          Supreme Court of Florida
                                   ____________

                                  No. SC15-2372
                                  ____________


  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—
                    REPORT NO. 2015-08.

                                   [July 7, 2016]

PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Criminal

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

instructions in criminal cases and asks that the Court authorize the amended

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

      The Committee proposes amending the following existing standard criminal

jury instructions: 8.3 (Battery); 21.16 (Falsely Personating an Officer); 23.1

(Maintaining a Place of Prostitution, Lewdness, or Assignation); 23.2 (Soliciting

for the Purpose of Prostitution or a Lewd or Indecent Act); 23.3 (Receiving for the

Purpose of Prostitution, Lewdness or Assignation); 23.4 (Transporting for the

Purpose of Prostitution, Lewdness or Assignation); 23.5 (Offering to Commit,

Committing, or Engaging in Prostitution, Lewdness, or Assignation); 23.6
(Soliciting for Prostitution, Lewdness, or Assignation); 23.7 (Entering for the

Purpose of Prostitution, Lewdness, or Assignation); 28.11 (Driving While License

Suspended, Revoked or Canceled with Knowledge); 29.20 (Abuse of [An Elderly

Person] [A Disabled Adult]); 29.21 (Aggravated Abuse of [An Elderly Person] [A

Disabled Adult]); and 29.22 (Neglect of [An Elderly Person] [A Disabled Adult]).1

      Before filing its report with the Court, the Committee published its proposals

for comment in The Florida Bar News. No comments were received by the

Committee, and the Court did not publish the proposals once filed by the

Committee.

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

instructions 8.3, 21.16, 29.20, 29.21, and 29.22 as proposed by the Committee and

authorize them for publication and use. With respect to the proposals to amend

instructions 23.1–23.7 and 28.11, we decline to use the instant proceedings

authorizing the publication and use of standard jury instructions as the basis for

deciding a substantive issue—i.e., treating the statutory enhancement as an element



       1. As originally filed in its report, the Committee also proposed new
instruction 8.26 (Violation of Injunction for Protection Against [Repeat] [Sexual]
[Dating] Violence). Subsequently, the Committee moved to withdraw its proposal
to add new instruction 8.26, on the basis that existing instruction 8.19 covers the
crime of Violation of an Injunction for Protection Against [Repeat] [Sexual]
[Dating] Violence, as codified in section 784.047, Florida Statutes. The Court
granted the Committee’s motion on April 12, 2016.


                                         -2-
of the crime as opposed to a sentencing factor. Such matters are appropriate for

consideration by this Court only within the context of an actual case or

controversy. See art. V, § 3(b), Fla. Const.; In re Std. Jury Instrs. in Crim. Cases—

Report No. 2015-05, 41 Fla. L. Weekly S140 (Fla. April 7, 2016).

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

opinion, are hereby authorized for publication and use.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. We further caution all interested parties that any

comments associated with the instructions reflect only the opinion of the

Committee and are not necessarily indicative of the views of this Court as to their

correctness or applicability. The instructions as set forth in the appendix shall be

effective when this opinion becomes final.

      It is so ordered.


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

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

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

Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Daytona Beach, Florida; Judge Jerri Lynn Collins,
Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal
Cases, Sanford, Florida; and Barton Neil Schneider, Staff Liaison, Office of the
State Courts Administrator, Tallahassee, Florida,

      for Petitioner




                                       -4-
                                    APPENDIX

                                 8.3 BATTERY
                                § 784.03, Fla. Stat.

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

      Give 1 and/or 2 as applicable.
      1.    [(Defendant) intentionally touched or struck (victim) against
            [his] [her] will.]

      2.    [(Defendant) intentionally caused bodily harm to (victim).]

      Give if the defendant is charged with having a prior conviction for battery,
felony battery, or aggravated battery and after the jury found the defendant guilty.
§ 784.03(2), Fla. Stat.; State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).
      Now that you have found (defendant) guilty of Battery, you must
determine whether the State proved beyond a reasonable doubt that [he] [she]
has a prior conviction for battery [or aggravated battery] [or felony battery].

       “Conviction” means a determination of guilt that resulted from a plea
or trial, regardless of whether [he] [she] was adjudicated guilty or whether
adjudication was withheld.

                            Lesser Included Offenses

                           BATTERY — 784.03
 CATEGORY ONE             CATEGORY TWO      FLA. STAT.              INS. NO.
 None
                          Attempt                      777.04(1)    5.1

                                    Comment

      This instruction was approved in 1981 and amended in 2016.




