In re Standard Jury Instructions in Criminal Cases Report No. 2011-05 (Revised Opinion)
Annotate this Case
Download PDF
Supreme Court of Florida
____________
No. SC11-2517
____________
IN RE: STANDARD JURY INSTRUCTIONS
IN CRIMINAL CASES—REPORT NO. 2011-05.
[April 25, 2013]
REVISED OPINION
PER CURIAM.
The Supreme Court Committee on Standard Jury Instructions in Criminal
Cases (Committee) has submitted a report proposing three new standard criminal
jury instructions and amendments to an existing standard criminal jury instruction.
We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Committee proposes that the Court authorize for publication and use
new instruction 3.9(f) – Eyewitness Identification, new instruction 3.6(m) –
Affirmative Defense: Temporary Possession of Controlled Substance for Legal
Disposal, and new instruction 3.6(n) – Affirmative Defense: Controlled Substance
was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription.
The Committee also proposes amending criminal jury instruction 3.13 –
Submitting Case to Jury.
Before filing its report with the Court, the Committee published its proposals
for comment. Multiple comments were received by the Committee on its proposed
new instructions. No comments were received on the proposed amendments to
instruction 3.13. Upon considering the comments, the Committee modified each
of its proposed new instructions.
After the Committee filed its report, which included a minority report, the
Court published the Committee’s proposals for comment. Four comments were
filed concerning the proposed new instructions. No comments were filed
concerning the proposed amendments to instruction 3.13. The Committee filed a
response to the comments.
Having considered the Committee’s report, the minority report, the
comments filed, and the Committee’s response, we authorize for publication and
use amended instruction 3.13 as proposed by the Committee. We also authorize
for publication and use the new instructions proposed by the Committee, with
minor modifications to new instruction 3.6(n).
New instruction 3.6(n) instructs a jury that possession of a controlled
substance lawfully obtained from a practitioner or pursuant to a valid prescription
is a defense to possession or trafficking in a controlled substance. The new
instruction includes the definitions contained in section 893.02, Florida Statutes
(2012), for the words “practitioner” and “prescription.” We modify the citation to
-2-
section 893.02 in each definition to indicate that the definition for the word
“practitioner” stems from subsection (21) of section 893.02, and the definition for
the word “prescription” stems from subsection (22) of section 893.02. We also
modify the definition for the word “prescription” contained in new instruction
3.6(n). Consistent with section 893.02(22), we amend the definition of
“prescription” to include prescriptions issued by practitioners licensed in a state
other than Florida.
Accordingly, we hereby authorize for publication and use the instructions as
they appear in the attached appendix. 1 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. New
language is indicated by underlining and deleted language is indicated by struck1. 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-
through type. The instructions as set forth in the appendix shall be effective when
this opinion becomes final.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceedings – Supreme Court Committee on Standard Jury Instructions Criminal Cases
Honorable Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard
Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, Florida; and
Samantha Lee Ward, Past Chair, Supreme Court Committee on Standard Jury
Instructions in Criminal Cases, Thirteenth Judicial Circuit, Tampa, Florida,
Richard Hayes Combs, Office of The State Attorney, Quincy, Florida,
for Petitioner,
Richard W. Mantei, Assistant State Attorney, Fourth Judicial Circuit, Jacksonville,
Florida; Charmaine Millsaps, Assistant Attorney General, Tallahassee, Florida;
Seth Elliot Miller and Michael J. Minerva, Innocence Project of Florida,
Tallahassee, Florida and Karen A. Newirth, Innocence Project, Inc., New York,
New York; and Carol Stafford Haughwout, Public Defender, Fifteenth Judicial
Circuit, West Palm Beach, Florida,
Responding with comments
-4-
APPENDIX
3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF
CONTROLLED SUBSTANCE FOR LEGAL DISPOSAL
It is a defense to the charge of [possession of a controlled substance]
[trafficking via possession] for a person to briefly possess a controlled
substance for the sole purpose of legal disposal. In order to find the defendant
briefly possessed a controlled substance for the sole purpose of legal disposal,
you must find all of the following:
1.
(Defendant) possessed the controlled substance.
2.
(Defendant) acquired the controlled substance without unlawful
intent.
3.
The possession of the controlled substance was brief and
(defendant) sought to dispose of the controlled substance without
delay.
4.
The temporary possession was solely for the purpose of legal
disposal.
Definitions.
