Proposed amendments to jury instructions in criminal cases

first_img Comment This instruction was adopted in 2012. 29.17 ALLOWING AN OPEN HOUSE PARTY THAT CAUSED [DEATH] [SERIOUS BODILY INJURY] § 856.015(5), Fla. Stat. To prove the crime of Allowing an Open House Party that Caused [Death] [Serious Bodily Injury], the State must prove the following seven elements beyond a reasonable doubt: 1. (Defendant) was 18 years of age or older. 2. (Defendant) controlled a residence. 3. (Defendant) allowed an open house party at that residence. 4. A minor [possessed] [consumed] a[n] [alcoholic beverage] [drug] at the residence during the open house party.5. (Defendant) knew that the minor [possessed] [consumed] a[n] [alcoholic beverage] [drug] at the residence during the open house party.6. (Defendant) failed to take reasonable steps to prevent the [possession] [consumption] of a[n] [alcoholic beverage] [drug] by the minor at the residence during the open house party.7. Give 7a or 7b as applicable a. By doing so, (defendant) caused or contributed to causing [the death of] [serious bodily injury to] the minor. b. By doing so and as a result of the minor’s consumption of a[n] [alcoholic beverage] [drug] at the open house party, the minor caused or contributed to causing [the death of] [serious bodily injury to] (name of victim) . a. At the time, [his] [her] [driver’s license] [driving privilege] was [suspended] [revoked] [canceled] pursuant to Florida Statute [316.655] [322.26(8)] [322.27(2)] [322.28(2)] [322.28(4)]. b. At the time, [he] [she] did not have a driver’s license. Proposed amendments to jury instructions in criminal cases THE SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES submits the following amended and new instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following instructions: 3.6(o) TRANSFERRED INTENT 8.23 EXTORTION 11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY 11.16(a) DANGEROUS SEXUAL FELONY OFFENDER 16. 11 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD 19.3 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 19.4 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 19.5 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 19.6 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 28.12 OPERATING A MOTOR VEHICLE CARELESSLY OR NEGLIGENTLY CAUSING [SERIOUS BODILY INJURY] [DEATH] [WITHOUT HAVING A DRIVER’S LICENSE] [WHILE DRIVER’S LICENSE CANCELED, SUSPENDED, OR REVOKED FOR SPECIFIED REASON] 29.17 ALLOWING AN OPEN HOUSE PARTY THAT CAUSED [DEATH] [SERIOUS BODILY INJURY] The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in both hard copy and electronic format on or before May 29, 2012.The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court.Please file your comments electronically to [email protected], in the format of a Word document. In addition, mail a hard copy of your comments to: Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900. 3.6(o) TRANSFERRED INTENT If a person intends to [hit] [strike] [shoot] a person, but instead [hits] [strikes] [shoots] a different person, the law transfers the intent to [hit] [strike] [shoot] from the person who was aimed at to the person who was actually [hit] [struck] [shot]. Comment See State v. Brady , 745 So.2d 954 (Fla. 1999) and Nelson v. State , 853 So.2d 563 (4th DCA 2003). This instruction was adopted in 2012. 8.23 EXTORTION §836.05, Fla. Stat. To prove the crime of Extortion, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) [by a [written] [printed] communication] [verbally] maliciously threatened to None 3. The (read from charge) money or other benefit was something of value , benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] and was not authorized by law. 3. (Defendant’s) act was intentionally committed in the presence of a person [he] [she] knew or reasonably should have known was an employee of the [institution] [facility]. Definitions. Give as applicable. § 944.02(8), Fla. Stat. A “state correctional institution” is any prison, road camp, prison industry, prison forestry camp, or any prison camp or prison farm or other correctional facility, temporary or permanent, in which prisoners are housed, worked, or maintained, under the custody and jurisdiction of the Department of Corrections. § 944.710(3), Fla. Stat. A “private correctional facility” is any facility, which is not operated by the Department of Corrections, for the incarceration of adults or juveniles who have been sentenced by a court and committed to the custody of the Department of Corrections. §800.09(1)(a), Fla. Stat. “Employee” means any person employed by or performing contractual services for a public or private entity operating a state correctional institution or a private correctional facility or any person employed by or performing contractual services for the corporation operating the prison industry enhancement programs [or the correctional work programs under part II of chapter 946]. [The term also includes any person who is a parole examiner with the Parole Commission.] The words “lewd” and “lascivious” mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. §800.04(1)(a), Fla. Stat. “Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. §847.001(13), Fla. Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself. Definition s. § 838.014(6), Fla. Stat. “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 magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (d) A candidate for election or appointment to any of the positions listed in (a), (b), or (c), or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. § 838.014(1), Fla. Stat. “Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law. § 838.014( 6 4 ), Fla._Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that a (office of person bribed) is a public servant. Give if applicable. § 838.016(3), Fla._Stat. In order for the defendant to be guilty, it It is not necessary for the State to prove that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable. § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. Lesser Included Offenses Comment Effective October 1, 2012, if the photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes sexual conduct by more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense.This instruction was adopted in 2008 [995 So. 2d 489] and 2012. 19.3 UNLAWFUL COMPENSATION OR REWARD OF TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR § 838.016(1), Fla. _ Stat. To prove the crime of Unlawful Compensation or Reward to of a Public Servant for Official Behavior , the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) public servant . Definitions. § 322.01(27), Fla. Stat. “Motor vehicle” means any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles. Give if applicable. § 316.003(2), Fla. Stat. “Motorized bicycle” means a bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position or a scooter or similar device. § 316.1925 Fla. Stat. “Careless” means failing to operate a motor vehicle in a careful and prudent manner under the circumstances, so as to endanger life, limb, or property. “Negligent” means the failure to use reasonable care under the circumstances. Give as applicable. § 322.01(40), Fla. Stat. “Suspended” means the privilege to drive a motor vehicle has been temporarily withdrawn. § 322.01(36), Fla. Stat . “Revoked” means the privilege to drive a motor vehicle has been terminated. § 322.01(5), Fla. Stat. “Canceled” means that a driver’s license has been declared void and terminated. Lesser Included Offenses CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. d. expose another person to disgrace. Definition s. § 838.014(6), Fla. Stat. “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 magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (d) A candidate for election or appointment to any of the positions listed in (a), (b), or (c), or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. § 838.014(1), Fla. Stat. “Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law. § 838.014( 6 4 ), Fla._Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that a (office of person bribed) is a public servant. Give if applicable. § 838.016(3), Fla._Stat. In order for the defendant to be guilty, it It is not necessary for the State to prove that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was [given] [offered] [promised] was accomplished or was within the official discretion or public duty of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable. § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. Lesser Included Offenses Neither a victim’s lack of chastity nor a victim’s consent is a defense to the crime charged. Lesser Included Offenses Give if applicable. Dudley v. State, 634 So. 2d 1093 (Fla. 2 nd DCA 1994). It is not necessary for the State to prove the actual intent to do harm nor the ability to carry out the threat. Definition. Dudley v. State, 634 So. 2d 1093 (Fla. 2 nd DCA 1994). “Maliciously” means intentionally and without any lawful justification. Lesser Included Offenses No lesser included offenses have been identified for this crime. Comment Threats to cause mental or psychological damage are prohibited under this statute. Duan v. State, 970 So. 2d 903 (Fla. 1 st DCA 2007). This instruction was adopted in 2012. 11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY § 800.09, Fla. Stat. To prove the crime of Lewd or Lascivious Exhibition by a Detainee in the Presence of an Employee of a Facility, the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) was detained in a [state correctional institution] [private correctional facility]. 2. While detained, (defendant) intentionally Give as applicable. a. masturbated. b. exposed [his] [her] genitals in a lewd or lascivious manner. c. committed [a sexual act] [sadomasochistic abuse] [sexual bestiality] [the simulation of any act involving sexual activity] that did not involve actual physical or sexual contact with a victim. Attempt if only “gave” is charged777.04(1)5.1 No lesser included offenses have been identified for this offense. Comment § 838.016(1), Fla. Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given.This instruction was adopted in 1981 and amended in September 2005 [911 So. 2d 766] and 2012. 19.5 UNLAWFUL COMPENSATION OR REWARD OF TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR § 838.016(2), Fla._Stat. To prove the crime of Unlawful Compensation or Reward to of a Public Servant for Official Behavior , the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a ( office of person bribed) a public servant . Definition s. § 838.014(6), Fla. Stat. “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 magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (d) A candidate for election or appointment to any of the positions listed in (a), (b), or (c), or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. § 838.014(1), Fla. Stat. “Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law. § 838.014( 6 4 ), Fla. Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that a (office of person bribed) is a public servant. Give if applicable. § 838.016(3), Fla._Stat. In order for the defendant to be guilty, it It is not necessary for the State to prove that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was requested or solicited was accomplished or was within the official discretion or public duty of the defendant. Give if applicable. § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. Lesser Included Offenses CATEGORY ONECATEGORY TWOFLA. STATINS. NO. Comment This instruction was adopted in 2012. 16. 11 [ POSSESSION ][CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD § 827.071(5) (a), Fla. Stat. To prove the crime of [ Possession ] [Control] [Intentional Viewing] of Material including Sexual Conduct by a Child, the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) [ knowingly possessed ] [knowingly controlled] [intentionally viewed] a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] . 2. The [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] included, in whole or in part, sexual conduct by a child less than 18 years of age. Proposed amendments to jury instructions in criminal cases CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future performance, nonperformance, or violation of any act or omission of (person bribed) that 3. (Defendant) knew that the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included sexual conduct by a child less than 18 years of age. Definitions. “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. Give if applicable. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” Give as applicable. “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. “Simulated” means the explicit depiction of “sexual conduct,” as defined above, which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks. Lesser Included Offenses Attempt777.04(1)5.1 None 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) money or some other benefit to (person bribed) . e. expose any secret affecting another person. ALLOWING AN OPEN HOUSE PARTY THAT CAUSED [DEATH][SERIOUS BODILY INJURY]— 856.015(5) Give 4a or 4b as applicable. a. [ (defendant) believed to be Attempt777.04(1)5.1 Definitions. § 816.015, Fla. Stat. “Alcoholic beverage” means distilled spirits and any beverage containing 0.5 percent or more alcohol by volume. “Control” means the authority or ability to regulate, direct, or dominate. “Drug” means a controlled substance. The court instructs you that (name of controlled substance) is a drug under Florida law. “Minor” means an individual not legally permitted by reason of age to possess alcoholic beverages pursuant to Florida law. The court instructs you that the legal drinking age in Florida is 21. “Open house party” means a social gathering at a residence. The term does not include the use of alcoholic beverages at legally protected religious observances or activities. “Residence” means a home, apartment, condominium, or other dwelling unit. “Serious bodily injury” means an injury to any person which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Lesser Included Offenses [within [his] [her] official discretion].] [in violation of [his] [her] public duty].] [in performance of [his] [her] public duty].] Unnatural and lascivious act800.0211.8 b. [was represented to (person making bribe) as being [within the official discretion of (person sought to be influenced) ].] [in violation of the public duty of (person sought to be influenced) ].] [in performance of the public duty of (person sought to be influenced) ].] 4. The [request] [solicitation] [acceptance] [agreement to accept or acceptance ] was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of (defendant) that Give 4a or 4b as applicable. b. [ (person bribed) represented as being May 1, 2012 PUBLIC SERVANT Regular News [within the official discretion of (person sought to be influenced) ].] [in violation of a public duty of (person sought to be influenced) ].] [in performance of a public duty of (person sought to be influenced) ].] [within the official discretion of (person bribed) ].] [in violation of a public duty of (person bribed) ].] [in performance of a public duty of (person bribed) ].] Give as applicable. a. accuse another person of any [crime][offense]. b. injure another person. c. injure another person’s [property][reputation]. BRIBERY BY PUBLIC SERVANT — 838.016(2) 3. As a result of the careless or negligent operation, (defendant) caused [the death of (victim) ] [serious bodily injury to (victim) ] . center_img Attempt if only “give” is charged777.04(1)5.1 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) money or some other benefit to (person bribed) . 3. The (read from charge) money or other benefit was something of value , benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] and was not authorized by law. [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD – § 827.071(5)(a) b. [was represented to (defendant) as being Comment § 838.016(1), Fla. Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, a special instruction must be given.This instruction was adopted in 1981 and amended in 2005 [911 So. 2d 766] and 2012. 19.4 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR § 838.016(1), Fla._Stat. To prove the crime of Unlawful Compensation or Reward by a Public Servant for Official Behavior , the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) public servant . [within the official discretion of (person sought to be influenced) ].] [in violation of the public duty of (person sought to be influenced) ].] [in performance of the public duty of (person sought to be influenced) ].] CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. 