                                        -5-
              21.16 FALSELY PERSONATING AN OFFICER
                           § 843.08, Fla. Stat.

     To prove the crime of Falsely Personating An Officer, the State must
prove the following [two] [three] elements beyond a reasonable doubt:

      1.    (Defendant) falsely assumed or pretended to be a[n] [police
            officer] [deputy sheriff] [sheriff] [firefighter] [officer of the
            Florida Highway Patrol] [officer of the Fish and Wildlife
            Conservation Commission] [officer of the Department of
            Transportation] [fire or arson investigator of the
            Department of Financial Services] [officer of the
            Department of Financial Services] [officer of the
            Department of Corrections] [correctional probation officer]
            [state attorney] [assistant state attorney] [statewide
            prosecutor] [assistant statewide prosecutor] [state attorney
            investigator] [coroner] [lottery special agent] [lottery
            investigator] [beverage enforcement agent] [watchman]
            [member of the Parole Florida Commission on Offender
            Review] [administrative aide to the Parole Florida
            Commission on Offender Review] [supervisor employed by
            the Parole Florida Commission on Offender Review]
            [representative or personnel of the Department of Law
            Enforcement] [federal law enforcement officer].

      2.    While doing so, (defendant) [took it upon [himself] [herself]
            to act as such an officer] [required [someone] [(name of
            person)] to aid or assist [him] [her] in a matter pertaining to
            the duty of such an officer].

      Give if applicable.
      3.     The impersonation occurred during the commission of a
             felony.

      The court instructs you that (name of felony) is a felony. A[n] (name of
felony) is defined as (insert elements of felony).

     Definitions. Give if applicable.
     § 901.1505, Fla. Stat.
     A federal law enforcement officer is a person who is employed by the
Federal Government as a full-time law enforcement officer, who is

                                       -6-
empowered to effect an arrest for violations of the United States Code, who is
authorized to carry firearms in the performance of her or his duties, and who
has received law enforcement training equivalent to training for Florida law
enforcement officers.

      § 843.08, Fla. Stat.
      A “watchman” means a security officer licensed under Chapter 493 of
the Florida Statutes.

      See other statutes for definitions of other officers, if needed.

      Give if applicable.
      If you find the defendant guilty of Falsely Personating an Officer and
that the impersonation occurred during the commission of a felony, you must
then determine whether the State has proven beyond a reasonable doubt that
the commission of the felony resulted in [death] [or] [personal injury] to
another human being.

                             Lesser Included Offenses

       FALSELY PERSONATING AN OFFICER — 843.08
 CATEGORY ONE    CATEGORY TWO    FLA. STAT. INS. NO.
 None
                 Attempt         777.04(1)    5.1

                                      Comment

      This instruction was adopted in 2013 [122 So. 3d 302] and amended in 2016.



    29.20 ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT]
                        § 825.102(1), Fla. Stat.

      To prove the crime of Abuse of [An Elderly Person] [A Disabled Adult],
the State must prove the following two elements beyond a reasonable doubt:

      1.    (Defendant) knowingly or willfully abused (victim) by:




                                         -7-
            Give as applicable.
            a.    intentionally inflicteding physical or psychological
                  injury upon (victim).

            b.    committeding an intentional act that could reasonably
                  be expected to result in physical or psychological
                  injury to (victim).

            c.    actively encourageding another person to commit an
                  act that resulted in or could reasonably have been
                  expected to result in physical or psychological injury
                  to (victim).

      2.    At the time, (victim) was [an elderly person] [a disabled
            adult].

      Definitions. Give as applicable.
      § 825.101(43), Fla. Stat.
      “Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person’s ability to perform the
normal activities of daily living.

       § 825.101(54), Fla. Stat.
       “Elderly person” means a person 60 years of age or older who is
suffering from the infirmities of aging as manifested by advanced age or
organic brain damage, or other physical, mental, or emotional dysfunctioning,
to the extent that the ability of the person to provide adequately for the
person’s own care or protection is impaired.

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




                                      -8-
                              Lesser Included Offenses

   ABUSE OF [AN ELDERLY PERSON] [A DISABLED ADULT] —
                           825.102(1)
 CATEGORY ONE      CATEGORY TWO       FLA. STAT. INS. NO.
 None
                   Battery            784.03     8.3
                   Attempt            777.04(1)  5.1

                                   Comment

     This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2016.