“Legal disposal” means to destroy or throw away the controlled
substance or to turn in the controlled substance to a law enforcement officer.
This defense does not apply if (defendant) disposed of or surrendered a
controlled substance because [he] [she] believed a law enforcement officer had
discovered, or would have imminently discovered that [he] [she] was in
possession of a controlled substance.
There is no statute for the defense of “legal disposal” and the case law is
silent as to (1) which party bears the burden of persuasion of the affirmative
defense and (2) the standard for the burden of persuasion. Under the common law,
defendants had both the burden of production and the burden of persuasion on an
affirmative defense by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
-5-
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
If burden of persuasion is on the defendant:
If you find that defendant proved (insert appropriate burden of
persuasion) that [he] [she] temporarily possessed the controlled substance
solely for legal disposal, you should find [him] [her] not guilty. If the
defendant did not prove (insert appropriate burden of persuasion) that [he] [she]
temporarily possessed the controlled substance solely for legal disposal, you
should find [him] [her] guilty if all the elements of the charge have been
proven beyond a reasonable doubt.
If burden of persuasion is on the State:
If you find that the State proved (insert appropriate burden of
persuasion) that the defendant did not temporarily possess the controlled
substance solely for legal disposal, you should find [him] [her] guilty, if all of
the elements of the charge have been proven beyond a reasonable doubt.
However, if you are not convinced (insert appropriate burden of persuasion)
that the defendant did not temporarily possess the controlled substance solely
for legal disposal, you should find [him] [her] not guilty.
Comment
See Ramsubhag v. State, 937 So. 2d 1192 (Fla. 4th DCA 2006) and Stanton
v. State, 746 So. 2d 1229 (Fla. 3d DCA 1999).
This instruction was adopted in 2013.
-6-
3.6(n) AFFIRMATIVE DEFENSE: CONTROLLED SUBSTANCE
WAS LAWFULLY OBTAINED FROM A PRACTITIONER OR
PURSUANT TO A VALID PRESCRIPTION
§§ 499.03(1), 893.13(6)(a) Fla. Stats.
It is a defense to the charge of [possession] [trafficking via possession]
for a person to possess a controlled substance which [he] [she] lawfully
obtained from a practitioner or pursuant to a valid prescription or order of a
practitioner while acting in the course of his or her professional practice.
Like all affirmative defenses and pursuant to § 893.10(1), Fla. Stat., the
burden of going forward with evidence of the defense is upon the defendant. Fla.
Stats. 893.10(1), 893.13(6)(a), and 499.03(1) are silent, however, as to the burden
of persuasion for the affirmative defense. Under the common law, defendants had
both the burden of production and the burden of persuasion on an affirmative
defense by a preponderance of the evidence.
The Florida Supreme Court has often decided, however, that once a
defendant meets the burden of production on an affirmative defense, the burden of
persuasion is on the State to disprove the affirmative defense beyond a reasonable
doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the
absence of case law, trial judges must resolve the issue via a special instruction.
See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
For example, if the burden to prove the affirmative defense is on the
defendant under the preponderance of the evidence standard.
If you find the defendant proved by a preponderance of the evidence
that [he] [she] lawfully obtained the controlled substance from a practitioner
or pursuant to a valid prescription or order of a practitioner while acting in
the course of his or her professional practice, you should find [him] [her] not
guilty of [possession of a controlled substance] [trafficking via possession]. If
the defendant did not prove by a preponderance of the evidence that [he] [she]
lawfully obtained the controlled substance from a practitioner or pursuant to
a valid prescription or order of a practitioner while acting in the course of his
or her professional practice, you should find [him] [her] guilty, if all the
elements of the charge have been proven beyond a reasonable doubt.
Or, if the burden of disproving the affirmative defense is on the State under
the beyond a reasonable doubt standard.
If you find that the State proved beyond a reasonable doubt that the
defendant did not lawfully obtain the controlled substance from a practitioner
-7-
or pursuant to a valid prescription or order of a practitioner while acting in
the course of his or her professional practice, you should find [him] [her]
guilty, if all of the elements of the charge have also been proven beyond a
reasonable doubt. However, if you have a reasonable doubt as to whether the
defendant lawfully obtained the controlled substance from a practitioner or
pursuant to a valid prescription or order of a practitioner while acting in the
course of his or her professional practice, you should find [him] [her] not
guilty of [possession of a controlled substance] [trafficking via possession].
Definitions.