3. The (read from charge) money or other benefit was something of value , benefit, or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] and was not authorized by law. §847.001(15), Fla. Stat. “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. §800.04(1)(d), Fla. Stat. “Victim” means a person upon whom the acts described above was committed or attempted or a person who has reported these acts to a law enforcement officer. Allowing an Open House Party856.015(4) 3. The (read from charge) money or other benefit was something of value , benefit, or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] and was not authorized by law. LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY — 800.09 4. The [gift] [offer] [promise] was corruptly made for the past, present or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission that Give 4a or 4b as applicable. 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept or accepted ] from (person making bribe) the thing described in the charge in this case as (read from charge) money or some other benefit from (person making bribe) . No Valid Driver’s License if 322.34(6)(a) is charged.322.03 28.9 19.3 UNLAWFUL COMPENSATION OR REWARD OF TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 838.016(1) None 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept or accepted ] from (person making bribe) the thing described in the charge in this case as (read from charge) money or some other benefit from (person making bribe) . CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. 4. The [request] [solicitation] [acceptance] [agreement to accept or acceptance ] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission which Give 4a or 4b as applicable. [within [his] [her] official discretion].] [in violation of [his] [her] public duty].] [in performance of [his] [her] public duty].] Definition s. § 838.014(6), Fla. Stat. “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 magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (d) A candidate for election or appointment to any of the positions listed in (a), (b), or (c), or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. § 838.014(1), Fla. Stat. “Benefit” means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law. § 838.014( 6 4 ), Fla. Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that a (office of person bribed) is a public servant. Give if applicable. § 838.016(3), Fla. Stat. In order for the defendant to be guilty, it It is not necessary for the State to prove that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable. § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. Lesser Included Offenses No lesser included offenses have been identified for this offense. None Comment § 838.016(1), Fla. Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given.This instruction was adopted in 1981 and amended in September 2005 [911 So. 2d 766] and 2012. 19.6 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR § 838.016(2), Fla._Stat. To prove the crime of Unlawful Compensation or Reward by a Public Servant for Official Behavior , the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) a public servant . Give as applicable. a. extort money or any pecuniary advantage whatsoever. b. compel (person threatened) or any other person to [do any act] [or] [refrain from doing any act] against [his] [her] will. None a. [ (defendant) believed to be [within the official discretion of (person sought to be influenced) ].] [in violation of a public duty of (person sought to be influenced) ].] [in performance of a public duty of (person sought to be influenced) ].] No lesser included offenses have been identified for this offense. Comment § 838.016(1), Fla. Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given.This instruction was adopted in 1981 and amended in September 2005 [911 So. 2d 766] and 2012. 28.12 OPERATING A MOTOR VEHICLE CARELESSLY OR NEGLIGENTLY CAUSING [SERIOUS BODILY INJURY] [DEATH] [WITHOUT HAVING A DRIVER’S LICENSE] [WHILE DRIVER’S LICENSE CANCELED, SUSPENDED, OR REVOKED FOR SPECIFIED REASON] § 322.34(6)(a) or (b), Fla. Stat. To prove the crime of Operating a Motor Vehicle Carelessly or Negligently Causing [Serious Bodily Injury] [Death] [Without Having a Driver’s License] [While Driver’s License Suspended, Revoked, Canceled for Specified Reason], the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) operated a motor vehicle in a careless or negligent manner. 2. Give 2a or 2b as applicable 28.12 OPERATING A MOTOR VEHICLE CARELESSLY OR NEGLIGENTLY CAUSING [SERIOUS BODILY INJURY] [DEATH] [WITHOUT HAVING A DRIVER’S LICENSE] [WHILE DRIVER’S LICENSE CANCELED, SUSPENDED, OR REVOKED FOR SPECIFIED REASON] § 322.34(6)(a) or (b) See State v. Werner, 609 So.2d 585 (Fla. 1992). “In the presence of” means that a victim saw, heard, or otherwise sensed that the act was taking place. f. impute [any deformity] [ lack of chastity] to another person. 2. (Defendant) did so with the intent to 19.5 UNLAWFUL COMPENSATION OR REWARD OF TO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR 838.016(2) b. [ (defendant) represented as being CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. a. [ (person making bribe) believed to be CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. a. [ (Person making bribe) believed to be Attempt if only “giave” is charged777.04(1)5.1 [within the official discretion of (defendant) ].] [in violation of a public duty of (defendant) ].] [in performance of a public duty of (defendant) ].] Comment This instruction was adopted in 2012.last_img

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