          29.21 AGGRAVATED ABUSE OF [AN ELDERLY PERSON]
                        [A DISABLED ADULT]
                         § 825.102(2), Fla. Stat.

      To prove the crime of Aggravated Abuse of [An Elderly Person]
[Disabled Adult], the State must prove the following two elements beyond a
reasonable doubt:

     1.     (Defendant)

     Give as applicable.
           a.    committed aggravated battery upon (victim).

            b.    willfully tortured (victim).

            c.    maliciously punished (victim).

            d.    willfully and unlawfully caged (victim).

            e.    knowingly or willfully abused (victim) and in so doing
                  caused great bodily harm, permanent disability, or
                  permanent disfigurement.

     2.     At the time, (victim) was [an elderly person] [a disabled
            adult].




                                      -9-
      Definitions. Give as applicable.
      § 825.101(43), Fla. Stat.
      “Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person’s ability to perform the
normal activities of daily living.

       § 825.101(54), Fla. Stat.
       “Elderly person” means a person 60 years of age or older who is
suffering from the infirmities of aging as manifested by advanced age or
organic brain damage, or other physical, mental, or emotional dysfunctioning,
to the extent that the ability of the person to provide adequately for the
person’s own care or protection is impaired.

     Give if element 1a is charged.
     § 784.045, Fla. Stat.
     In order to prove that an aggravated battery was committed, the State
must prove the following:

      1.    (Defendant) intentionally touched or struck (victim) against
            the will of (victim) or caused bodily harm to (victim).

      2.    In so doing, (defendant) intentionally or knowingly caused
            [great bodily harm] [permanent disability] [permanent
            disfigurement] or [used a deadly weapon].

      Give if applicable.
      A weapon is a “deadly weapon” if it is used or threatened to be used in a
way likely to produce death or great bodily harm.

      Give if element 1b, 1d, or 1e is charged.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987).
      “Willfully” means knowingly, intentionally, and purposely.

       Give if element 1c is charged.
       “Maliciously” means wrongfully, intentionally, and without legal
justification or excuse. Maliciousness may be established by circumstances
from which one could conclude that a reasonable person would not have
engaged in the damaging acts toward the victim (victim) for any valid reason


                                      - 10 -
and that the primary purpose of the acts was to cause the victim (victim)
unjustifiable pain or injury.

      Give if element 1e is charged.
      “Abused” means the [intentional infliction of physical or psychological
injury upon [an elderly person] [a disabled adult]] [commission of an
intentional act that could reasonably be expected to result in physical or
psychological injury to [an elderly person] [a disabled adult]] [active
encouragement of any person to commit an act that results or could
reasonably be expected to result in physical or psychological injury to [an
elderly person] [a disabled adult]].

                           Lesser Included Offenses

           AGGRAVATED ABUSE OF [AN ELDERLY PERSON]
                     [A DISABLED ADULT] — 825.102(2)
 CATEGORY ONE              CATEGORY TWO     FLA. STAT. INS. NO.
 Aggravated Battery if                      784.045    8.4
 Fla. Stat.
 825.102(2)(a), Fla.
 Stat., is charged
 Abuse of An Elderly                        825.102(1) 29.20
 Person or Disabled
 Adult
 Felony Battery if Fla.                     784.041(1) 8.5
 Stat. 825.102(2)(a),
 Fla. Stat., is charged
 Battery if Fla. Stat.                      784.03     8.3
 825.102(2)(a), Fla.
 Stat., is charged
                           Attempt          777.04(1)  5.1

                                  Comment

      This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2016.




                                     - 11 -
  29.22 NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT]
                      § 825.102(3), Fla. Stat.

     To prove the crime of Neglect of [An Elderly Person] [A Disabled
Adult], the State must prove the following three elements beyond a reasonable
doubt:

      1.    (Defendant) was a caregiver for (victim).

      2.    (Victim) was [an elderly person] [a disabled adult].

      3.    (Defendant)

            Give as applicable.
            a.    [willfully] [or] [by culpable negligence] failed or
                  omitted to provide (victim) with the care, supervision,
                  and services necessary to maintain (victim’s) physical
                  or mental health.

            b.    failed to make a reasonable effort to protect (victim)
                  from [abuse], [neglect], [or] [exploitation] by another
                  person.