§ 893.02(21), Fla. Stat.
“Practitioner” means a physician licensed pursuant to chapter 458, a
dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to
chapter 474, an osteopathic physician licensed pursuant to chapter 459, a
naturopath licensed pursuant to chapter 462, or a podiatric physician licensed
pursuant to chapter 461, provided such practitioner holds a valid federal
controlled substance registry number.
§ 893.02(22), Fla. Stat.
“Prescription” means and includes an order for drugs or medicinal
supplies written, signed, or transmitted by word of mouth, telephone,
telegram, or other means of communication by a duly licensed practitioner
licensed by the laws of the state to prescribe such drugs or medicinal supplies,
issued in good faith and in the course of professional practice, intended to be
filled, compounded, or dispensed by another person licensed by the laws of the
state to do so. The term also includes an order for drugs or medicinal supplies
so transmitted or written by a physician, dentist, veterinarian, or other
practitioner licensed to practice in a state other than Florida if the pharmacist
called upon to fill the order determines, in the exercise of his or her
professional judgment, that the order was issued pursuant to a valid patientphysician relationship, that it is authentic, and that the drugs or medicinal
supplies ordered are considered necessary for the continuation of treatment of
a chronic or recurrent illness.
Comment
A special instruction is necessary where there is evidence that the defendant
acted as an agent for the person who had a prescription. See McCoy v. State, 56 So.
3d 37 (Fla. 1st DCA 2010).
-8-
It is undecided whether a defendant may rely on the prescription defense
when he or she is charged with Possession With Intent. See Celeste v. State, 79 So.
3d 898 (Fla. 5th DCA 2012); Ayotte v. State, 67 So. 3d 330 (Fla. 1st DCA 2011);
and Wagner v. State, 88 So. 3d 250 (Fla. 4th DCA 2012).
See Knipp v. State, 67 So. 3d 376 (Fla. 4th DCA 2011) regarding the
availability of the prescription defense for a person who obtained the prescription
in violation of the doctor shopping statute.
This instruction was adopted in 2013.
-9-
3.9(f) 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.
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.
Comment
This instruction was adopted in 2013.
- 10 -
3.13 SUBMITTING CASE TO JURY
In just a few moments you will be taken to the jury room by the [court
deputy] [bailiff]. The first thing you should do is elect choose a foreperson
who will preside over your deliberations, like a chair per son of a meeting. The
foreperson should see to it that your discussions are carried on in an
organized way and that everyone has a fair chance to be heard. It is also the
foreperson's job to sign and date the verdict form when all of you have agreed
on a verdict in this case and to bring the verdict form back to the courtroom
when you return.
During deliberations, jurors must communicate about the case only
with one another and only when all jurors are present in the jury room. You
are not to communicate with any person outside the jury about this case. Until
you have reached a verdict, you must not talk about this case in person or
through the telephone, writing, or electronic communication, such as a blog,
twitter, e-mail, text message, or any other means. Do not contact anyone to
assist you during deliberations. These communications rules apply until I
discharge you at the end of the case. If you become aware of any violation of
these instructions or any other instruction I have given in this case, you must
tell me by giving a note to the [court deputy] [bailiff].
If you need to communicate with me, send a note through the [court
deputy] [bailiff], signed by the foreperson. If you have questions, I will talk
with the attorneys before I answer, so it may take some time. You may
continue your deliberations while you wait for my answer. I will answer any
questions, if I can, in writing or orally here in open court.
Y our ver dict finding the defendant either guilty or not guilty must be
unanimous. T he ver dict must be the ver dict of each j ur or , as well as of the
j ur y as a whole.
Give if applicable.
During the trial, [an item] [items] [was] [were] received into evidence as
[an] exhibit[s]. You may examine whatever exhibit[s] you think will help you
in your deliberations.
Give a or b as appropriate.
a.
[The[se] exhibit[s] will be sent into the jury room with you when
you begin to deliberate.]
- 11 -
b.
[If you wish to see an[y] exhibit[s], please request that in writing.]
In closing, let me remind you that it is important that you follow the law
spelled out in these instructions in deciding your verdict. There are no other
laws that apply to this case. Even if you do not like the laws that must be
applied, you must use them. For two centuries we have lived by the
constitution and the law. No juror has the right to violate rules we all share.
Comment
This instruction was adopted in 1981 and was amended in 2000, 2003, and
2010, and 2013.
- 12 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.