanger or that was likely to endanger life or limb] [or]
         [injure a person] [or] [damage the property of a person].

      Definitions. Give as applicable.
      § 327.02(30), Fla. Stat.
      “Operate” means to be in charge of, in command of, [or in actual
physical control of] a vessel upon the waters of this state, to exercise control
over or to have responsibility for a vessel’s navigation or safety while the
vessel is underway upon the waters of this state, or to control or steer a vessel
being towed by another vessel upon the waters of the state.

      State v. Davis, 110 So. 3d 27 (Fla. 2d DCA 2013).
      “Vessel” means a boat and includes every description of watercraft,
barge, and airboat, other than a seaplane, on the water used or capable of
being used as a means of transportation on water.

      W.E.B. v. State, 553 So. 2d 323 (Fla. 1st DCA 1989).
      “Willful” means intentionally, knowingly and purposely.

      “Wanton” means with a conscious and intentional indifference to
consequences and with knowledge that damage is likely to be done to persons
or property.




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      § 327.02(32), Fla. Stat.
      “Person” means an individual, partnership, firm, corporation,
association, or other entity.

       Give if applicable and insert additional instructions from § 327.331, Fla.
Stat. as necessary.
       A vessel other than a law-enforcement or rescue vessel that approaches
within [100 feet of a divers-down warning device on a river, inlet, or
navigation channel] [or] [300 feet of a divers-down warning device on waters
other than a river, inlet, or navigation channel] must proceed no faster than
necessary to maintain headway and steerageway. A violation of this law
constitutes Reckless Operation of a Vessel.

                            Lesser Included Offense

     RECKLESS [OPERATION OF A VESSEL] [MANIPULATION] —
                         327.33(1)
CATEGORY ONE       CATEGORY FLA. STAT.        INS. NO.
                   TWO
None
                   Culpable        784.05(1)  8.9
                   Negligence

                                    Comment

      This instruction was adopted in 2018.




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