      Give if the § 825.102(3)(b), Fla. Stat., is charged.
      If you find the defendant guilty of Neglect of [An Elderly Person] [A
Disabled Adult], you must then determine whether the State proved beyond a
reasonable doubt that the defendant’s failure or omission caused [great bodily
harm] [permanent disability] [or] [permanent disfigurement] to (victim).

      Definitions.
      Give if applicable. § 825.101(43), Fla. Stat.
      “Disabled adult” means a person 18 years of age or older who suffers
from a condition of physical or mental incapacitation due to a developmental
disability, organic brain damage, or mental illness, or who has one or more
physical or mental limitations that restrict the person’s ability to perform the
normal activities of daily living.

      Give if applicable. § 825.101(54), Fla. Stat.
      “Elderly person” means a person 60 years of age or older who is
suffering from the infirmities of aging as manifested by advanced age or
organic brain damage, or other physical, mental, or emotional dysfunctioning,

                                      - 12 -
to the extent that the ability of the person to provide adequately for the
person’s own care or protection is impaired.

       Give in all cases. § 825.101(2), Fla. Stat.
       “Caregiver” means a person who has been entrusted with or has
assumed responsibility for the care or the property of [an elderly person] [a
disabled adult]. “Caregiver” includes, but is not limited to, relatives, court-
appointed or voluntary guardians, adult household members, neighbors,
health care providers, and employees and volunteers of facilities. [“Facility”
means any location providing day or residential care or treatment for elderly
persons or disabled adults. The term “facility” may include, but is not limited
to, any hospital, training center, state institution, nursing home, assisted living
facility, adult family-care home, adult day care center, group home, mental
health treatment center, or continuing care community.]

      Give if “willfully” is charged within element 3a.
      Patterson v. State, 512 So. 2d 1109 (Fla. 1stst DCA 1987).
      “Willfully” means knowingly, intentionally, and purposely.

       Give if “culpable negligence” is charged within element 3a.
       I will now define what is meant by the term “culpable negligence”: Each
of us has a duty to act reasonably toward others. If there is a 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 for others.
For negligence to be called culpable negligence, it must be gross and flagrant.
The negligence must be 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 harm.

      Give if element 3a is charged. § 825.102(3)(a), Fla. Stat.
      “Care, supervision, and services necessary to maintain the [elderly
person’s] [disabled adult’s] physical and mental health” include, but are not
limited to, food, nutrition, clothing, shelter, supervision, medicine, and
medical services that a prudent person would consider essential for the well-
being of the [elderly person] [disabled adult].

      Give if “abuse” is charged within element 3b. § 825.102(1), Fla. Stat.
      “Abuse” means the [intentional infliction of physical or psychological
injury upon [an elderly person] [a disabled adult]] [commission of an


                                      - 13 -
intentional act that could reasonably be expected to result in physical or
psychological injury to [an elderly person] [a disabled adult]] [active
encouragement of any person to commit an act that results or could
reasonably be expected to result in physical or psychological injury to [an
elderly person] [a disabled adult]].

      Give if “neglect” is charged within element 3b. § 825.102(3), Fla. Stat.
      Neglect of [an elderly person] [a disabled adult] may be based on
repeated conduct or on a single incident or omission that resulted in, or
reasonably could have been expected to result in, serious physical or
psychological injury, or a substantial risk of death, to [an elderly person] [a
disabled adult].

      If “exploitation” is charged within element 3b, insert the elements from
Instruction 14.9. See § 825.103, Fla. Stat.

                            Lesser Included Offenses

   NEGLECT OF [AN ELDERLY PERSON] [A DISABLED ADULT]
  CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY]
            [PERMANENT DISFIGUREMENT] — 825.102(3)(b)
 CATEGORY ONE           CATEGORY TWO  FLA. STAT. INS. NO.
 Neglect of [An Elderly               825.102(3)(c) 29.22
 Person] [A Disabled
 Adult] Without
 Causing Great Bodily
 Harm, Permanent
 Disability, or
 Permanent
 Disfigurement
 Culpable Negligence                  784.05(2)      8.9
 Inflicting Actual
 Personal Injury, if
 culpable negligence is
 charged
 Culpable Negligence                  784.05(1)      8.9
 Exposing Another
 Person to Personal
 Injury, if culpable
 negligence is charged


                                       - 14 -
                            Comment
This instruction was adopted in 2013 [131 So. 3d 692] and amended in 2016.




                               - 15 -
